State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519592 

________________________________

In the Matter of the Claim of 

NIRAV S. JHAVERI,

Respondent.

STACY BLACKMAN CONSULTING, MEMORANDUM AND ORDER

INC.,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: February 24, 2015

Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

__________

Sanjeeve K. DeSoyza, Albany, for appellant.

Bruce E. Knoll, Albany, for Nirav S. Jhaveri, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Marjorie S. Leff of counsel), for Commissioner of Labor,

respondent. 

__________

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed November 5, 2013, which ruled, among other

things, that Stacy Blackman Consulting, Inc. was liable for

unemployment insurance contributions based on remuneration paid

to claimant and others similarly situated.

Stacy Blackman Consulting, Inc. (hereinafter SBC) is

engaged in the business of assisting students who are applying to

business school. Claimant performed that work, and the

Unemployment Insurance Appeal Board ruled that he and others
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similarly situated were SBC's employees. SBC now appeals.

"Whether an employee-employer 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, 1152-1153

[2015] [citation omitted], quoting Matter of McCollum [Fire Is.

Union Free School Dist.–Commissioner of Labor], 118 AD3d 1203,

1203 [2014]). While "[a]n employer-employee relationship

[generally] exists when the evidence shows that the employer

exercises control over the results produced or the means used to

achieve the results," substantial control over other important

aspects of the work is sufficient in cases involving

professionals (Matter of Empire State Towing & Recovery Assn.,

Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; see Matter

of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736-737

[1983]). Inasmuch as substantial evidence does not support the

Board's finding that an employer-employee relationship existed

under either standard, we reverse. 

SBC did not screen claimant, but retained his services

because he had been introduced to its president through a mutual

acquaintance as someone who had gone to business school and was

familiar with the application process. Claimant thereafter

executed an agreement that designated him an independent

contractor. He further negotiated his own fee, was not

reimbursed for expenses, and was not provided with any benefits. 

SBC did not train, supervise or otherwise direct claimant in the

performance of his work, although it did require him to turn over

whatever application materials he had helped prepare. SBC also

did not perform any substantive review of claimant's work, did

not require him to attend any meetings or consult with it, and

allowed him to decline assignments and take time off as he saw

fit. Moreover, while the parties' agreement required claimant to

keep sample application materials provided by SBC confidential

and imposed restrictions on his ability to work for competitors

in the field, the president of SBC testified without

contradiction that she had never enforced those provisions and

had permitted claimant to work elsewhere. Under these

circumstances, we are unable to conclude that SBC exercised
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sufficient control over claimant to establish an employeremployee relationship (see Matter of Jennings [American Delivery

Solution, Inc.–Commissioner of Labor], 125 AD3d at 1153; Matter

of Richins [Quick Change Artistry, LLC–Commissioner of Labor],

107 AD3d 1342, 1344 [2013]; compare Matter of Ivy League Tutoring

Connection, Inc. [Commissioner of Labor], 119 AD3d 1260, 1261

[2014]).

The remaining arguments of SBC have been rendered academic

in light of the foregoing.

Lahtinen, J.P., Garry, Lynch 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