                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   520442
________________________________

In the Matter of the Claim of
   VIRGINIA L. ECKERT,
                    Respondent.

FOX MOBILE DISTRIBUTION LLC,                MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 16, 2015

Before:   McCarthy, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Mintz & Gold LLP, New York City (Scott A. Klein of
counsel), for appellant.

      James W. Cooper, Warrensburg, for Virginia L. Eckert,
respondent.

                             __________


Devine, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed March 26, 2014, which ruled, among other
things, that Fox Mobile Distribution LLC was liable for
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated.

      Fox Mobile Distribution LLC is in the business of
developing and selling applications and products for mobile
devices, such as ring tones and entertainment programs.
Claimant, an experienced writer, worked as a copy writer and
editor for Fox from 2009 to 2010. She thereafter applied for
                              -2-                520442

unemployment insurance benefits, which prompted the Department of
Labor to determine that she was an employee entitled to
unemployment benefits and that Fox was liable for additional
contributions on remuneration paid to claimant and others
similarly employed. Following a hearing, an Administrative Law
Judge sustained that determination and the Unemployment Insurance
Appeal Board agreed. Fox now appeals.

      We affirm. "Whether an employer-employee relationship
exists is a factual question to be resolved by the Board and its
determination in that regard will be upheld so long as it is
supported by substantial evidence, even though there may be
evidence in the record that could have supported a contrary
conclusion" (Matter of DeRose [Winston Retail Solutions, LLC-
Commissioner of Labor], 119 AD3d 1174, 1174-1175 [2014] [internal
quotation marks and citations omitted]; see Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010]). While no factor is determinative and all
aspects of the work arrangement must be examined, "the primary
focus is whether the purported employer exercises control over
the results produced or, more importantly, the means by which
those results are produced" (Matter of Perdue [Environmental
Compliance, Inc.-Commissioner of Labor], 47 AD3d 1139, 1140
[2008] [internal quotation marks and citations omitted]). Here,
the record contains substantial evidence that Fox exercised the
requisite control over claimant's work product to establish her
status as its employee. Claimant was paid at a set hourly wage,
entitled to reimbursement for approved travel and expenses and
provided a cellular phone to test Fox's products (see id.). The
project team leaders – who were employees – educated her
regarding the product, delegated specific writing or editing
tasks, provided direction and set completion deadlines. Claimant
regularly reviewed her work progress with the project manager,
received ongoing feedback and made necessary revisions and
adjustments (see Matter of DeRose [Winston Retail Solutions, LLC-
Commissioner of Labor], 119 AD3d at 1175). She was also required
to come to Fox's office for meetings and reviews of her copy.
The fact that the parties' agreement designated claimant as a
contractor is not dispositive (see Matter of Booth [Eagle Intl.,
Inc.-Commissioner of Labor], 26 AD3d 692, 693 [2006]). Given
this evidence, the Board could properly find that claimant was
                              -3-                  520442

an employee, notwithstanding the record proof that could support
a contrary finding (see Matter of Pratt [Cellular Sales of N.Y.,
LLC-Commissioner of Labor], 128 AD3d 1306, 1307 [2015]).

      We have examined the remaining contention of Fox and have
found it to be without merit.

     McCarthy, J.P., Rose and Lynch, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
