| Matter of Anwer (Exclusive Fragrance & Cosmetics,Inc.—Commissioner of Labor) |
| 2014 NY Slip Op 01364 [114 AD3d 1114] |
| February 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Behzad Anwer, Respondent. ExclusiveFragrance & Cosmetics, Inc., Appellant; Commissioner of Labor,Respondent. |
—[*1] Cynthia Feathers, Glens Falls, for Behzad Anwer, respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed August20, 2012, which ruled that claimant was eligible to receive unemployment insurancebenefits because she had sufficient weeks of covered employment to file a valid originalclaim.
From February 2011 until September 2011, claimant worked as a counter managerselling fragrances for Exclusive Fragrance & Cosmetics, Inc. (hereinafter EFC) at SaksFifth Avenue in New York City. After he stopped working for this company, he appliedfor unemployment insurance benefits. The Department of Labor concluded thatclaimant's base period employment with EFC was not covered employment under LaborLaw § 511 because there was insufficient evidence to establish the existence of anemployment relationship between EFC and claimant. Following a hearing, anAdministrative Law Judge ruled otherwise and found that claimant's work for EFCconstituted covered employment. The Unemployment Insurance Appeal Board upheldthis decision and, consequently, found that claimant was eligible to receive benefits. EFCnow appeals.
We affirm. Initially, the existence of an employment relationship is a factual issue forthe Board to decide and its decision will be not disturbed if supported by substantialevidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d734, 736 [1983]; Matter ofSmith [College Network Inc.—Commissioner of Labor], 109 AD3d1058, 1059 [2013]). The [*2]pertinent inquiry iswhether the employer exercised control over the results produced or the means used toachieve those results, with the latter being more important (see Matter of Ted Is BackCorp. [Roberts], 64 NY2d 725, 726 [1984]; Matter of Zelenka [Versace ProfumiUSA—Commissioner of Labor], 304 AD2d 927, 928 [2003]). In the case athand, evidence was presented that EFC set claimant's work hours and determined whenhe could have time off. In addition, it paid him on a weekly basis at a rate of $27 perhour, to which he agreed. Furthermore, claimant was in weekly contact with thevice-president of sales and marketing who discussed with him sales objectives andpromotional activities. In view of this, we conclude that substantial evidence supports theBoard's decision that EFC exercised sufficient control over claimant's activities toestablish the existence of an employment relationship notwithstanding evidencesupporting a contrary conclusion (see Matter of Askew [Nars Cosmetics, Inc.—Commissionerof Labor], 36 AD3d 1030, 1031 [2007]; Matter of Zelenka [VersaceProfumi USA—Commissioner of Labor], 304 AD3d at 928-929). Therefore,we find no reason to disturb the Board's decision.
Peters, P.J., Lahtinen, McCarthy and Rose, JJ., concur. Ordered that the decision isaffirmed, without costs.