518763 | N.Y. App. Div. | Dec 4, 2014

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: December 4, 2014 518763 ________________________________ In the Matter of the Claim of SAMUEL H. LUSTGARTEN, Respondent. NEW YORK PSYCHOTHERAPY AND COUNSELING CENTER, MEMORANDUM AND ORDER Appellant. COMMISSIONER OF LABOR, Respondent. ________________________________ Calendar Date: October 21, 2014 Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ. __________ FordHarrison LLP, New York City (Phillip K. Davidoff of counsel), for appellant. Michelle I. Rosien, Philmont, for Samuel H. Lustgarten, respondent. __________ Appeals from two decisions of the Unemployment Insurance Appeal Board, filed June 13, 2013, which ruled that New York Psychotherapy and Counseling Center was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. Claimant is a psychiatrist who provided services for clients of New York Psychotherapy and Counseling Center (hereinafter NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions -2- 518763 based on remuneration paid to claimant and others similarly situated. NYPCC objected on the ground that claimant was an independent contractor. Following a hearing, the Administrative Law Judge sustained the initial determination and the Unemployment Insurance Appeal Board affirmed. NYPCC now appeals. We affirm. "Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" (Matter of McCollum [Fire Is. Union Free Sch. Dist.–Commissioner of Labor], 118 AD3d 1203, 1203 [2014] [citation omitted]; see Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1133-1134 [2014]). Further, "[w]here, as here, medical professionals are involved, the pertinent inquiry is whether the purported employer exercised overall control over the work performed" (Matter of Scinta [ExamOne World Wide Inc.–Commissioner of Labor], 113 AD3d 959, 960 [2014]; accord Matter of Goddard [Summit Health, Inc.– Commissioner of Labor], 118 AD3d 1200, 1201 [2014], lv dismissed 24 NY3d 975 [2014]). Here, evidence was presented that NYPCC referred the patients to claimant and scheduled their initial appointments. NYPCC paid claimant an hourly wage for the time he treated the patients and NYPCC would bill the patients. Claimant was paid whether or not NYPCC was reimbursed by the patients or their health plans. Claimant worked in an office provided by NYPCC on NYPCC's premises – for which he only paid a nominal weekly fee of $9.87 – and would generate a treatment record that is accessed by NYPCC's doctors and staff. Based upon the foregoing, we conclude that substantial evidence supports the Board's determination that NYPCC retained sufficient overall control over the work performed by claimant and those similarly situated in order to establish an employee-employer relationship, notwithstanding other proof in the record that could support a contrary result (see Matter of Goddard [Summit Health, Inc.–Commissioner of Labor], 118 AD3d at 1201-1202; Matter of Scinta [ExamOne World Wide Inc.–Commissioner of Labor], 113 AD3d at 960-961). Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ., concur. -3- 518763 ORDERED that the decisions are affirmed, without costs. ENTER: Robert D. Mayberger Clerk of the Court