                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 3, 2015                   520073
________________________________

In the Matter of the Claim of
   DWAYNE J. LOBBAN,
                    Respondent.

PRECINCT SECURITY AND
   INVESTIGATIONS, INC.,                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 20, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

                             __________


      The Zuppa Law Firm PLLC, Garden City (Raymond J. Zuppa of
counsel), for appellant.

     Bruce E. Knoll, Albany, for Dwayne J. Lobban, respondent.

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

                             __________


Lahtinen, J.P.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed January 22, 2014, which ruled that Precinct
Security and Investigations, Inc. is liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant was recruited by Precinct Security and
Investigations, Inc., a company that provides security guards for
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its clients. After his employment ended, claimant applied for
unemployment insurance benefits. The Department of Labor found
that an employer-employee relationship existed between claimant
and Precinct, and that Precinct was therefore liable for
unemployment insurance contributions for remuneration paid to
claimant and others similarly situated. Precinct objected and,
following a hearing, an Administrative Law Judge upheld the
Department's determination. The Unemployment Insurance Appeal
Board affirmed and Precinct now appeals.

      We affirm. "The existence of an employer-employee
relationship is a factual issue for the Board to resolve and its
decision will be upheld if supported by substantial evidence"
(Matter of Ruano [Commissioner of Labor], 118 AD3d 1088, 1088
[2014], lv dismissed 24 NY3d 1039 [2014] [citations omitted]; see
Matter of Mackey [Prometric Inc.–Commissioner of Labor], 120 AD3d
1493, 1494 [2014]). Moreover, "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 Kimberg [Hudacs],
188 AD2d 781, 781 [1992]; see Matter of Klotz [Commissioner of
Labor], 127 AD3d 1459, 1460 [2015]; Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d 1260, 1260
[2014]; Matter of Ray Catena Corp. [Commissioner of Labor], 274
AD2d 819, 820 [2000]).

      Here, the hearing testimony reflects that Precinct places
advertisements on Craigslist seeking security guards, although we
note that claimant was referred to Precinct by another security
guard. Precinct interviews applicants about their experience and
verifies that the applicants are licensed as security guards in
New York. As to claimant, he was assigned by Precinct to a
hotel. Precinct negotiated with the hotel in setting claimant's
rate of pay. Precinct billed the hotel based upon the negotiated
hourly rate and paid claimant after subtracting one third of
claimant's pay as a commission. If claimant could not report to
work on a certain day, he was required to inform Precinct, and
claimant could not find his own replacement. In our view,
substantial evidence supports the Board's decision, despite
evidence in the record that could support a contrary result (see
Matter of Klotz [Commissioner of Labor], 127 AD3d at 1460; Matter
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of Ivy League Tutoring Connection, Inc. [Commissioner of Labor],
119 AD3d at 1261; Matter of Lamar [Eden Tech., Inc.–Commissioner
of Labor], 109 AD3d 1038, 1039 [2013]). Further, we reject
Precinct's claim that it was denied its due process rights by not
having an opportunity to cross-examine claimant. Precinct did
not ask that claimant be called as a witness or request that the
Administrative Law Judge issue a subpoena to ensure claimant's
testimony (see Matter of O'Connor [Howell–Hartnett], 165 AD2d
946, 948 [1990]). In any event, Precinct was not prejudiced by
claimant's absence at the hearing, as the Board's decisions are
supported by the testimony of Precinct's witness (see Matter of
Sweeney [Boeckmann, Jr. & Assoc.–Hudacs], 191 AD2d 911, 912
[1993]; Matter of O'Connor [Howell–Hartnett], 165 AD2d at 948).

     McCarthy, Garry and Egan Jr., JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
