                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521363
________________________________

In the Matter of the Claim of
   JANE A. RYAN,
                    Respondent.

LA CRUZ RADIATION CONSULTANTS,
   INC.,                                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 24, 2016

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

                             __________


      Jackson Lewis, PC, White Plains (Penny Ann Lieberman of
counsel), for appellant.

     Gordon V. Eddy, Albany, for Jane A. Ryan, respondent.

                             __________


Egan Jr., J.

      Appeal from two decisions of the Unemployment Insurance
Appeal Board, filed September 11, 2014, which ruled, among other
things, that La Cruz Radiation Consultants, Inc. was liable for
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      La Cruz Radiation Consultants, Inc. is in the business of
providing licensed radiation therapists (hereinafter RTs) to its
clients, which include hospitals, clinics and medical practices.
In 2008, La Cruz signed an agreement with claimant, an RT, and,
in January 2009, assigned her to work at its client's clinic in
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Queens. After claimant was told in March 2009 that her services
no longer were needed at the clinic, she applied for unemployment
insurance benefits. The Department of Labor determined that
claimant was an employee of La Cruz but, following a hearing on
La Cruz's appeal, an Administrative Law Judge disagreed, finding
that claimant was not an employee of La Cruz. The Unemployment
Insurance Appeal Board subsequently reversed, determining that
claimant and other similarly situated RTs were employees of La
Cruz, and upheld the initial assessment of unemployment insurance
contributions for claimant and others similarly situated. La
Cruz now appeals.

      We affirm. "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
John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042,
1043 [2013] [citations omitted]; see Matter of Salamanca Nursing
Home [Roberts], 68 NY2d 901, 903 [1986]). "Where, as here,
medical professionals are involved, the pertinent inquiry is
whether the purported employer exercised overall control over the
work performed" (Matter of Goddard [Summit Health, Inc.–
Commissioner of Labor], 118 AD3d 1200, 1201 [2014] [internal
quotation marks and citations omitted], lv dismissed 24 NY3d 975
[2014]; see Matter of Salamanca Nursing Home [Roberts], 68 NY2d
at 903; Matter of Concourse Ophthalmology Assoc. [Roberts], 60
NY2d 734, 736 [1983]; Matter of Lawlor [ExamOne World Wide Inc.–
Commissioner of Labor], 130 AD3d 1345, 1346 [2015]; Matter of
Lustgarten [New York Psychotherapy & Counseling Ctr.–
Commissioner of Labor], 123 AD3d 1212, 1212 [2014]; Matter of
Scinta [ExamOne World Wide Inc.–Commissioner of Labor], 113 AD3d
959, 960 [2013]). Further, "an organization which screens the
services of professionals, pays them at a set rate and then
offers their services to clients exercises sufficient control to
create an employment relationship" (Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d 1260, 1260
[2014] [internal quotation marks and citations omitted]; accord
Matter of Encore Music Lessons LLC. [Commissioner of Labor], 128
AD3d 1313, 1315 [2015]).

      Here, evidence was presented that La Cruz screened the RTs'
credentials and assigned them to its clients to provide radiation
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therapy services, directing them where and when to report. La
Cruz paid the RTs a set rate of $50 per hour, did not take
payroll deductions from their salary and issued 1099 tax forms;
La Cruz required that the RTs submit to it biweekly time sheets
signed by the client's supervisor, and La Cruz, in turn, billed
the clients an increased price for the RTs' services and
collected all payments from the client. Once assigned, the
client determined the RTs' schedule to meet their staffing needs
and whether to continue to use their services or seek a different
referral from La Cruz, and the client's chief radiology therapist
or physician oversaw their work. Under the agreement that
designated the RTs as independent contractors, claimant was
required to call La Cruz and the client if she could not be at
work at the scheduled time, questions regarding payment for
services were directed to La Cruz and the RTs were prohibited
from working directly for the assigned clients or La Cruz
competitors. La Cruz would find replacements for the RTs if they
could not work the schedule set by the client for any reason.
Claimant testified that, on the day that the client informed her
that her services no longer were needed, she was under
consideration to be hired as an employee of the client and,
because the client had not given advance notice of her discharge,
La Cruz reimbursed her for expenses for her travel to the client.
Notwithstanding proof in the record that might support a contrary
conclusion, we find that the foregoing constitutes substantial
evidence to support the Board's decisions that La Cruz, while not
directly supervising claimant's daily RT activities for the
client, retained sufficient overall control over the work
performed by claimant and those similarly situated to establish
an employer-employee relationship (see Matter of Goddard [Summit
Health, Inc.–Commissioner of Labor], 118 AD3d at 1201-1202;
Matter of Scinta [ExamOne World Wide Inc.–Commissioner of Labor],
113 AD3d at 960-961; see also Matter of Encore Music Lessons LLC.
[Commissioner of Labor], 128 AD3d at 1315; Matter of Ivy League
Tutoring Connection, Inc. [Commissioner of Labor], 119 AD3d at
1261; compare Matter of Jean-Pierre [Queens Perioperative Med.
Assoc. PLLC–Commissioner of Labor], 119 AD3d 1206, 1207-1208
[2014]).

      To the extent that La Cruz relied upon an unappealed 2004
letter from an unemployment insurance reviewing examiner
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indicating that its RTs were independent contractors, we note
that this conclusion was reached solely upon information provided
by the employer in that matter, in which this claimant was not
involved. The record now before us does not include the evidence
considered in rendering that letter, which was not a
determination by the Board. Notably, La Cruz's owner testified
that she had been using this RT contractual agreement only since
2006 and, thus, the terms of employment for the RTs prior to that
date are not developed in this record. Accordingly, the record
does not support a finding that the Board failed to follow its
own controlling precedent (see Matter of Bull [Yansick Lbr. Co.–
Sweeney], 235 AD2d 722, 724 [1997], lv dismissed 90 NY2d 913
[1997]). We have examined La Cruz's remaining contentions and
concluded that they do not warrant disturbing the Board's
decisions.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
