State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 19, 2015 520433 

________________________________

In the Matter of the Claim of

DEBORAH FATONE,

Respondent.

ADDISON STREET SPA, LLC, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: October 15, 2015

Before: Garry, J.P., Egan Jr., Rose and Clark, JJ.

__________

Kase & Druker, Garden City (James O. Druker of counsel),

for appellant.

Murphy, Burns, Barber & Murphy, LLP, Albany (Catherine A.

Barber of counsel), for Deborah Fatone, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Steven Koton of counsel), for Commissioner of Labor, respondent.

__________

Garry, J.P.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed August 11, 2014, which ruled, among other

things, that Addison Street Spa, LLC is liable for unemployment

insurance contributions on remuneration paid to claimant and

others similarly situated.

Addison Street Spa, LLC is a day spa offering various

massage therapies and facials. Claimant was a massage therapist
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at Addison from 2007 until 2013. The Unemployment Insurance

Appeal Board ruled that claimant and others similarly situated

were employees of Addison, and Addison now appeals.

We affirm. "Whether an employer-employee relationship

exists 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 Jennings [American

Delivery Solution, Inc.–Commissioner of Labor], 125 AD3d 1152,

1152 [2015] [internal quotation marks and citations omitted]; see

Matter of LaValley [West Firm, PLLC–Commissioner of Labor], 120

AD3d 1498, 1499 [2014]). "[S]uch a relationship will be found to

exist where the employer exercises control over the results

produced or the means used to achieve those results, with the

latter being more important" (Matter of Columbia Artists Mgt. LLC

[Commissioner of Labor], 109 AD3d 1055, 1056 [2013]; accord

Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d

1042, 1043 [2013]). Here, there is evidence in the record that

Addison set the prices for the massages and the percentage of

which claimant was paid, scheduled its clients pursuant to

claimant's weekly schedule, collected the fees from the clients

and fielded any complaints. Addison required claimant to sign an

agreement that she would not solicit, divert or take away any of

Addison's clients during the term of the agreement and for one

year after claimant stopped providing massages at the spa. 

Addison provided the room, equipment and supplies and required

claimant to arrive 30 minutes before the scheduled massage time

and to maintain professional attire. In our view, substantial

evidence supports the Board's decision that Addison exercised

sufficient control over claimant to establish an employment

relationship, despite other evidence in the record that could

support a contrary result (see Matter of Human Performance, Inc.

[Commissioner of Labor], 28 AD3d 971, 972 [2006]; Matter of Sun

[Anuthep Benja-Athon M.D., P.C.–Commissioner of Labor], 27 AD3d

862, 863 [2006]).

Egan Jr., Rose and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court