                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519592
________________________________

In the Matter of the Claim of
   NIRAV S. JHAVERI,
                    Respondent.

STACY BLACKMAN CONSULTING,                  MEMORANDUM AND ORDER
   INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 24, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


     Sanjeeve K. DeSoyza, Albany, for appellant.

     Bruce E. Knoll, Albany, for Nirav S. Jhaveri, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Commissioner of Labor,
respondent.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed November 5, 2013, which ruled, among other
things, that Stacy Blackman Consulting, Inc. was liable for
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated.

      Stacy Blackman Consulting, Inc. (hereinafter SBC) is
engaged in the business of assisting students who are applying to
business school. Claimant performed that work, and the
Unemployment Insurance Appeal Board ruled that he and others
                              -2-                 519592

similarly situated were SBC's employees.   SBC now appeals.

      "Whether an employee-employer relationship exists 'is a
factual question to be resolved by the Board and we will not
disturb its determination when it is supported by substantial
evidence in the record'" (Matter of Jennings [American Delivery
Solution, Inc.–Commissioner of Labor], 125 AD3d 1152, 1152-1153
[2015] [citation omitted], quoting Matter of McCollum [Fire Is.
Union Free School Dist.–Commissioner of Labor], 118 AD3d 1203,
1203 [2014]). While "[a]n employer-employee relationship
[generally] exists when the evidence shows that the employer
exercises control over the results produced or the means used to
achieve the results," substantial control over other important
aspects of the work is sufficient in cases involving
professionals (Matter of Empire State Towing & Recovery Assn.,
Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; see Matter
of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736-737
[1983]). Inasmuch as substantial evidence does not support the
Board's finding that an employer-employee relationship existed
under either standard, we reverse.

      SBC did not screen claimant, but retained his services
because he had been introduced to its president through a mutual
acquaintance as someone who had gone to business school and was
familiar with the application process. Claimant thereafter
executed an agreement that designated him an independent
contractor. He further negotiated his own fee, was not
reimbursed for expenses, and was not provided with any benefits.
SBC did not train, supervise or otherwise direct claimant in the
performance of his work, although it did require him to turn over
whatever application materials he had helped prepare. SBC also
did not perform any substantive review of claimant's work, did
not require him to attend any meetings or consult with it, and
allowed him to decline assignments and take time off as he saw
fit. Moreover, while the parties' agreement required claimant to
keep sample application materials provided by SBC confidential
and imposed restrictions on his ability to work for competitors
in the field, the president of SBC testified without
contradiction that she had never enforced those provisions and
had permitted claimant to work elsewhere. Under these
circumstances, we are unable to conclude that SBC exercised
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sufficient control over claimant to establish an employer-
employee relationship (see Matter of Jennings [American Delivery
Solution, Inc.–Commissioner of Labor], 125 AD3d at 1153; Matter
of Richins [Quick Change Artistry, LLC–Commissioner of Labor],
107 AD3d 1342, 1344 [2013]; compare Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d 1260, 1261
[2014]).

      The remaining arguments of SBC have been rendered academic
in light of the foregoing.

     Lahtinen, J.P., Garry, Lynch 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
