In re the Claim of Cohen

112 A.D.2d 687, 492 N.Y.S.2d 191, 1985 N.Y. App. Div. LEXIS 55821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1985
• Status: Published

Opinions

Levine, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 25, 1984, which ruled that claimant was entitled to receive benefits.

There was evidence in the record that claimant’s securities sales, as actually transacted, were entirely channeled through the employer, including billing, payment and delivery, and were not final until the employer approved and accepted them. Sales representatives such as claimant were also barred from engaging in any independent advertising without the employer’s prior approval. Claimant was provided with desk space at the employer’s offices, access to telephones there, and business cards identifying him as an account executive of the employer. Moreover, the Unemployment Insurance Appeal Board could infer that sales representatives such as claimant were expected to generate a certain volume of business since, in fact, claimant was given critiques and suggestions by an officer manager of the employer on how to improve sales and was eventually let go because of poor production. These factors, taken as a whole, were sufficient indicia of control to support the Board’s finding that claimant was an employee rather than an independent contractor (see, Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734; Matter of Weltman [Dempsey-Tegeler & Co. — Catherwood], 25 AD2d 914, mod 26 AD2d 734). Therefore, the decision ruling that claimant was entitled to receive benefits should be affirmed.

Decision affirmed, without costs. Kane, J. P., Yesawich, Jr., and Levine, JJ., concur; Mikoll and Harvey, JJ., dissent and vote to reverse in the following memorandum by Harvey, J.