                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     519184
________________________________

In the Matter of the Claim of
   JOHN RAMIREZ,
                    Respondent.

PROPOINT GRAPHICS LLC,                      MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

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

                             __________


      Cozen O'Connor, New York City (Michael C. Schmidt of
counsel), for appellant.

     Francis J. Smith, Albany, for John Ramirez, respondent.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed August 30, 2013, which, among other things,
ruled that Propoint Graphics LLC was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant, a graphic designer, performed services for
Propoint Graphics LLC from October 2011 until January 2012. He
subsequently applied for unemployment insurance benefits. The
Department of Labor ruled that he was eligible to receive
benefits and also assessed Propoint for additional unemployment
insurance contributions based on remuneration paid to claimant
and others similarly situated. Propoint objected and, following
a hearing, an Administrative Law Judge overruled these
                              -2-                519184

determinations. The Unemployment Insurance Appeal Board,
however, reversed and concluded that an employment relationship
existed between Propoint and claimant, as well as others
similarly situated. Propoint now appeals.

      Initially, it is well settled that the existence of an
employment relationship is a factual issue for the Board to
resolve and its determination will not be disturbed if supported
by substantial evidence (see Matter of LaValley [West Firm
PLLC–Commissioner of Labor], 120 AD3d 1498, 1499 [2014]; Matter
of Yoga Vida NYC Inc. [Commissioner of Labor], 119 AD3d 1314,
1314 [2014], lv granted 24 NY3d 909 [2014]). "The determination
rests not on one single factor, but consideration is given to
whether control was exercised over the results or the means used
to achieve those results, with the latter factor deemed more
important" (Matter of McCollum [Fire Is. Union Free Sch. Dist.–
ommissioner of Labor], 118 AD3d 1203, 1204 [2014] [citations
omitted]; see Matter of Yoga Vida NYC Inc. [Commissioner of
Labor], 119 AD3d at 1314).

      Here, claimant responded to a website posting and, after
being interviewed, was selected by Propoint to work on client
projects at a mutually agreed pay rate of $28 per hour. He was
paid every two weeks regardless of whether Propoint received
payment from the client. Although there were no set working
hours, claimant performed most of his work at the employer's
premises, where he was provided with a computer, software and
related items, and he was required to turn in daily time cards.
Propoint did not provide claimant with any leave time or other
benefits, withhold taxes from his paychecks or prohibit him from
working for others, and it required him to sign an independent
contractor agreement. Propoint, however, retained the right to
review claimant's work product and direct him to make changes.
Moreover, the confidentiality provisions of the independent
contractor agreement precluded claimant from including client
projects in his personal portfolio. Inasmuch as the foregoing
demonstrates that Propoint retained control over both the means
and the results of claimant's work, substantial evidence supports
the Board's finding of an employment relationship (see generally
Matter of Limperis [Aufbau Trust–Commissioner of Labor], 9 AD3d
762, 762 [2004]; Matter of Ibarra [Jes Label & Tape Inc.–
                              -3-                  519184

Sweeney], 238 AD2d 664 [1997]). Although Propoint asserts that
the Board's finding is inconsistent with a prior determination of
the Department of Labor that treated another of its graphic
designers as an independent contractor, the record does not
contain sufficient information concerning the nature of this
individual's relationship with Propoint to make a comparison.
Therefore, we find no reason to disturb the Board's decisions.

     Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
