In re the Claim of Bourk

Appellate Division of the Supreme Court of New York

In re the Claim of Bourk

165 A.D.2d 969, 561 N.Y.S.2d 858, 1990 N.Y. App. Div. LEXIS 11460

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

DecidedSeptember 27, 1990

StatusPublished

This text of 165 A.D.2d 969 (In re the Claim of Bourk) 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 the Claim of Bourk, 165 A.D.2d 969, 561 N.Y.S.2d 858, 1990 N.Y. App. Div. LEXIS 11460 (N.Y. Ct. App. 1990).

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Opinion

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed February 6, 1989, which assessed Homecraft Industries, Inc. for additional unemployment insurance contributions, and (2) from a decision of said Board, filed May 5, 1989, which, upon reconsideration, adhered to its prior decision.

The powers reserved by Homecraft Industries, Inc. were sufficient to establish the direction and control necessary for its salespersons to be considered employees (see, Matter of Cohen [Blinder, Robinson & Co.—Roberts], 67 NY2d 683). While there were factors pointing to independent contractor status, other factors, such as reporting daily to the office, a training program and commissions determined by the company only after its approval of a sale, pointed to an employment relationship (see, Matter of Rich Plan [Levine], 47 AD2d 573). The conclusions reached by the Unemployment Insurance Appeal Board were within its power as fact finder and were supported by substantial evidence (see, Matter of Di Maria v Ross, 52 NY2d 771).

Decisions affirmed, without costs.

Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.

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Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed February 6, 1989, which assessed Homecraft Industries, Inc. for additional unemployment insurance contributions, and (2) from a decision of said Board, filed May 5, 1989, which, upon reconsideration, adhered to its prior decision.

The powers reserved by Homecraft Industries, Inc. were sufficient to establish the direction and control necessary for its salespersons to be considered employees (see, Matter of Cohen [Blinder, Robinson & Co.—Roberts], 67 NY2d 683). While there were factors pointing to independent contractor status, other factors, such as reporting daily to the office, a training program and commissions determined by the company only after its approval of a sale, pointed to an employment relationship (see, Matter of Rich Plan [Levine], 47 AD2d 573). The conclusions reached by the Unemployment Insurance Appeal Board were within its power as fact finder and were supported by substantial evidence (see, Matter of Di Maria v Ross, 52 NY2d 771).

Decisions affirmed, without costs.

Mahoney, P. J., Kane, Casey, Levine and Harvey, JJ., concur.

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Bluebook (online)

165 A.D.2d 969, 561 N.Y.S.2d 858, 1990 N.Y. App. Div. LEXIS 11460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-bourk-nyappdiv-1990.

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