In re the Claim of Cobrin

Appellate Division of the Supreme Court of New York

In re the Claim of Cobrin

91 A.D.3d 992, 936 N.Y.2d 361

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 5, 2012

StatusPublished

Cited by11 cases

This text of 91 A.D.3d 992 (In re the Claim of Cobrin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Cobrin, 91 A.D.3d 992, 936 N.Y.2d 361 (N.Y. Ct. App. 2012).

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Opinion

Rose, J.

[993]*993We affirm. “The existence of an employer-employee relationship is a factual determination for the Board that will not be disturbed if supported by substantial evidence” (Matter of Omnipop, Inc. [Commissioner of Labor], 68 AD3d 1575, 1576 [2009] [citations omitted]). Further, “[w]here professionals are involved, the relevant inquiry is ‘whether the purported employer retains overall control of important aspects of the services performed’ ” (Matter of Wells [Madison Consulting, Inc.— Commissioner of Labor], 77 AD3d 993, 995 [2010], quoting Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]).

Here, claimant was referred to TCN, which informed him that there was a position available at Kodak. TCN screened claimant’s qualifications and then set up an interview for him with Kodak. Once hired, claimant was required to submit his weekly time sheets to TCN, and TCN would pay claimant an hourly rate agreed upon between TCN and Kodak. Kodak would thereafter reimburse TCN for claimant’s pay and include a markup that represented TCN’s fee for providing claimant’s services. Although Kodak directed claimant’s daily work activities, set his schedule and provided training, we have held that “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 Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; accord Matter of Wells [Madison Consulting, Inc. — Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 [2007]). We conclude that the Board’s determination that claimant was an employee of TCN is supported by substantial evidence, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of Wells [Madison Consulting, Inc. — Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Siriani, Inc. — Commissioner of Labor], 43 AD3d at 499).

Peters, J.E, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the decisions are affirmed, without costs.

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Rose, J.

[993]*993We affirm. “The existence of an employer-employee relationship is a factual determination for the Board that will not be disturbed if supported by substantial evidence” (Matter of Omnipop, Inc. [Commissioner of Labor], 68 AD3d 1575, 1576 [2009] [citations omitted]). Further, “[w]here professionals are involved, the relevant inquiry is ‘whether the purported employer retains overall control of important aspects of the services performed’ ” (Matter of Wells [Madison Consulting, Inc.— Commissioner of Labor], 77 AD3d 993, 995 [2010], quoting Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]).

Here, claimant was referred to TCN, which informed him that there was a position available at Kodak. TCN screened claimant’s qualifications and then set up an interview for him with Kodak. Once hired, claimant was required to submit his weekly time sheets to TCN, and TCN would pay claimant an hourly rate agreed upon between TCN and Kodak. Kodak would thereafter reimburse TCN for claimant’s pay and include a markup that represented TCN’s fee for providing claimant’s services. Although Kodak directed claimant’s daily work activities, set his schedule and provided training, we have held that “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 Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; accord Matter of Wells [Madison Consulting, Inc. — Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 [2007]). We conclude that the Board’s determination that claimant was an employee of TCN is supported by substantial evidence, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of Wells [Madison Consulting, Inc. — Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Siriani, Inc. — Commissioner of Labor], 43 AD3d at 499).

Peters, J.E, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the decisions are affirmed, without costs.

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91 A.D.3d 992, 936 N.Y.2d 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-cobrin-nyappdiv-2012.

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