| Matter of Richins (Quick Change Artistry,LLC—Commissioner of Labor) |
| 2013 NY Slip Op 04862 [107 AD3d 1342] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Gregory S. Richins,Respondent. Quick Change Artistry, LLC, Appellant; Commissioner of Labor,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel),for Commissioner of Labor, respondent.
Stein, J. Appeals from two decisions of the Unemployment Insurance Appeal Board,filed November 30, 2011, which ruled, among other things, that Quick Change Artistry,LLC was liable for unemployment insurance contributions based on remuneration paid toclaimant and others similarly situated.
Quick Change Artistry, LLC is in the business of booking backstage supportstaff—i.e., dressers, pressers, pinners and tailors—for designers andproducers of fashion shows. Claimant was engaged by Quick Change to render servicesas a pinner for one week in November 2008 and one day in December 2008. Whenclaimant filed a claim for unemployment insurance benefits with regard to separateemployment, his work in conjunction with Quick Change came to light. The Departmentof Labor subsequently issued an initial determination finding claimant eligible to receivebenefits and Quick Change liable for contributions based upon remuneration paid toclaimant and others similarly situated. After an objection by Quick Change, anAdministrative Law Judge ruled that claimant was an employee for the purpose ofunemployment [*2]insurance. Upon review, theUnemployment Insurance Appeal Board affirmed these decisions.[FN1]Quick Change now appeals.
We reverse. The determination as to whether an employment relationship exists"turns upon the control exercised by the employer over the results produced or the meansused to obtain those results, with control over the latter being the more important factorto consider" (Matter of Holleran[Jez Enters., Inc.—Commissioner of Labor], 98 AD3d 757, 758 [2012];see Matter of Empire StateTowing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437[2010]; Matter of Best[Lusignan—Commissioner of Labor], 95 AD3d 1536, 1537 [2012]; Matter of Interlandi [CremosaFoods Co., LLC—Commissioner of Labor], 70 AD3d 1150, 1150 [2010];Matter of Omnipop, Inc.[Commissioner of Labor], 68 AD3d 1575, 1576 [2009]).[FN2]While such a determination will be upheld if supported by substantial evidence (see Matter of Leazard [TestQuest,Inc.—Commissioner of Labor], 74 AD3d 1414, 1414 [2010]), "incidentalcontrol over the results produced, alone, will not constitute substantial evidence that anemployment relationship exists" (Matter of Best [Lusignan—Commissioner ofLabor], 95 AD3d at 1537).
Here, Quick Change did not screen claimant but, rather, retained his services basedupon his reputation in the industry. Claimant was free to accept or reject an assignmentfrom Quick Change, was not prohibited from working for others, did not sign a writtencontract and received no fringe benefits. Although Quick Change arranged for claimantto begin working at a specific time and place designated by the client, the work schedulethereafter was dictated solely by the client, and a representative from Quick Change wasnever present at the job site. Quick Change did not train claimant or instruct him in anyaspect of how to perform his work, and claimant was not required to report to QuickChange in any manner. Claimant furnished his own supplies and received noreimbursement from Quick Change. Once the work was completed, claimant submittedinvoices to Quick Change for payment. Quick Change set the rate of pay; however, itwas based upon the established market for such services. Moreover, while the owner ofQuick Change hypothesized that she would likely pay claimant in the event that the clientdid not pay, this was based upon a sense of personal obligation rather than a contractualcommitment. Notwithstanding the Board's recitation of certain factors which wouldindicate that Quick Change exercised some level of incidental control over ancillarymatters related to claimant's services, the record as a whole lacks substantial evidence ofthe requisite level of control over claimant's work so as to establish the existence of anemployer-employee relationship (see Matter of Empire State Towing & RecoveryAssn., Inc. [Commissioner of Labor], 15 NY3d at 438; Matter of Holleran [JezEnters., Inc.—Commissioner of Labor], 98 [*3]AD3d at 758-759; Matter of Rodriguez [2020 VideoVoice Data, Ltd.—Commissioner of Labor], 58 AD3d 929, 930 [2009]).Accordingly, the Board's decisions must be reversed.
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the decisions are reversed,without costs, and matter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court's decision.
Footnote 1: For reasonsunexplained, the Department of Labor generated two case numbers for the instant matter,which resulted in a combined hearing and the rendering of identical decisions in eachcase by both the Administrative Law Judge and the Unemployment Insurance AppealBoard.
Footnote 2: We agree with QuickChange that claimant was not a "professional" to whom the alternate "overall control"test would apply (Matter of Empire State Towing & Recovery Assn., Inc.[Commissioner of Labor], 15 NY3d at 437-438). In any event, the application of thattest to the facts here would not lead to a different result.