Matter of Greystoke Industries LLC (Commr. of Labor) , 36 N.Y.S.3d 760 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 25, 2016 520070
________________________________
In the Matter of GREYSTOKE
INDUSTRIES LLC, Doing
Business as PARADISE
FOUND, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: August 18, 2016
Before: Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.
__________
Bond, Schoeneck & King, PLLC, Syracuse (Subhash Viswanathan
of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for respondent.
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Egan Jr., J.
Appeals (1) from a decision of the Unemployment Insurance
Appeal Board, filed January 15, 2014, which assessed Greystoke
Industries LLC for additional unemployment insurance
contributions, and (2) from a decision of said Board, filed
August 21, 2015, which, upon reopening, among other things,
adhered to its prior decision.
Greystoke Industries LLC operates Paradise Found, a club
featuring exotic dancers. An investigation by the Department of
Labor determined that the dancers were employees of the club and
additional unemployment insurance contributions were assessed.
Following a hearing, an Administrative Law Judge sustained the
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Department's determination, and the Unemployment Insurance Appeal
Board affirmed upon review. After the Board reopened its
decision, it again affirmed the Administrative Law Judges's
determination and also found that the dancers were employees
pursuant to Labor Law § 511 (1) (b) (1-a). Greystoke now appeals
both decisions.
We affirm. "Whether there exists an employment
relationship is a factual issue for resolution by the Board and
its decision will not be disturbed when supported by substantial
evidence" (Matter of Duno [Anthony Stone Investigative & Sec.
Servs., Inc.–Commissioner of Labor], 120 AD3d 1512, 1512 [2014]
[citations omitted]; see Matter of Eray Inc. [Commissioner of
Labor], 136 AD3d 1129, 1130 [2016]). An employment relationship
"exists when the evidence shows that the employer exercises
control over the results produced or the means used to achieve
the results, with the latter more important" (Matter of DeVaul
[Guardi–Commissioner of Labor], 138 AD3d 1371, 1371 [2016]
[internal quotation marks and citations omitted]; see Matter of
Exotic Is. Enters. [Commissioner of Labor], 135 AD3d 1087, 1087
[2016]).
The record reflects that the club would evaluate
prospective dancers and instruct those who were inexperienced to
observe a more experienced dancer. If the club determined that a
dancer was "unappealing," the dancer would not be permitted to
continue to perform. Additionally, the dancers were required to
present proof of legal age and citizenship or their services
would not be engaged. The club charged patrons an admission fee
and set the prices that the dancers would charge patrons for
private one-on-one dances, with the club retaining a percentage
thereof, and patrons would pay the club's bartender for the
private dances. While the dancers could set their own schedules,
the club would compile a nightly list of the dancers scheduled to
perform and post it on its website. Finally, the club provided
the stage, private dance rooms, lighting and sound equipment,
while the dancers supplied their own costumes and music. Despite
evidence in the record that could support a contrary result, we
find that there is substantial evidence supporting the Board's
determination that the club exercised sufficient control over the
dancers to establish an employment relationship (see Matter of
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Exotic Is. Enters. [Commissioner of Labor], 135 AD3d at 1088;
Matter of Enjoy the Show Mgt. [Commissioner of Labor], 287 AD2d
822, 822-823 [2001]). In light of this finding, we need not
address the Board's additional determination that the dancers
also were employees pursuant to Labor Law § 511 (1) (b) (1-a)
(see Matter of Exotic Is. Enters. [Commissioner of Labor], 135
AD3d at 1089).
Garry, J.P., Devine, Mulvey and Aarons, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court