                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 8, 2015                    520144
________________________________

In the Matter of the Claim of
   GAYLE S. GLUCK,
                    Respondent.

DAVINCI 3D CORP.,                            MEMORANDUM AND ORDER
                     Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 11, 2015

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

                              __________


     Neil Wallace, Williamsburg, Virginia, for appellant.

     Francis J. Smith, Albany, for Gayle S. Gluck, respondent.

                              __________


Lynch, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 29, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      DaVinci 3D Corp. is engaged in the business of producing
autostereoscopic three dimensional television and conversion
technology that is used to take two dimensional content and
display it in three dimensional format without the use of
glasses. In June 2012, DaVinci retained claimant as a sales and
marketing representative to promote its products to clients
throughout the United States and abroad. Claimant, however,
failed to make any sales and stopped working for DaVinci in this
capacity in December 2012. In July 2013, she filed a claim for
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unemployment insurance benefits, but it was denied on the ground
that she was unable to file a valid original claim because she
did not have a sufficient number of weeks of covered employment
in her base period as she was deemed an independent contractor
during the period that she worked for DaVinci. Claimant
contested the denial and, following a hearing, an Administrative
Law Judge sustained it. The Unemployment Insurance Appeal Board,
however, reversed the Administrative Law Judge's decision and
found that an employment relationship existed between claimant
and DaVinci, thereby entitling her to receive benefits. DaVinci
now appeals.

      Initially, the existence of an employment relationship is a
factual issue for the Board to decide and its determination will
be upheld if supported by substantial evidence (see Matter of
Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736
[1983]; Matter of Pratt [Cellular Sales of N.Y., LLC–Commissioner
of Labor], 128 AD3d 1306, 1306 [2015]). 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 the more important factor to consider (see
Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of Anwer
[Exclusive Fragrance & Cosmetics Inc.–Commissioner of Labor], 114
AD3d 1114, 1114 [2014]).

      Here, claimant knew DaVinci's principal through prior
business dealings and obtained the job after submitting a resume,
but did not go through a formal hiring procedure. Through
negotiation, the principal agreed to pay her $4,000 per month,
plus health insurance, and to reimburse her for business-related
expenses. Her compensation was initially supposed to be a draw
on commission, but turned out to be a salary that she was paid
every other week regardless of sales. Although claimant worked
from home, she provided the principal with weekly activity
reports, maintained regular contact by phone and email, and
received specific instructions on products, pricing, delivery and
clients. In addition, claimant contacted clients who she had
dealings with in the past, but also claimant followed up on leads
directed to her by the principal and met with him at conventions
and product demonstrations. Notably, the principal provided
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claimant with a three dimensional television and other equipment
needed to conduct her sales activities, as well as training on
how to operate the equipment. In view of the foregoing, and
notwithstanding the evidence that would support a contrary
conclusion, substantial evidence supports the Board's finding
that an employment relationship existed between claimant and
DaVinci (see Matter of Pickton [Priority Assist Inc.–Commissioner
of Labor], 127 AD3d 1484, 1486 [2015]; Matter of Miciletto
[Village Wine Imports Ltd.–Commissioner of Labor], 109 AD3d 1035,
1035-1036 [2013]). We, therefore, decline to disturb its
decision.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
