                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518889
________________________________

In the Matter of KAREN L.
   SPIELBERGER,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.

(And Another Related Claim.)
________________________________


Calendar Date:   September 16, 2014

Before:   Stein, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


     Karen L. Spielberger, New York City, appellant pro se.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed October 18, 2013, which, among other things,
ruled that Optimal Spaces, Inc. was not liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Claimant is a licensed real estate broker who performed
services for Optimal Spaces, Inc., a commercial real estate firm
specializing in leasehold rentals. After claimant stopped
working for Optimal, she applied for unemployment insurance
benefits. The Unemployment Insurance Appeal Board ruled that
claimant was not entitled to receive benefits because Optimal was
not her employer and that, consequently, Optimal was not liable
for unemployment insurance contributions on remuneration paid to
claimant and others similarly situated. Claimant now appeals.

      It is well settled that the existence of an employment
relationship is a factual issue for the Board to decide and its
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determination will be upheld if supported by substantial evidence
(see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d
734, 736 [1983]; Matter of Cohen [Just Energy Marketing Corp.–
Commissioner of Labor], 117 AD3d 1112, 1112 [2014], lv dismissed
24 NY3d 928 [2014]). The pertinent inquiry is whether the
purported employer exercised control over the results produced or
the means used to achieve those results, with control over the
latter being more important (see Matter of Empire State Towing &
Recovery Assn. [Commissioner of Labor], 15 NY3d 433, 437 [2010];
Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984];
Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897 [1982]).

      Evidence was presented that claimant was paid a commission
of 60% of the brokerage fee collected by Optimal, which she
negotiated with Optimal's senior managing director. Moreover,
claimant did not have an established work schedule or work
location, independently maintained her own real estate license,
carried her own business cards and was permitted to and did
receive commissions on referrals from other parties. Notably,
she was not required to report to anyone at Optimal nor was she
required to accept leads that Optimal sent to her. In view of
the foregoing, while we are unable to conclude, as a matter of
law that no employment relationship exists (see Labor Law § 511
[19]), substantial evidence supports the Board's finding that
Optimal did not exercise sufficient control over claimant's work
to be deemed her employer (see Matter of 12 Cornelia Street, Inc.
[Ross], 56 NY2d at 897; Matter of John Lack Assocs. [Commissioner
of Labor], 112 AD3d 1042, 1043-1044 [2013]; Matter of Holleran
[Jez Enters., Inc.–Commissioner of Labor], 98 AD3d 757, 758-759
[2012]; see also Matter of William B. Trilling Assocs. [Roberts],
94 AD2d 919, 920 [1983]; Matter of McCabe & Willig Realty, Inc.
[Ross], 80 AD2d 935, 936 [1981]; compare Matter of Paldiel [Ardor
Realty Corp.–Commissioner of Labor], 288 AD2d 522, 522 [2001];
Matter of Atac [Fashion Realty Group–Commissioner of Labor], 265
AD2d 777, 777 [1997]). To the extent that claimant's testimony
contradicted that of her employer, this was a credibility
question for the Board to resolve (see Matter of Paldiel [Ardor
Realty Corp.–Commissioner of Labor], 288 AD2d at 523; Matter of
Nanwani [Greer Real Estate–Hudacs], 193 AD2d 1023, 1024 [1994]).
Accordingly, we find no reason to disturb its decisions finding
that claimant was not entitled to receive benefits and that
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Optimal was not liable for additional unemployment contributions.

     Stein, J.P., Garry, Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
