In re Concourse Opthalmology Associates, P. C.

89 A.D.2d 1047, 456 N.Y.S.2d 112, 1982 N.Y. App. Div. LEXIS 18323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1982
• Status: Published

Opinions

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 6, 1981, which assessed the employer for contributions due for the audit period from April 1,1976 through December 31,1978. Appellant is a professional corporation organized in 1971 for the purpose of practicing opthalmic surgery. It employs some 10 or 11 people, including nurses, receptionists and secretaries, who are concededly employees. Appellant also utilizes the services of certain opthalmologists, optometrists and a medical photographer who were found by the board to be employees rather than independent contractors. The board concluded that appellant was liable for contributions on the remuneration paid to this latter group during the audit period from April 1, 1976 through December 31, 1978 and this appeal ensued. The opthalmologists in question performed services on appellant’s premises pursuant to an agreed upon schedule. The standard fee established for services rendered was set by appellant although the opthalmologists had discretion to lower the fee. During the course of treatment the opthalmologists used appellant’s examining rooms and medical equipment. The billing of patients, collection of fees and completion of insurance and Medicare forms were handled by appellant. The opthalmologists received from appellant 50% of the fee collected from a patient for the services they rendered. The scheduling of appointments was done by a receptionist employed by appellant. Appellant’s relationship with the optometrists in question is essentially similar to its relationship with the opthalmologists. While appellant provides the optometrists with examining rooms and large medical equipment, smaller medical equipment is provided by the optometrists themselves. In addition, optometrists receive not only 50% of the fees collected by appellant but also a per diem fee. The scheduling of patients, billing and collection of fees are handled by appellant in the same manner as for the opthalmologists. The medical photographer performs services for appellant usually one day a week on a scheduled day at appellant’s premises. Her work involves taking photographs of patients’ retinas with a camera and film provided by appellant. She develops the photographs at her home. Payment is calculated on an hourly basis plus a certain amount per patient. This payment is received by the medical photographer from appellant. It is well established that in determining whether an employer-employee relationship exists, no single factor alone is conclusive and each case must be decided on its peculiar facts {Matter of Wells [Utica Observer-Dispatch & Utica Daily Press—Roberts], 87 AD2d 960; Matter of Publications Data [Ross], 78 AD2d 747). While there is some evidence to support a contrary conclusion, we are of the view that upon examination of the entire record there is substantial evidence to support the board’s determination that the individuals in question were employees of appellant and, therefore, the decision should be affirmed (see Matter of Villa Maria Inst, of Music [Ross], 54 NY2d 691; Matter of Foundation for Open Eye [Ross], 86 AD2d 931). Decision affirmed, without costs. Sweeney, J. P., Main and Yesawich, Jr., JJ., concur.

Mikoll and Levine, JJ., dissent and vote to reverse in the following memorandum by Levine, J.