Opinion
January 2, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 25, 1972, reversing a decision of a referee and sustaining a determination of the industrial commissioner finding the claimant herein to be an employee of Cornell Design Co., Inc. Claimant, an electrical engineer, was found by the board to be an employee of the appellant, an employment agency. As we have recently reaffirmed, the existence of an employment relationship is a factual matter properly within the discretion of the board and its decision thereon is conclusive if supported by substantial evidence ( Matter of Singer [ Levine], 46 A.D.2d 927). Although no single factor may be determinative of an employment issue and the degree of actual control exercised by appellant over claimant may have been minimal in the situation here presented (cf. Matter of Smith [ Catherwood], 26 A.D.2d 459), there was substantial support for the conclusion reached by the board in this case. By the terms of the "consulting agreement" executed by the parties, appellant assumed the direct obligation to pay claimant for his services to its clients at a specific rate, but reserved to itself the right to limit the hours to be worked by him on any project. Furthermore, evidence was presented in the form of a letter from appellant to all "employees", including claimant, stating that Blue Cross and Blue Shield insurance coverage was available to them. Perhaps even more significantly, this agreement also precluded claimant from accepting employment with appellant's client for a period of 60 days after termination of his services without its prior written consent. At best then, appellant presented only conflicting considerations as to claimant's employment status which the board was free to weigh and resolve against it ( Matter of Singer [ Levine], supra). Decision affirmed, without costs. Herlihy, P.J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.