                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     517526
________________________________

In the Matter of the Claim of
   NATALIE M. DeROSE,
                    Respondent.

WINSTON RETAIL SOLUTIONS, LLC,              MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(And Two Other Related Claims.)
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                             __________


      Epstein Becker & Green, PC, New York City (Dean L.
Silverberg of counsel), for appellant.

      Francis J. Smith, Albany, for Natalie M. DeRose and others,
respondents.

                             __________


      Appeals from six decisions of the Unemployment Insurance
Appeal Board, filed November 27, 2012, which ruled that Winston
Retail Solutions, LLC was liable for unemployment insurance
contributions based on remuneration paid to claimants and others
similarly situated.

      Winston Retail Solutions, LLC is a retail consulting firm
that provides merchandising coordinators, such as claimants, to
various clothing manufacturers. The merchandising coordinators
assist Winston's clients by, among other things, installing,
stocking and cleaning their display areas in retail stores that
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sell their brand. After claimants ceased working for Winston and
applied for unemployment insurance benefits, the Department of
Labor issued initial decisions finding that Winston was liable
for contributions based upon the exercise of control over
claimants and others similarly situated. An Administrative Law
Judge sustained the decisions following a hearing and the
Unemployment Insurance Appeal Board agreed, ruling that claimants
and others similarly situated were employees of Winston, not
independent contractors. Winston now appeals.

      We affirm. "Whether an employer-employee relationship
exists is a factual question to be resolved by the Board and its
determination in that regard will be upheld so long as it is
supported by substantial evidence, even though there may be
evidence in the record that could have supported a contrary
conclusion" (Matter of Perdue [Environmental Compliance,
Inc.–Commissioner of Labor], 47 AD3d 1139, 1139 [2008] [citations
omitted]; accord Matter of Victor [Aubrey Organics, Inc.–
Commissioner of Labor], 116 AD3d 1327, 1327 [2014]). Here,
claimants were required to sign an agreement with Winston that
provided, among other things, that Winston would set their
schedule and claimants were prohibited from working for any of
Winston's clients during the term of the agreement and for six
months thereafter. Winston provided claimants with orientation
training and training manuals. Claimants were not free to hire
substitutes and had to inform Winston if they could not work on a
given day and Winston would arrange coverage. Winston also
required daily reports from claimants, in some cases, including
pictures, reflecting the services provided each day, and Winston
representatives would review the reports and require claimants to
fix any displays that they found unacceptable. Notwithstanding
the proof in the record that could support a contrary result, the
above constitutes substantial evidence supporting the
determination of the Board that claimants and those similarly
situated were Winston's employees and not independent contractors
(see Matter of Cohen [Just Energy Mktg. Corp.–Commissioner of
Labor], 117 AD3d 1112, 1113 [2014]; Matter of Tekmitchov [Musika
LLC], 110 AD3d 1301, 1301 [2013], lv dismissed 23 NY3d 941
[2014]). Finally, although Winston argues that our prior
decision involving similar employment in Matter of Baker
(P.I.M.M.S. Corp.–Hudacs) (209 AD2d 751 [1994]) is controlling,
                              -3-                  517526

that case is factually distinguishable and we are not persuaded
that a different conclusion is warranted here.

      Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
