In re the Claim of Eisner

Appellate Division of the Supreme Court of New York

In re the Claim of Eisner

252 A.D.2d 847, 675 N.Y.S.2d 700, 1998 N.Y. App. Div. LEXIS 8602

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

DecidedJuly 23, 1998

StatusPublished

Cited by5 cases

This text of 252 A.D.2d 847 (In re the Claim of Eisner) 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 Eisner, 252 A.D.2d 847, 675 N.Y.S.2d 700, 1998 N.Y. App. Div. LEXIS 8602 (N.Y. Ct. App. 1998).

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Opinions

—Mercure, J. P.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed February 14, 1997, which ruled that Hertz Corporation was liable for additional unemployment insurance contributions on remuneration paid to claimant.

Claimant was engaged by the Special Travel Agency Representative Service Network (hereinafter STARS), a marketing department operated by Hertz Corporation, to distribute travel brochures to travel agencies under the terms of a 1988 written agreement. In 1994, claimant filed a claim for unemployment insurance benefits. Ultimately, the Unemployment Insurance Appeal Board upheld the Commissioner of Labor’s initial determination that Hertz exercised sufficient control over claimant’s services to constitute an employer-employee relationship. Hertz appeals, primarily contending that the Board’s determination is not supported by substantial evidence.

We affirm. Evidence adduced at the hearing before an Administrative Law Judge supported findings that the employer provided training sessions and materials for STARS representatives, maintained ultimate authority over the representatives’ agency list and the frequency of their visits, [848]*848provided call report forms and required representatives to complete the forms and turn them in within 10 days of an agency visit, furnished travel brochures for distribution by the representatives, required the representatives to comply with its dress code, and prohibited representatives from working for its competitors. In addition, the record shows that the employer’s regional sales manager was required to and regularly did accompany STARS representatives on sales calls for the purpose of evaluating their performance. In our view, the foregoing evidence provides ample factual support for the Board’s conclusion that claimant and similarly situated STARS representatives were employees rather than independent contractors based upon the employer’s exercise of control over the means used to achieve the results produced (see, Matter of Rivera [State Line Delivery Serv. — Roberts], 69 NY2d 679, 682, cert denied 481 US 1049; Matter of Braunstein [Dinaire Corp.], 250 AD2d 899, 899-900).

Neither the recitation of the parties’ agreement that claimant was an independent contractor nor the employer’s issuance of a 1099 tax form mandate a contrary result. Rather, the existence of this and other evidence (even the greater weight of the evidence) supporting an opposing determination merely created a credibility issue for the Board’s determination in the exercise of its exclusive fact-finding authority (see, Matter of Concourse Ophthalmology Assocs. [Roberts], 60 NY2d 734, 736; Matter of Braunstein [Dinaire Corp.], supra, at 900; Matter of Francis [West Sanitation Servs. — Sweeney], 246 AD2d 751, 752). As a final matter, we conclude that the Administrative Law Judge’s refusal to receive evidence that claimant filed tax returns as an independent contractor constituted, at worst, harmless error (cf., Khan v Galvin, 206 AD2d 776; Dizak v State of New York, 124 AD2d 329).

Spain and Carpinello, JJ., concur.

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—Mercure, J. P.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed February 14, 1997, which ruled that Hertz Corporation was liable for additional unemployment insurance contributions on remuneration paid to claimant.

Claimant was engaged by the Special Travel Agency Representative Service Network (hereinafter STARS), a marketing department operated by Hertz Corporation, to distribute travel brochures to travel agencies under the terms of a 1988 written agreement. In 1994, claimant filed a claim for unemployment insurance benefits. Ultimately, the Unemployment Insurance Appeal Board upheld the Commissioner of Labor’s initial determination that Hertz exercised sufficient control over claimant’s services to constitute an employer-employee relationship. Hertz appeals, primarily contending that the Board’s determination is not supported by substantial evidence.

We affirm. Evidence adduced at the hearing before an Administrative Law Judge supported findings that the employer provided training sessions and materials for STARS representatives, maintained ultimate authority over the representatives’ agency list and the frequency of their visits, [848]*848provided call report forms and required representatives to complete the forms and turn them in within 10 days of an agency visit, furnished travel brochures for distribution by the representatives, required the representatives to comply with its dress code, and prohibited representatives from working for its competitors. In addition, the record shows that the employer’s regional sales manager was required to and regularly did accompany STARS representatives on sales calls for the purpose of evaluating their performance. In our view, the foregoing evidence provides ample factual support for the Board’s conclusion that claimant and similarly situated STARS representatives were employees rather than independent contractors based upon the employer’s exercise of control over the means used to achieve the results produced (see, Matter of Rivera [State Line Delivery Serv. — Roberts], 69 NY2d 679, 682, cert denied 481 US 1049; Matter of Braunstein [Dinaire Corp.], 250 AD2d 899, 899-900).

Neither the recitation of the parties’ agreement that claimant was an independent contractor nor the employer’s issuance of a 1099 tax form mandate a contrary result. Rather, the existence of this and other evidence (even the greater weight of the evidence) supporting an opposing determination merely created a credibility issue for the Board’s determination in the exercise of its exclusive fact-finding authority (see, Matter of Concourse Ophthalmology Assocs. [Roberts], 60 NY2d 734, 736; Matter of Braunstein [Dinaire Corp.], supra, at 900; Matter of Francis [West Sanitation Servs. — Sweeney], 246 AD2d 751, 752). As a final matter, we conclude that the Administrative Law Judge’s refusal to receive evidence that claimant filed tax returns as an independent contractor constituted, at worst, harmless error (cf., Khan v Galvin, 206 AD2d 776; Dizak v State of New York, 124 AD2d 329).

Spain and Carpinello, JJ., concur.

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252 A.D.2d 847, 675 N.Y.S.2d 700, 1998 N.Y. App. Div. LEXIS 8602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-eisner-nyappdiv-1998.

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