Philips Bryant Park v. Comm'r of Lab. (In re Mena)

205 N.Y.S.3d 570

224 A.D.3d 1069

In the MATTER OF the Claim of Giovanni MENA, Respondent.

Philips Bryant Park LLC, Appellant.

v.Commissioner of Labor, Respondent.

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

Calendar Date: January 16, 2024

Decided and Entered: February 15, 2024

Clifton Budd & DeMaria, LLP, New York City (Stefanie R. Toren of counsel), for appellant.

David E. Woodin, Catskill, for Giovanni Mena, respondent.

Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed August 1, 2022, which ruled that Philips Bryant Park LLC is liable for additional unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.

Philips Bryant Park LLC operates a hotel that also contains a bar and nightclub. On weekend nights, Philips contracts the use of the bar and nightclub out to party promoters. Philips entered into an agreement with claimant in April 2013 to act as a doorman/bottle host for the parties. After claimant stopped providing these services, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of Philips, and that Philips was liable for unemployment insurance contributions based upon remuneration paid to claimant and others similarly situated. Philips objected to the Department’s determination but failed to appear at two subsequently scheduled hearings and, in two decisions filed on October 9, 2014, an Administrative Law judge (hereinafter ALJ) found Philips in default and sustained the Department’s determination. Philips’ application to reopen the case was denied by the Unemployment Insurance Appeal Board but this Court reversed and remitted the matter, citing the Board’s failure to support its denial with any findings of fact or reasons in support of the denial (164 A.D.3d 1510, 1511–1512, 80 N.Y.S.3d 656 [3d Dept. 2018]).

Upon remittal, the Board ultimately granted Philips’ application to reopen. A hearing was held on November 6, 2020 at which Philips’ managing director testified but claimant failed to appear. Following the hearing, the ALJ overruled the Department’s finding of an employer-employee relationship. Claimant appealed to the Board and the Board determined that claimant’s appeal should be considered an application to reopen the case and the Board directed that a hearing be held to address the application and provide both parties an opportunity to be heard. Following the hearing, at which claimant and Philips’ managing director both testified, the ALJ granted claimant’s application to reopen the case and then sustained the Department’s initial determination. In two decisions, the Board upheld the ALJ’s decision, and Philips appeals.¹

[1–5] 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 even though there is evidence in the record that would have supported a contrary conclusion" (Matter of Perez [Columbus Mgt. Sys., Inc.-Сотmissioner of Labor], 211 A.D.3d 1261, 1261, 181 N.Y.S.3d 680 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Gisser [iTutor.com, Inc.-Commissioner of Labor], 211 A.D.3d 1258, 1258, 181 N.Y.S.3d 670 [3d Dept. 2022], lv dismissed 39 N.Y.3d 1128, 188 N.Y.S.3d 9, 209 N.E.3d 599 [2023]). "Substantial evidence is a minimal standard requiring less than a preponderance of the evidence. As such, if the evidence reasonably supports the Board’s choice, we may not interpose our judgment to reach a contrary conclusion" (Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d 131, 136–137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] [internal quotation marks, brackets and citations omitted]; accord Matter of McIntyre [Northeast Logistics, Inc.-Commissioner of Labor], 213 A.D.3d 1003, 1004, 183 N.Y.S.3d 598 [3d Dept. 2023]). «Traditionally, the Board considers a number of factors in determining whether a worker is an employee or an independent contractor, examining all aspects of the arrangement. But the touchstone of the analysis is whether the employer exercised control over the results produced by the worker or the means used to achieve the results. The doctrine is necessarily flexible Because no enumerated list of factors can apply to every situation faced by a worker, and the relevant indicia of control will necessarily vary depending on the nature of the work" (Matter of Vega [Postmatas Inc.-Commissioner of Labor], 35 N.Y.3d at 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets and citations omitted]; accord Matter of Phillips [All Sys. Messenger & Trucking Corp.-Commissioner of Labor], 217 A.D.3d 1014, 1015, 190 N.Y.S.3d 488 [3d Dept. 2023]). "Additionally, the evaluation of evidence and the inferences to be drawn therefrom are within the exclusive province of the Board, and the Board is the final arbiter of witness credibility" (Matter of Hosang [Crystal Cargo Inc.-Commissioner of Labor], 202 A.D.3d 1241, 1242, 163 N.Y.S.3d 647 [3d Dept. 2022] [internal quotation marks and citations omitted]).

[6] Philips’ managing director testified that the party promoters generally provided the crowd, a disc jockey and bottle hosts. According to the managing director, Philips decided to retain claimant, who had previously worked with Philips’...