                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 10, 2016                     521294
________________________________

In the Matter of the Claim of
   KRYA A. STEWART,
                    Respondent.

AMERICAN INSTITUTE FOR                       MEMORANDUM AND ORDER
   STUTTERING,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    February 10, 2016

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

                              __________


      Debevoise & Plimpton LLP, New York City (Jyotin R. Hamid of
counsel), for appellant.

     David E. Woodin, Catskill, for Krya A. Stewart, respondent.

                              __________


Rose, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed September 16, 2014, which ruled, among other things,
that claimant was entitled to receive unemployment insurance
benefits.

      Claimant worked as a part-time bookkeeper for American
Institute for Stuttering (hereinafter AIS). After AIS terminated
her employment, she applied for unemployment insurance benefits.
Ultimately, the Unemployment Insurance Appeal Board found, among
other things, that claimant was an employee of AIS and was
entitled to receive benefits. AIS now appeals.
                              -2-                521294

      The sole issue presented is whether an employment
relationship existed between claimant and AIS. It is well
settled that the existence of an employment relationship is a
factual issue for the Board to resolve and its decision will be
upheld if supported by substantial evidence, even if the record
would support a contrary conclusion (see Matter of Concourse
Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter
of Aussicker [Park Ride Fly USA–Commissioner of Labor], 128 AD3d
1264, 1265 [2015], lv dismissed 26 NY3d 944 [2015]). The
relevant 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 (see Matter of Chorekchan [New York City Bd. of
Elections–Commissioner of Labor], 128 AD3d 1311, 1312 [2015];
Matter of Armison [Gannett Co., Inc.–Commissioner of Labor], 122
AD3d 1101, 1102 [2014] lv dismissed 24 NY3d 1209 [2015]).

      Here, claimant responded to a job advertisement placed by
AIS, submitted a resume and was interviewed by AIS's office
manager. She was hired at an agreed-upon hourly wage and
performed her duties at AIS, where she shared an office with the
clinical director and was provided with a computer, bookkeeping
software, an email account and a key to the office. Although she
was not required to work a set schedule, claimant testified that
she was expected to work a total of 24 hours per week. She was
also expected to notify AIS of the specific hours that she would
be working each week and submit documentation detailing her
hours, which had to be reviewed and approved by the clinical
director in order to receive payment. She was paid by means of a
biweekly paycheck, although payroll taxes were not deducted. In
addition, she was required to attend staff meetings when they
dealt with business-related matters, and she interacted with both
AIS personnel as well as its outside certified public accountant
regarding such matters. In our view, the foregoing illustrates
that AIS retained sufficient control over claimant's work to be
considered her employer (see Matter of Williams [Commissioner of
Labor], 268 AD2d 621, 621-622 [2000]; Matter of Buffalo Suzuki
Strings Inc. [Hudacs], 195 AD2d 744, 744 [1993]). Accordingly,
inasmuch as substantial evidence supports the Board's decision,
we decline to disturb it.
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Peters, P.J., Garry, Devine and Clark, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
