In re the Educaid, Inc.

176 A.D.2d 420, 574 N.Y.S.2d 408, 1991 N.Y. App. Div. LEXIS 12114

Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 31, 1990, which assessed Educaid, Inc. for additional unemployment insurance contributions.

Substantial evidence in the record supports the determination that Educaid, Inc., an educational service which provides test preparation, academic guidance and private in-home tutoring for students, exercised sufficient direction and control over its tutors to establish their status as employees (see, Matter of Gentile Nursing Servs. [Roberts], 65 NY2d 622; Matter of Bertsch [Intertek Servs. Corp. — Roberts], 159 AD2d 898; Matter of Schwartz [Creative Tutoring — Roberts], 91 AD2d 778). This is true even though there is evidence in the record which may have supported a contrary conclusion (see, Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932). For example, Educaid selected the tutors through advertising, conducted interviews of prospective tutors at which Educaid checked into their educational background, and the contract agreements the tutors signed restricted their activities with Educaid clients. In addition, upon the submission of monthly time sheets Educaid paid the tutors directly, even if it was not paid by the client. Finally, the fact that the tutors’ contracts stated that they were independent contractors is not determinative (see, Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 221-222).

Casey, J. P., Weiss, Mikoll, Yesawich Jr. and Levine, JJ., concur. Ordered that the decision is affirmed, without costs.