State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 520759 

________________________________

In the Matter of the Claim of

STEVEN S. COHEN,

Respondent.

CLASSIC RIVERDALE, INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: January 13, 2016

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

__________

Mintz & Gold, LLP, New York City (Jeffrey D. Pollack of

counsel), for appellant.

Christopher Hammond, Cooperstown, for Steven S. Cohen,

respondent.

Eric T. Schneiderman, Attorney General, New York City

(Linda D. Joseph of counsel), for Commissioner of Labor,

respondent.

__________

Garry, J.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed July 9, 2014, which ruled, among other

things, that Classic Riverdale Inc. is liable for unemployment

insurance contributions on remuneration paid to claimant and

others similarly situated.
-2- 520759 

Classic Riverdale Inc. operates a senior living facility. 

Claimant is a fitness instructor who provided exercise classes to

the facility's residents from 2002 to 2010. After Classic

Riverdale ceased using claimant's services, he applied for

unemployment insurance benefits and the Department of Labor

granted his application upon finding that he was an employee of

Classic Riverdale and not an independent contractor. A hearing

was held that resulted in an Administrative Law Judge overruling

the Department's determination and finding that claimant was an

independent contractor. The Unemployment Insurance Appeal Board

reversed that decision and found that an employment relationship

existed between claimant and Classic Riverdale entitling him to

benefits and that Classic Riverdale was liable for unemployment

insurance contributions on remuneration paid to claimant and

others similarly situated. Classic Riverdale appeals. 

We reverse. "An employer-employee relationship exists when

the evidence shows that the employer exercises control over the

results produced or the means used to achieve the results" with

the second factor deemed to be more important (Matter of Empire

State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15

NY3d 433, 437 [2010]; see Matter of Encore Music Lessons LLC

[Commissioner of Labor], 128 AD3d 1313, 1314 [2015]). The

Board's determination will be upheld where it is supported by

substantial evidence, a standard that requires "'proof within the

whole record of such quality and quantity as to generate

conviction in and persuade a fair and detached fact finder that,

from that proof as a premise, a conclusion or ultimate fact may

be extracted reasonably – probatively and logically'" (Matter of

Rodriguez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58

AD3d 929, 930 [2009], quoting 300 Gramatan Ave. Assoc. v State

Div. of Human Rights, 45 NY2d 176, 181 [1976]). An employment

relationship does not exist where "the evidence establishes that

the alleged employer exercises only incidental control over the

results produced – without further evidence of control over the

means employed to achieve the results" (Matter of Chan [Confero

Consulting Assoc., Inc.–Commissioner of Labor], 128 AD3d 1124,

1125 [2015] [internal quotation marks, brackets and citations

omitted]).

After learning from a client that Classic Riverdale was
-3- 520759 

seeking an exercise instructor, claimant contacted the facility's

executive director and offered his services. Claimant and the

director negotiated a flat fee for each class and set a schedule

for the classes. Classic Riverdale did not provide any training

or require claimant to wear a uniform. He was not required to

punch in or out on the employee time clock, did not use the

employee facilities, such as the locker room or cafeteria, and

was not invited to attend employee meetings. Claimant alone

determined the content of the classes and method of instruction

(compare Matter of Yoga Vida NYC, Inc. [Commissioner of Labor],

119 AD3d 1314, 1314-1315 [2014], lv granted 24 NY3d 909 [2014]). 

There was no limitation placed on the amount of time that

claimant could miss from work and his attendance was not

monitored. He was never given a performance evaluation and was

not subject to any form of discipline (see Matter of Leazard

[TestQuest, Inc.–Commissioner of Labor, 74 AD3d 1414, 1415

[2010]). Claimant also maintained his own liability insurance

(compare Matter of Fitness Plus [Commissioner of Labor], 293 AD2d

909, 910 [2002]). Notably, in addition to providing classes at

the facility, claimant also provided services to other clients

and solicited the facility's residents for private, one-on-one

classes without any objection from Classic Riverdale (compare

Matter of Raynor [Synchronicity, Inc–Commissioner of Labor],

135 AD3d 1261 [2016]; see Matter of Leazard [TestQuest,

Inc.–Commissioner of Labor], 74 AD3d at 1415.). 

The fact that claimant taught the classes on the facility's

premises does not indicate an employment relationship, given that

claimant was retained for that very purpose (see Matter of Hertz

Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]). 

Moreover, the occasional observation of the classes by a facility

director, in the absence of evidence of any resulting impact on

the means or results of claimant's work, fails to demonstrate the

exercise of control (see Matter of Werner [CBA Indus.–Hudacs],

210 AD2d 526, 528 [1994], lv denied 86 NY2d 702 [1995]). While

some of the factors cited by the Board may demonstrate that

Classic Riverdale exercised incidental control over claimant (see

Matter of Best [Lusignan–Commissioner of Labor], 95 AD3d 1536,

1538 [2012]), we find that the record as a whole lacks

substantial evidence to support the determination of an employeremployee relationship (see Matter of Jhaveri [Stacy Blackman
-4- 520759 

Consulting, Inc.–Commissioner of Labor], 127 AD3d 1391, 1392

[2015]; Matter of Leazard [TestQuest, Inc.–Commissioner of Labor,

74 AD3d at 1415; Matter of Omnipop, Inc. [Commissioner of Labor],

68 AD3d 1575, 1577 [2009]).

Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.

ORDERED that the decisions are reversed, without costs, and

matter remitted to the Unemployment Insurance Appeal Board for

further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court