                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   520577
________________________________

In the Matter of the Claim of
   ANDREA M. WRIGHT,
                    Respondent.

MID ISLAND THERAPY ASSOCIATES
   LLC, Doing Business as ALL               MEMORANDUM AND ORDER
   ABOUT KIDS,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 22, 2015

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

                             __________


      Clifton Budd & DeMaria, LLP, New York City (Daniel C.
Moreland of counsel), for appellant.

      James W. Cooper, Warrensburg, for Andrea M. Wright,
respondent.

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

                             __________


Garry, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed April 25, 2014, which ruled, among other
things, that Mid Island Therapy Associates, LLC was liable for
additional unemployment insurance contributions on remuneration
paid to claimant.
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      The New York City Department of Education (hereinafter
NYCDOE) administers supplemental educational services in
accordance with the Individuals with Disabilities Education
Improvement Act of 2004 (see generally 20 USC § 1400 et seq., as
added by Pub L 101-476, 104 US Stat 1142). As an approved
provider of such services, Mid Island Therapy Associates, LLC
operates pursuant to a contract with NYCDOE and refers therapists
and certified special education itinerant teachers such as
claimant to preschool children who are identified as having a
disability for the purpose of providing those children with
specially designed individualized instruction in a natural
setting, including at a preschool or home (see Education Law
§ 4410 [1] [k]; 8 NYCRR 200.1 [mm], [yy]; 200.16 [i] [3] [ii];
see generally 8 NYCRR 200.3, 200.16 [f] [2]).

      Claimant executed an independent contractor agreement with
Mid Island and provided special education itinerant services to
three different children in 2010. She applied for unemployment
insurance benefits following the end of this employment. The
Department of Labor determined that claimant was an employee and
that Mid Island was thus liable for additional contributions on
remuneration paid to her. Following a hearing, an Administrative
Law Judge overruled the Department of Labor's determination.
Claimant appealed to the Board, which then reversed the decision
of the Administrative Law Judge. Mid Island appeals.

      We reverse. "Whether an employer-employee relationship
exists is a factual determination for the Board, and its decision
will be upheld if supported by substantial evidence" (Matter of
Hunter [Gannett Co., Inc.–Commissioner of Labor], 125 AD3d 1166,
1167 [2015] [internal quotation marks and citations omitted]; see
Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,
736 [1983]). "[W]here the details of the work performed are
difficult to control because of considerations such as
professional responsibilities, courts have applied the overall
control test, which requires that the employer exercise control
over important aspects of the services performed" (Matter of
Encore Music Lessons LLC [Commissioner of Labor], 128 AD3d 1313,
1314-1315 [2015] [internal quotation marks, ellipsis and
citations omitted]; see Matter of Professional Career Ctr., Inc.
[Commissioner of Labor], 105 AD3d 1219, 1219-1220 [2013]; Matter
                              -3-                520577

of Viig [Hello World Language Ctr., Inc.–Commissioner of Labor],
66 AD3d 1064, 1065 [2009]). Here, however, the evidence in the
record lacks indicia demonstrating the requisite level of
control; rather, the evidence reflects policies and procedures
consistent with NYCDOE and Department of Education regulations
governing the conduct of supplemental education services (see
Matter of Choto v Consolidated Lbr. Transp., Inc., 82 AD3d 1369,
1369-1370 [2011]; Matter of Leazard [TestQuest, Inc.—Commissioner
of Labor], 74 AD3d 1414, 1414-1415 [2010]).

      Although Mid Island would contact claimant to let her know
whether a student in her geographic area needed special education
services, Mid Island did not assign students to claimant; she was
free to accept or reject a referral from Mid Island (see Matter
of Richins [Quick Change Artistry, LLC—Commissioner of Labor],
107 AD3d 1342, 1344 [2013]; Matter of Leazard [TestQuest, Inc.—
Commissioner of Labor], 74 AD3d at 1415). Mid Island also did
not control the scheduling of services, which would be arranged
between the student's parents and claimant (see Matter of Jean-
Pierre [Queens Perioperative Med. Assoc. PLLC—
Commissioner of Labor], 119 AD3d 1206, 1207 [2014]), and did not
dictate the type, location or manner of delivery of the services
that were to be provided, which would be specified in the
student's individualized education program (see Matter of Leazard
[TestQuest, Inc.—Commissioner of Labor], 74 AD3d at 1415; Matter
of Mulholland [Motherly Love Care–Commissioner of Labor], 258
AD2d 855, 856 [1999]; cf. Matter of LaValley [West Firm,
PLLC—Commissioner of Labor], 120 AD3d 1498, 1499 [2014]; see
generally 8 NYCRR 200.4). Once services were provided, any
parental complaints were handled by NYCDOE, not Mid Island, and
if a teacher needed to be replaced, NYCDOE would direct Mid
Island to do so. Mid Island never performed any type of
performance evaluation of claimant (see Matter of Leazard
[TestQuest, Inc.—Commissioner of Labor], 74 AD3d at 1415; Matter
of Jean-Pierre [Queens Perioperative Med. Assoc. PLLC–
Commissioner of Labor], 119 AD3d at 1207-1208). The reporting
requirements governing submission of session and progress notes
also came from NYCDOE, and such notes were neither required nor
reviewed by Mid Island (see Matter of International Student Exch.
[Commissioner of Labor], 302 AD2d 834, 836 [2003]).
                              -4-                  520577

      Claimant was required under the parties' agreement to
maintain her own malpractice insurance and cover her own
expenses, and she was not provided with any supplies or benefits
(see Matter of Jean-Pierre [Queens Perioperative Med. Assoc.
PLLC—Commissioner of Labor], 119 AD3d at 1208; cf. Matter of
LaValley [West Firm, PLLC—Commissioner of Labor], 120 AD3d at
1499). The rate of payment was established by NYCDOE, and, if
Mid Island did not receive payment from NYCDOE, it was not
obliged to remit payment to claimant for services provided to a
student (cf. Matter of LaValley [West Firm, PLLC—Commissioner of
Labor], 120 AD3d at 1499). Accordingly, while some of the
factors cited by the Board — such as Mid Island's right to
enforce a noncompete clause in the agreement — may constitute
some evidence of incidental control over claimant, the record
lacks sufficient evidence to establish overall control over
important aspects of the services performed so as to indicate an
employer-employee relationship (see Matter of Jean-Pierre [Queens
Perioperative Med. Assoc. PLLC—Commissioner of Labor], 119 AD3d
at 1207-1208; Matter of Leazard [TestQuest, Inc.—Commissioner of
Labor], 74 AD3d at 1414-1416; Matter of International Student
Exch. [Commissioner of Labor], 302 AD2d at 835-836; Matter of
Mulholland [Motherly Love Care–Commissioner of Labor], 258 AD2d
at 856-857).

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


      ORDERED that the decisions are reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
