IN RE: the Claim of Dorothy A. YANK

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

IN RE: the Claim of Dorothy A. YANK, Respondent. National Evaluation Systems Inc., Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 26, 1998

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and WHITE, JJ. Finder & Cuomo L.L.P. (Patrick W. McGinley, of counsel), New York City, for appellant. McNamee, Lochner, Titus & Williams (David J. Wukitsch, of counsel), Albany, for Dorothy A. Yank, respondent. Dennis C. Vacco, Attorney General (Dawn A. Foshee, of counsel), New York City, for John E. Sweeney, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 20, 1996, which assessed National Evaluation Systems Inc. for additional unemployment insurance contributions based on remuneration paid to claimant and those similarly situated.

National Evaluation Systems Inc. (hereinafter NES) is a nationwide organization which administers tests to evaluate the skills and qualifications of candidates for various positions and licenses.   NES challenges a decision of the Unemployment Insurance Appeal Board which found that claimant, together with those similarly situated, were its employees rather than independent contractors.   Claimant submitted her resume in response to a newspaper advertisement for qualified teachers to read and score essay examinations of prospective teachers seeking certification in this State.   The record indicates that NES, inter alia, provided a training session in connection with the State's criteria for scoring the examinations, provided space at a hotel where the examinations were to be scored between the hours of 8:00 A.M. and 5:00 P.M., and paid the readers an hourly wage determined by NES.   Two readers evaluated each test.   In the event there was a discrepancy between the scores assigned, the readers' evaluations were subject to review.   Under these circumstances, we conclude that substantial evidence supports the decision of the Board finding the existence of an employer-employee relationship, notwithstanding the fact that the record could support a contrary conclusion (see, e.g., Matter of Faculty Tutoring Serv. [Sweeney], 244 A.D.2d 744, 664 N.Y.S.2d 674;  Matter of Educaid [Hartnett], 176 A.D.2d 420, 574 N.Y.S.2d 408, lv. denied 79 N.Y.2d 751, 579 N.Y.S.2d 651, 587 N.E.2d 289).

ORDERED that the decision is affirmed, without costs.


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