In re the Claim of Whyte

132 A.D.2d 758 | N.Y. App. Div. | 1987

Harvey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 7, 1986, which ruled the employer liable for contributions on remuneration paid to claimant.

Good Care Nursing Agency, Inc. (hereinafter the Agency) is an employment agency and nurses’ registry which provides housekeepers, nurses aides, licensed practical nurses and registered nurses to nursing homes and private individuals. After some of the individuals whom it placed filed for unemployment compensation benefits, the Commissioner of Labor assessed the Agency for contributions. The Commissioner found that the Agency was the employer of the individuals it placed. Subsequently, an appeal was taken to the Unemployment Insurance Appeal Board which initially overruled the Commissioner. However, the Commissioner asked for reconsideration in light of Matter of Gentile Nursing Servs. (Roberts) (65 NY2d 622). The Board reopened the case and, upon reconsideration, sustained the determination that the Agency was liable for contributions. The Agency appeals.

Resolution of whether an employer is liable for contributions does not turn upon any one factor alone and the Board’s determination of the issue must be upheld if supported by substantial evidence (see, e.g., Matter of Concourse Ophthalmology Assocs. [Roberts], 60 NY2d 734, 736; Matter of Eastern Suffolk School of Music [Roberts], 91 AD2d 1123, lv denied 60 NY2d 554). Here, the Agency advertises for and screens individuals which it places. Clients contact the Agency and the Agency selects the individual that it feels will meet the client’s needs. Replacements are made by the Agency. Workers are paid on a regular basis by the Agency. The Agency bills the clients and collects reimbursement from them. Given these factual determinations, all of which are supported by substantial evidence, this court is constrained by the authority of Matter of Gentile Nursing Servs. (Roberts) (supra) to affirm the Board’s decision.

Decision affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.