In re the Claim of Foster

Appellate Division of the Supreme Court of New York

In re the Claim of Foster

293 A.D.2d 848, 740 N.Y.S.2d 520, 2002 N.Y. App. Div. LEXIS 3591

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

DecidedApril 11, 2002

StatusPublished

Cited by2 cases

This text of 293 A.D.2d 848 (In re the Claim of Foster) 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 Foster, 293 A.D.2d 848, 740 N.Y.S.2d 520, 2002 N.Y. App. Div. LEXIS 3591 (N.Y. Ct. App. 2002).

Pincite

Opinion

Carpinello, J.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 18, 2000, which ruled that Peter A. Tacy, Jr. was liable for additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated employees.

Citing evidence in the record which would support the conclusion that claimant and other mortgage consultants who work for Peter A. Tacy, Jr., a licensed mortgage broker, .are independent contractors, Tacy contends that the Unemployment Insurance Appeal Board erred in concluding that they are employees. However, the record also contains evidence of Tacy’s control over claimant and others similarly situated. For example, there [849]*849is evidence that claimant consulted Tacy with regard to the appropriate fee to charge a customer and submitted all loan documents to Tacy for review. Claimant obtained customer leads through a rotating system used to route customer calls to the office number listed in Tacy’s advertisements. Claimant was required to follow up on calls assigned to him and the office manager periodically checked on whether claimant was doing so. Claimant was paid by commission but was allowed a weekly draw against commissions in an amount fixed by Tacy.

Inasmuch as there is substantial evidence to support the Board’s conclusion that Tacy exercised sufficient control over claimant and others similarly situated to demonstrate an employer-employee relationship, the Board’s decision must be affirmed, despite the existence of record evidence which could have supported a contrary conclusion (see, Matter of Concourse Ophthalmology Assoc., 60 NY2d 734; Matter of Barnhart [Manhattan Mtge. Co.—Hudacs], 189 AD2d 1050).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the decisions are affirmed, without costs.

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Carpinello, J.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 18, 2000, which ruled that Peter A. Tacy, Jr. was liable for additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated employees.

Citing evidence in the record which would support the conclusion that claimant and other mortgage consultants who work for Peter A. Tacy, Jr., a licensed mortgage broker, .are independent contractors, Tacy contends that the Unemployment Insurance Appeal Board erred in concluding that they are employees. However, the record also contains evidence of Tacy’s control over claimant and others similarly situated. For example, there [849]*849is evidence that claimant consulted Tacy with regard to the appropriate fee to charge a customer and submitted all loan documents to Tacy for review. Claimant obtained customer leads through a rotating system used to route customer calls to the office number listed in Tacy’s advertisements. Claimant was required to follow up on calls assigned to him and the office manager periodically checked on whether claimant was doing so. Claimant was paid by commission but was allowed a weekly draw against commissions in an amount fixed by Tacy.

Inasmuch as there is substantial evidence to support the Board’s conclusion that Tacy exercised sufficient control over claimant and others similarly situated to demonstrate an employer-employee relationship, the Board’s decision must be affirmed, despite the existence of record evidence which could have supported a contrary conclusion (see, Matter of Concourse Ophthalmology Assoc., 60 NY2d 734; Matter of Barnhart [Manhattan Mtge. Co.—Hudacs], 189 AD2d 1050).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the decisions are affirmed, without costs.

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Bluebook (online)

293 A.D.2d 848, 740 N.Y.S.2d 520, 2002 N.Y. App. Div. LEXIS 3591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-foster-nyappdiv-2002.

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