IN RE: the Claim of Ellis A. LOUGHRAN

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

IN RE: the Claim of Ellis A. LOUGHRAN, Respondent. Foley Nursing Agency Inc., Appellant. Commissioner of Labor, Respondent.

Decided: February 25, 1999

Before:  MIKOLL, J.P., YESAWICH JR., SPAIN, CARPINELLO and GRAFFEO, JJ. Holm & O'Hara LLP (William P. Holm of counsel), New York City, for appellant. Cynthia Feathers, Saratoga Springs, for Ellis A. Loughran, respondent. Eliot Spitzer, Attorney-General (Linda D. Joseph of counsel), New York City, for Commissioner of Labor, respondent.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 9, 1997 and October 10, 1997, which, inter alia, assessed Foley Nursing Agency Inc. for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was employed as a home health aide for the elderly by Foley Nursing Agency Inc., a licensed employment agency and nurses registry.   Finding that claimant and others similarly situated were Foley's employees rather than independent contractors, the Commissioner of Labor awarded claimant unemployment insurance benefits and assessed Foley with additional unemployment insurance contributions.   Foley appeals.

 We affirm.   Whether an employment relationship exists is a factual question for resolution by the Board and will not be disturbed if supported by substantial evidence (see e.g., Matter of Seneca Nation of Indians [Sweeney], 247 A.D.2d 732, 733, 669 N.Y.S.2d 85).   Here, Foley's president testified that home health aides seeking placement through the agency are required to complete an application indicating that they are certified as either a nurse's aide or a personal care attendant.   The home health aides are then required to undergo a screening process during which they must provide two references and submit to a physical examination.   When Foley learns that a client is in need of home health services, it matches the client's requirements with the qualifications of an available aide who is then notified of the work opportunity.   Aides who accept work must carry their own malpractice insurance, adhere to Foley's written rules and regulations and notify Foley if he or she is unable to work on a particular day so that Foley can send a replacement.   Foley's rules and regulations prohibit an aide from leaving a client until relief arrives and require notification of when a case ends.   Aides are precluded from giving out their telephone numbers to clients or from working more than 50 hours per week.   The latter requirement is to ensure the “safety of clients”.   Although the aides receive payment directly from clients, Foley is entitled to a certain percentage of the payment as a commission.

Under these circumstances, we find that, even though there was evidence to support a contrary conclusion, there is substantial evidence to support the Board's decision that Foley exercised sufficient overall control over important aspects of the services rendered by claimant and others similarly situated (see, Matter of Skeete [Cooper Sq. Nurses Registry-Commissioner of Labor], 253 A.D.2d 926, 678 N.Y.S.2d 153, 154, lv. denied 93 N.Y.2d 802, 687 N.Y.S.2d 626, 710 N.E.2d 273;  Matter of Boone [Shore Rd. Community Serv.-Sweeney], 245 A.D.2d 617, 664 N.Y.S.2d 679;  cf., Matter of Mulholland [Motherly Love Care-Commissioner of Labor], 258 A.D.2d 855, 686 N.Y.S.2d 511 [decided herewith] ).

ORDERED that the decisions are affirmed, without costs.



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