IN RE: the Claim of Minerva L. RIOS (2001)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 27, 1999, which assessed La Prairie Inc. with additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

La Prairie Inc., a cosmetics distributor whose products are sold at department stores, challenges a determination of the Unemployment Insurance Appeal Board ruling that claimant and other similarly situated freelance makeup artists are its employees rather than independent contractors.   The record reveals that claimant was hired by La Prairie to work at a department store makeup counter applying cosmetics to customers during a two-week sales promotion.   Although claimant applied for the position at the department store, claimant's wages were paid by La Prairie based upon the hours established by La Prairie and reflected in the time sheets that it required her to complete.   Claimant was expected to notify La Prairie if she was unable to work on a particular day and was prohibited from choosing her own replacement.   Under these circumstances, substantial evidence supports the Board's conclusion that La Prairie exercised sufficient control over claimant to establish an employer-employee relationship (see, Matter of Horne [Colonia Inc.-Hudacs], 188 A.D.2d 922, 591 N.Y.S.2d 880;  Matter of Lucas [Saint Laurent Parfums Corp.-Hartnett], 161 A.D.2d 993, 557 N.Y.S.2d 565).   Although the department store directly supervised claimant's daily activities, the Board could properly find that the department store was merely acting as La Prairie's agent (see, Matter of Lucas [Saint Laurent Parfums Corp.-Hartnett], supra, at 994, 557 N.Y.S.2d 565;  see also, Matter of Furno [Panasonic Co., Div. of Matsushita Elec. Corp. of Am.-Roberts], 102 A.D.2d 937, 938, 477 N.Y.S.2d 757, lv. denied 63 N.Y.2d 610, 484 N.Y.S.2d 1024, 473 N.E.2d 1190).   While the record contains evidence that would support a contrary result, we must uphold the Board's decision as supported by substantial evidence (see, Matter of Concourse Ophthalmology Assocs. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201).

ORDERED that the decision is affirmed, without costs.