In re Body Electric Corp. of America

Appellate Division of the Supreme Court of New York

In re Body Electric Corp. of America

89 A.D.3d 1331, 933 N.Y.2d 441

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 23, 2011

StatusPublished

Cited by1 cases

This text of 89 A.D.3d 1331 (In re Body Electric Corp. of America) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Body Electric Corp. of America, 89 A.D.3d 1331, 933 N.Y.2d 441 (N.Y. Ct. App. 2011).

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Opinion

Malone Jr., J.

Substantial evidence supports the Unemployment Insurance Appeal Board’s decision to assess Body Electric Corporation of America for additional unemployment insurance contributions, as well as a fraud penalty, for the audit period 2003 to 2006 based upon a finding that Leona Fox, a shipper for the company, was an employee rather than independent contractor. The record establishes that a prior Board decision, dated September 3, 2004, found, among other things, that Fox was an employee for the purpose of unemployment insurance contributions during the audit period 2000 to 2002. Even crediting Body Electric’s claim that certain aspects of Fox’s duties subsequently changed as of April 2005, the record indicates that Body Electric continued to direct and control her activities. Specifically, Body Electric provided Fox with clients to whom its videos should be shipped, paid mailing expenses, handled customer complaints and determined Fox’s rate of pay. Despite requests and a subpoena issued by the Department of Labor, Body Electric submitted limited records and information that were insufficient to change the previously determined employer-employee relationship. In view of the foregoing, the Board’s determination will not be disturbed, notwithstanding evidence in the record that could support a contrary conclusion (see Matter of England [Levine], 38 NY2d 829, 830 [1976]; Matter of Executive Educ. Inst. [Commissioner of Labor], 270 AD2d 601, 602 [2000]).

Finally, the circumstances herein support the Board’s finding that a penalty was warranted (see Labor Law § 570 [4]), despite Body Electric’s proffered excuses for the failure to cooperate.

The remaining contentions raised by Body Electric have been reviewed and found to be without merit.

Mercure, J.E, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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Malone Jr., J.

Substantial evidence supports the Unemployment Insurance Appeal Board’s decision to assess Body Electric Corporation of America for additional unemployment insurance contributions, as well as a fraud penalty, for the audit period 2003 to 2006 based upon a finding that Leona Fox, a shipper for the company, was an employee rather than independent contractor. The record establishes that a prior Board decision, dated September 3, 2004, found, among other things, that Fox was an employee for the purpose of unemployment insurance contributions during the audit period 2000 to 2002. Even crediting Body Electric’s claim that certain aspects of Fox’s duties subsequently changed as of April 2005, the record indicates that Body Electric continued to direct and control her activities. Specifically, Body Electric provided Fox with clients to whom its videos should be shipped, paid mailing expenses, handled customer complaints and determined Fox’s rate of pay. Despite requests and a subpoena issued by the Department of Labor, Body Electric submitted limited records and information that were insufficient to change the previously determined employer-employee relationship. In view of the foregoing, the Board’s determination will not be disturbed, notwithstanding evidence in the record that could support a contrary conclusion (see Matter of England [Levine], 38 NY2d 829, 830 [1976]; Matter of Executive Educ. Inst. [Commissioner of Labor], 270 AD2d 601, 602 [2000]).

Finally, the circumstances herein support the Board’s finding that a penalty was warranted (see Labor Law § 570 [4]), despite Body Electric’s proffered excuses for the failure to cooperate.

The remaining contentions raised by Body Electric have been reviewed and found to be without merit.

Mercure, J.E, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

89 A.D.3d 1331, 933 N.Y.2d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-body-electric-corp-of-america-nyappdiv-2011.

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