| Matter of Rosen (Vidicom, Inc.\MCommissioner of Labor) |
| 2010 NY Slip Op 04293 [73 AD3d 1352] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Jason D. Rosen, Respondent.Vidicom, Inc., Appellant; Commissioner of Labor, Respondent. |
—[*1] James W. Cooper, Warrensburg, for Jason D. Rosen, respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Koton of counsel), forCommissioner of Labor, respondent.
Malone Jr., J. Appeals from two decisions of the Unemployment Insurance Appeal Board,filed November 7, 2008, which ruled that Vidicom, Inc. was liable for unemployment insurancecontributions on remuneration paid to claimant and others similarly situated.
Vidicom, Inc. is a video production company that provides video clips of various events forits clients to broadcast in different media outlets. Claimant was retained by Vidicom to videotapespecific events and to edit videotaped footage. The Unemployment Insurance Appeal Boardruled, in two separate decisions, that claimant and other similarly situated individuals wereemployees of Vidicom and assessed it additional unemployment insurance contributions.Vidicom now appeals.
As an initial matter, we note that the existence of an employment relationship is a factualissue for the Board to decide and its decision will not be disturbed if supported by substantialevidence (see Matter of Automotive Serv. Sys., Inc. [Commissioner of Labor], 56 [*2]AD3d 854, 855 [2008]; Matter of Kelly [Frank Gallo, Inc.—Commissioner of Labor], 28AD3d 1044, 1045 [2006], lv dismissed 7 NY3d 844 [2006]). Significantly, wherethe work of professionals is involved, the pertinent inquiry in determining the existence of anemployment relationship is whether the purported employer exercises "control over importantaspects of the services performed other than results or means" (Matter of ConcourseOphthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; see Matter of Brevis Music Inc.[Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712[2008]). Upon reviewing the record in this case, we cannot conclude that Vidicom exercised therequisite control necessary to establish the existence of an employment relationship.
Vidicom did not interview or screen claimant, but retained him after obtaining his namethrough a referral. In addition, it did not set a particular work schedule, impose specific timedeadlines or instruct claimant in the manner of performing the work. Rather, it merely advisedhim of when and where to report to an assignment and, when the assignment was complete,claimant gave Vidicom the videotape. Claimant was free to refuse an assignment and to work forothers, was not required to attend meetings or prepare reports, did not sign a written contract,receive fringe benefits, or exhibit logos or other identifying information associating him withVidicom. Claimant was compensated at the pay rate, which he negotiated, of $22 per hour andsubmitted invoices for his services after his assignments were complete. In addition to shootingvideotape, claimant periodically edited his own work and that of others, but Vidicom arranged tohave others edit his work if he was not available. Claimant had his own camera and computerequipment which he used to perform his duties. He worked at home as well as at Vidicom'soffice, but was not required to report there and did not have an assigned work station.
Viewing the evidence in totality, we cannot conclude that Vidicom retained control overimportant aspects of claimant's work as is required to demonstrate the existence of anemployment relationship (see e.g. Matter of International Student Exch. [Commissioner ofLabor], 302 AD2d 834 [2003]; Matter of Lauritano [Hartnett], 153 AD2d 997[1989]; compare Matter of Singh[Thomas A. Sirianni, Inc.—Commissioner of Labor], 43 AD3d 498 [2007]; Matter of JoonBug Prods., Inc.[Commissioner of Labor], 35 AD3d 997 [2006]). We disagree with the Board's findingsthat Vidicom's retention of responsibility to clients, purported ownership of claimant's workproduct, method of compensating claimant, reimbursement of limited travel expenses andoccasional provision of staff and/or equipment is sufficient to establish existence of anemployment relationship under the particular circumstances here. Accordingly, substantialevidence does not support the Board's decisions.
Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the decisions arereversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court's decision.