Opinion
518889
11-06-2014
In the Matter of Karen L. SPIELBERGER, Appellant. Commissioner of Labor, Respondent. (And Another Related Claim.)
Karen L. Spielberger, New York City, appellant pro se.
Karen L. Spielberger, New York City, appellant pro se.
Before: STEIN, J.P., GARRY, EGAN JR., LYNCH and CLARK, JJ.
Opinion Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 18, 2013, which, among other things, ruled that Optimal Spaces, Inc. was not liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Claimant is a licensed real estate broker who performed services for Optimal Spaces, Inc., a commercial real estate firm specializing in leasehold rentals. After claimant stopped working for Optimal, she applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board ruled that claimant was not entitled to receive benefits because Optimal was not her employer and that, consequently, Optimal was not liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Claimant now appeals.
It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983] ; Matter of Cohen [Just Energy Marketing Corp.-Commissioner of Labor], 117 A.D.3d 1112, 1112, 985 N.Y.S.2d 190 [2014], lv. dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1136 [2014] ). The pertinent inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being more important (see Matter of Empire State Towing & Recovery Assn. [Commissioner of Labor], 15 N.Y.3d 433, 437, 912 N.Y.S.2d 551, 938 N.E.2d 984 [2010] ; Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725, 726, 485 N.Y.S.2d 742, 475 N.E.2d 113 [1984] ; Matter of 12 Cornelia St. [Ross], 56 N.Y.2d 895, 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117 [1982] ).
Evidence was presented that claimant was paid a commission of 60% of the brokerage fee collected by Optimal, which she negotiated with Optimal's senior managing director. Moreover, claimant did not have an established work schedule or work location, independently maintained her own real estate license, carried her own business cards and was permitted to and did receive commissions on referrals from other parties. Notably, she was not required to report to anyone at Optimal nor was she required to accept leads that Optimal sent to her. In view of the foregoing, while we are unable to conclude, as a matter of law that no employment relationship exists (see Labor Law § 511 [19 ] ), substantial evidence supports the Board's finding that Optimal did not exercise sufficient control over claimant's work to be deemed her employer (see Matter of 12 Cornelia Street, Inc. [Ross], 56 N.Y.2d at 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117 ; Matter of John Lack Assocs. [Commissioner of Labor], 112 A.D.3d 1042, 1043–1044, 977 N.Y.S.2d 760 [2013] ; Matter of Holleran [Jez Enters., Inc.-Commissioner of Labor], 98 A.D.3d 757, 758–759, 950 N.Y.S.2d 205 [2012] ; see also Matter of William B. Trilling Assocs.
[Roberts], 94 A.D.2d 919, 920, 463 N.Y.S.2d 618 [1983] ; Matter of McCabe & Willig Realty, Inc. [Ross], 80 A.D.2d 935, 936, 437 N.Y.S.2d 770 [1981] ; compare Matter of Paldiel [Ardor Realty Corp.-Commissioner of Labor], 288 A.D.2d 522, 522, 731 N.Y.S.2d 915 [2001] ; Matter of Atac [Fashion Realty Group–Commissioner of Labor], 265 A.D.2d 777, 777, 697 N.Y.S.2d 398 [1997] ). To the extent that claimant's testimony contradicted that of her employer, this was a credibility question for the Board to resolve (see Matter of Paldiel [Ardor Realty Corp.-Commissioner of Labor], 288 A.D.2d at 523, 731 N.Y.S.2d 915 ; Matter of Nanwani [Greer Real Estate–Hudacs], 193 A.D.2d 1023, 1024, 598 N.Y.S.2d 582 [1994] ). Accordingly, we find no reason to disturb its decisions finding that claimant was not entitled to receive benefits and that Optimal was not liable for additional unemployment contributions.
ORDERED that the decisions are affirmed, without costs.