                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520309
________________________________

In the Matter of the Claim of
   DOROTHY A. RAYNOR,
                    Respondent.

SYNCHRONICITY, INC.,                        MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 15, 2015

Before:   Peters, P.J., Garry, Rose and Devine, JJ.

                             __________


      Wickman, Bressler & Geasa, PC, Mattituck (Eric J. Bressler
of counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Dorothy A. Raynor,
respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Linda D. Joseph of counsel), for Commissioner of Labor,
respondent.

                             __________


Garry, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed March 7, 2014, which ruled, among other things, that
Synchronicity, Inc. was liable for additional unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.
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      Synchronicity, Inc. operated a fitness club that offered
its members the opportunity to participate in fitness classes and
to exercise, with or without exercise equipment, at the club.
From 2007 to 2011, claimant was a part-time aerobics instructor
at the fitness facility. After claimant's business relationship
ended with Synchronicity in 2011, she applied for unemployment
insurance benefits, which the Department of Labor determined she
was entitled to as an employee and, as such, that Synchronicity
was liable for additional contributions on remuneration paid to
claimant and others similarly employed as aerobics instructors.
Following a hearing, an Administrative Law Judge agreed with the
Department of Labor's determination. Claimant appealed to the
Unemployment Insurance Appeal Board, which affirmed the decision
of the Administrative Law Judge, prompting this appeal by
Synchronicity.

      We affirm. Initially, it is well settled that the
existence of an employment relationship is a factual issue for
the Board to resolve and its determination will not be disturbed
if supported by substantial evidence (see Matter of Concourse
Opthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of
Hunter [Gannett Co.–Commissioner of Labor], 125 AD3d 1166, 1167
[2015]). "The determination rests not on one single factor, but
consideration is given to whether control was exercised over the
results or the means used to achieve those results, with the
latter factor deemed more important" (Matter of McCollum [Fire
Is. Union Free Sch. Dist.—Commissioner of Labor], 118 AD3d 1203,
1204 [2014] [citations omitted]; see Matter of Joyce [Coface N.
Am. Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1134 [2014]).

      Here, the evidence in the record reflects that
Synchronicity established the fees that members of its fitness
club were required to pay for their membership and claimant's
aerobics classes. Members would pay those fees to Synchronicity
directly; claimant never collected money from any of the club's
members or charged them for attending her aerobics classes.
While there is evidence that claimant's rate of pay was
negotiated, the record also reflects that all instructors at the
fitness club were paid the same amount and were directly paid by
check from Synchronicity once a week. While claimant would bring
some of her own fitness equipment for her classes, including
                              -3-                  520309

music and Pilates equipment, Synchronicity also provided her with
an instruction room and made certain fitness equipment available
to her, such as steps and free weights. Further, claimant was
not allowed to solicit members of the club to attend classes that
she offered at other fitness clubs. Overall, despite the
existence of evidence that could support a contrary conclusion,
the record contains substantial evidence to support the Board's
decision that Synchronicity maintained sufficient control over
claimant's work so as to be considered her employer (see Matter
of Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971,
972 [2006]; Matter of Fitness Plus [Commissioner of Labor], 293
AD2d 909, 910 [2002]). Therefore, we decline to disturb the
Board's decision.

     Peters, P.J., Rose and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
