Am. Paraprofessional Sys. of NYC, Inc. v. Comm'r of Labor (In re Reyes)

210 A.D.3d 1217

178 N.Y.S.3d 244

In the MATTER OF the Claim of Andris Y. MOTA REYES, Respondent.

American Paraprofessional Systems of NYC, Inc., Appellant.

v.Commissioner of Labor, Respondent.

(Claim No. 1.)

In the Matter of the Claim of Maureen O'Mara, Respondent.

American Paraprofessional Systems of NYC, Inc., Appellant.

v.Commissioner of Labor, Respondent.

(Claim No. 2.)

(And Another Related Proceeding.)

532995, 532997, 532999

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 18, 2022

Decided and Entered: November 10, 2022

Nixon Peabody LLP, Jericho (Tara E. Daub of counsel), for appellant.

David E. Woodin, Catskill, for Andris Y. Mota Reyes and another, respondents.

Letitia James, Attorney General, New York City (Linda D. Joseph of counsel), for Workers’ Compensation Board, respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeals (1) from two decisions of the Unemployment Insurance Appeal Board, filed January 15, 2021, which ruled, among other things, that American Paraprofessional Systems of NYC, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant Andris Y. Mota Reyes and others similarly situated, (2) from two decisions of said Board, filed January 15, 2021, which ruled, among other things, that American Paraprofessional Systems of NYC, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant Maureen O'Mara and others similarly situated, and (3) from a decision of said Board, filed January 15, 2021, which assessed American Paraprofessional Systems of NYC, Inc. for additional unemployment insurance contributions.

American Paraprofessional Systems of NYC, Inc. (hereinafter APP) is engaged in the business of providing medical information and laboratory results to approximately 400 insurance companies to assist them in underwriting various types of life insurance. To provide these services, APP recruited and maintained a database of mobile paramedical examiners (hereinafter examiners),¹ who APP arranged to conduct examinations of life insurance applicants at each applicant's home or office. Following an audit of APP, the Department of Labor issued an initial determination finding that certain examiners that APP engaged were employees for purposes of unemployment insurance contributions and assessing APP with additional unemployment insurance contributions based upon remuneration paid to the subject examiners for the period January 1, 2011 through December 31, 2015. In a January 15, 2021 decision, the Unemployment Insurance Appeal Board sustained the Department's initial determination assessing APP $74,086.28 in additional contributions due for the period January 1, 2011 through December 31, 2015 based upon renumeration paid to the subject examiners during the audit period.

From 2017 to 2018, claimant Andris Y. Mota Reyes, a phlebotomist and certified EKG technician, and claimant Maureen O'Mara, a certified medical technician, provided services to APP as examiners. Following the provision of claimants’ services to APP, claimants each applied for unemployment insurance benefits. The Department of Labor subsequently issued initial determinations finding that claimants were employees of APP and that APP was liable for unemployment insurance contributions based upon remuneration paid to claimants and others similarly situated effective January 1, 2016. In four decisions of the Board, filed January 15, 2021, the Board sustained the Department's initial determinations with respect to claimants and others similarly situated. APP separately appeals from the five decisions of the Board filed on January 15, 2021, and these appeals were consolidated by this Court.

We affirm. "Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the Board, if supported by substantial evidence on the record as a whole, is beyond further judicial review" ( Matter of Eisenberg [CenseoHealth LLC–Commissioner of Labor], 205 A.D.3d 1185, 1185, 169 N.Y.S.3d 164 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Brown [Plannernet, Inc.-Commissioner of Labor], 195 A.D.3d 1329, 1330, 150 N.Y.S.3d 159 [3d Dept. 2021] ). "Substantial evidence is a minimal standard that demands only such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Matter of Blomstrom [Katz–Commissioner of Labor], 200 A.D.3d 1232, 1233, 160 N.Y.S.3d 392 [3d Dept. 2021] [internal quotation marks and citations omitted]; see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). When medical professionals are involved, the pertinent inquiry is whether the purported employer retained "control over important aspects of the services performed other than results or means" ( Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983] ; see Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 A.D.3d 1033, 1034, 155 N.Y.S.3d 466 [3d Dept. 2021] ; Matter of Lawlor [ExamOne World Wide Inc.-Commissioner of Labor], 130 A.D.3d 1345, 1346, 13 N.Y.S.3d 703 [3d Dept. 2015] ). "Further, an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" ( Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 A.D.3d at 1034, 155 N.Y.S.3d 466 [internal quotation marks and citations omitted]; see Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 A.D.3d 755, 757, 106 N.Y.S.3d 432 [3d Dept. 2019] ; ...