State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 20, 2016 522583 

________________________________

In the Matter of CYNTHIA 

DEVORE,

Petitioner,

v MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State

Comptroller, et al.,

Respondents.

________________________________

Calendar Date: September 12, 2016

Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

__________

Featherstonhaugh, Wiley & Clyne, LLP, Albany (James D.

Featherstonhaugh of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs of counsel), for respondents.

__________

Devine, J.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review a determination of respondent Comptroller partially

denying petitioner's application for retirement service credits.

Petitioner is a medical doctor and has provided services as

a school physician and medical director for numerous entities

since the 1980s. She is also a member of respondent New York

State and Local Retirement System. A dispute arose as to whether

she was entitled to service credit for certain periods in which

she was reported as a part-time employee by Monroe Number 1

BOCES, as well as the Brighton, Greece, Rush-Henrietta,
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Spencerport and Williamsville Central School Districts

(hereinafter collectively referred to as the school districts). 

A hearing was conducted, after which the Retirement System

conceded that petitioner was an employee of Monroe Number 1 BOCES

and entitled to service credit for that work. The Hearing

Officer found that petitioner had not sustained her burden of

showing that she was an employee of the school districts,

however, and declined to award her service credit for that work. 

Respondent Comptroller adopted the Hearing Officer's findings and

conclusions. Petitioner commenced this CPLR article 78

proceeding to challenge the Comptroller's determination insofar

as it found her to be an independent contractor for the school

districts for the relevant periods.1

In "calculating retirement benefits, service credit is

available only to employees, not independent contractors" (Matter

of Doner v Comptroller of State of N.Y., 262 AD2d 750, 751

[1999]), and "[a]n 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"

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

[Commissioner of Labor], 15 NY3d 433, 437 [2010]). Inasmuch as

petitioner provided professional medical services that are not

1 The Retirement System found that petitioner was

ineligible for service credit for periods in which she was

categorized as an employee by the school districts. Petitioner

limited her arguments at the hearing to those periods, which are

as follows: July 1, 2002 to November 2008 for Williamsville

Central School District; July 1, 2003 to the present for Greece

Central School District; February 1, 2006 to the present for

Rush-Henrietta Central School District; July 1, 2005 to June 30,

2008 for Spencerport Central School District; and July 2005 to

the present for Brighton Central School District. Petitioner

argued for the first time in the instant CPLR article 78

proceeding that she is entitled to service credit for longer

periods of time but, given her failure to raise those issues at

the administrative level, they are not properly before us and we

decline to address them (see Matter of Petak v Tax Appeals Trib.

of State of N.Y., 217 AD2d 807, 809 [1995]).
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amenable to direct control, however, "the absence of [that]

control is not dispositive of the existence of an employeremployee relationship" (Matter of Mowry v DiNapoli, 111 AD3d

1117, 1118 [2013]; see Matter of Empire State Towing & Recovery

Assn., Inc. [Commissioner of Labor], 15 NY3d at 437-438; Matter

of Salamanca Nursing Home [Roberts], 68 NY2d 901, 903 [1986]). 

An employer-employee relationship will exist under such

circumstances if the putative employer exercised overall "control

over important aspects of the services performed other than

results or means" (Matter of Concourse Ophthalmology Assoc.

[Roberts], 60 NY2d 734, 736 [1983]; accord Matter of Empire State

Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at

437). Whether sufficient overall control existed is a factual

issue for the Comptroller, and his resolution of it will be

upheld if supported by substantial evidence in the record

(see Matter of Brothman v DiNapoli, 114 AD3d 1072, 1073 [2014];

Matter of Mowry v DiNapoli, 111 AD3d at 1118). 

Petitioner presented her own testimony, as well as that of

officials from most of the school districts, all of whom

specified how the school districts exercised significant control

over aspects of petitioner's work. The only potential exception

is that, while the school districts had all categorized

petitioner as an employee by 2006, petitioner had previously

executed agreements with the school districts that categorized

her as an independent contractor. Respondents correctly point

out that "[t]he actual transactions between the contracting

parties — and not the labels assigned to their relationships

pursuant to a contract or otherwise — determine whether an

employer-employee relationship exists" (Matter of Handley v New

York State Teachers' Retirement Sys., 74 AD3d 1384, 1385-1386

[2010]; see Matter of Mowry v DiNapoli, 111 AD3d at 1120). 

Those actual transactions between petitioner and the school

districts during the periods at issue were largely consistent and

involved her reporting to specific district officials who did not

tell her how to do her work, but did dictate what tasks she

needed to perform and when she needed to be available to perform

them. Her supervisors monitored her work and gave her regular

performance evaluations. She had access to various fringe

benefits at all but one of the school districts, such as paid
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leave and health insurance.2 She was also provided with office

space and other resources, all of which she utilized since she

did not have a private medical practice and the attendant

administrative resources. 

The foregoing evidence, documenting the significant overall

control exercised by the school districts over aspects of

petitioner's work, faced little challenge from the Retirement

System. The Retirement System, in fact, rested at the hearing

without presenting any witnesses. Thus, upon our review of the

record, we cannot say that substantial evidence supports the

Comptroller's determination that petitioner worked as an

independent contractor for the school districts during the

periods that she was classified by them as an employee

(see Matter of Brothman v DiNapoli, 114 AD3d at 1073; Matter of

Mowry v DiNapoli, 111 AD3d at 1118-1119).

Petitioner's remaining contention that the determination

was barred by laches due to delay on the part of the Comptroller,

to the extent that it is not academic in light of the foregoing,

has been examined and found to be meritless (see Matter of Mowry

v DiNapoli, 111 AD3d at 1120). 

Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.

2 The hearing testimony suggested that petitioner did not

have access to fringe benefits from the Rush-Henrietta Central

School District.
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ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as determined that petitioner was

not an employee of Williamsville Central School District from

July 1, 2002 to November 2008, Greece Central School District

from July 1, 2003 to the present, Rush-Henrietta Central School

District from February 1, 2006 to the present, Spencerport

Central School District from July 1, 2005 to June 30, 2008, and

Brighton Central School District from July 2005 to the present;

petition granted to that extent and matter remitted to respondent

Comptroller for further proceedings not inconsistent with this

Court's decision; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court