                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521265
________________________________

In the Matter of the Claim of
   KATHLEEN J. RITCH,
                    Respondent.

ISLAND TUTORING CENTER, INC.,               MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(And Another Related Claim.)
________________________________


Calendar Date:   March 22, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Schultz & Associates, PC, Melville (Laura Alto of counsel),
for appellant.

      Catherine A. Barber, Albany, for Kathleen J. Ritch,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.

                             __________


Mulvey, J.

      Appeals from four decisions of the Unemployment Insurance
Appeal Board, filed September 18, 2014, which ruled that Island
Tutoring Center, Inc. was liable for unemployment insurance
contributions on remuneration paid to claimants and others
similarly situated.
                              -2-                521265

      Island Tutoring Center, Inc. (hereinafter ITC) is engaged
in the business of providing general and special education
tutoring services to school districts, private schools and
private clients. To deliver these services, ITC retains private
tutors, including claimants, Kathleen Ritch and Alissa Bianco,
who provide educational tutoring services to ITC's clients.
After claimants' employment with ITC ended, claimants filed
applications for unemployment insurance benefits. The Department
of Labor issued initial determinations finding that claimants
were employees of ITC and that ITC was liable for unemployment
insurance contributions based on remuneration paid to claimants
and other similarly situated tutors working for ITC. ITC
objected on the ground that claimants were independent
contractors, and, following a hearing, an Administrative Law
Judge sustained ITC's objection and overruled the Department's
determinations. Upon administrative appeal, the Unemployment
Insurance Appeal Board reversed the determinations of the
Administrative Law Judge and sustained the Department's initial
determinations. ITC appeals and we affirm.

      "Whether an employer-employee relationship exists is a
factual question to be resolved by the Board and we will not
disturb its determination when it is supported by substantial
evidence in the record" (Matter of Voisin [Dynamex Operations E.,
Inc.—Commissioner of Labor], 134 AD3d 1186, 1187 [2015] [internal
quotation marks and citations omitted]; see Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010]). "An employer-employee relationship exists
when the evidence shows that the employer exercises control over
the results produced or the means used to achieve the results,"
with the latter more important (Matter of Empire State Towing &
Recovery Assn. [Commissioner of Labor], 15 NY3d at 437 [citation
omitted]; see Matter of Pickton [Priority Assist Inc.—
Commissioner of Labor], 127 AD3d 1484, 1486 [2015]).
Significantly, we have previously held that "an organization
which screens the services of professionals, pays them at a set
rate and then offers their services to clients exercises
sufficient control to create an employment relationship" (Matter
of Lobban [Precinct Sec. & Investigations, Inc.—Commissioner of
Labor], 131 AD3d 1294, 1294 [2015] [internal quotation marks and
citations omitted]; accord Matter of Klotz [Blue Perimeter,
                              -3-                521265

Inc.–Commissioner of Labor], 127 AD3d 1459, 1460 [2015]). Here,
the record establishes that ITC advertises for tutors to provide
tutoring services to its clients. Potential tutors, including
Ritch, were interviewed and screened by ITC's owner, Steven
Thode, who would review a prospective tutor's résumé and list of
references. If a prospective tutor was offered employment, he or
she would typically sign a contract, as Bianco did, identifying
that tutor as an independent contractor. That contract provided
that employment was contingent upon a favorable reference and
fingerprint check and verification of employment eligibility.
Although the tutors were permitted to work for other tutoring
companies, the contract also included a provision prohibiting the
tutors from soliciting ITC's clients or students.

      When clients contacted ITC to request tutoring services,
ITC would select a tutor from its database and inform that tutor
of the area of study or subject to be instructed and the number
of tutoring hours required. Although tutors were free to decline
assignments, ITC did not permit tutors to provide their own
substitutes after accepting an assignment. Following provision
of the services, ITC required tutors to fill out time sheets and
its session report forms in order to receive payment. As to
payment, ITC paid its tutors prior to receiving payment from its
clients, reimbursed tutors for certain expenses and loaned tutors
teaching materials from its library when necessary. ITC also
fielded its clients' complaints and feedback concerning the
performance of its tutors and could remove tutors from
assignments if there was a negative complaint.

      While record evidence could support a contrary result, the
foregoing constitutes substantial evidence supporting the Board's
determination that an employer-employee relationship exists (see
Matter of Soo Tsui [Language Servs. Assoc., Inc.–Commissioner of
Labor], 135 AD3d 1098, 1099 [2016]; Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d 1260, 1261
[2014]; Matter of Montalto [Early Intervention Ctr. of
Suffolk—Commissioner of Labor], 263 AD2d 736, 736 [1999]; Matter
of Faculty Tutoring Serv. [Sweeney], 244 AD2d 744, 744 [1997]).
Lastly, contrary to ITC's contention, the Board did not err in
ruling that ITC is liable for contributions on remuneration paid
to all others determined to be similarly situated to claimants
                              -4-                  521265

(see Matter of Mitchum [Medifleet, Inc.—Commissioner of Labor],
133 AD3d 1156, 1157 [2015]; see also Matter of Soo Tsui [Language
Servs. Assoc., Inc.–Commissioner of Labor], 135 AD3d at 1099-
1100).

     Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
