In re the Claim of Klingsberg

Appellate Division of the Supreme Court of New York

In re the Claim of Klingsberg

178 A.D.2d 711, 577 N.Y.S.2d 171, 1991 N.Y. App. Div. LEXIS 16040

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

DecidedDecember 5, 1991

StatusPublished

This text of 178 A.D.2d 711 (In re the Claim of Klingsberg) 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 Klingsberg, 178 A.D.2d 711, 577 N.Y.S.2d 171, 1991 N.Y. App. Div. LEXIS 16040 (N.Y. Ct. App. 1991).

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Opinion

— Appeals from two decisions of the Unemployment Insurance Appeal Board, filed November 19, 1990, which, inter alia, ruled that claimant was entitled to receive unemployment insurance benefits.

There is substantial evidence in the record to support the conclusion by the Unemployment Insurance Appeal Board that Drago Medical Sales Associates, Inc., a medical supply [712]*712manufacturers’ representative, exercised sufficient supervision, direction and control over claimant, a sales representative, to establish his status as an employee (see, Matter of Gentile Nursing Servs. [Roberts], 65 NY2d 622; Matter of Bertsch [Intertek Servs. Corp. — Hartnett], 159 AD2d 898). Drago assigned claimant to a certain territory, provided him with business cards indicating claimant’s position as its sales representative, samples of literature and client lists. Claimant was paid directly by Drago and Drago’s president occasionally accompanied claimant on sales calls to advise and assist claimant in making sales. Complaints about claimant’s performance were made directly to Drago and while claimant had no set hours of work, he was expected to maintain regular telephone contact with Drago. Furthermore, as the Board noted, any understanding between claimant and Drago to the effect that claimant and other sales representatives were independent contractors was not determinative insofar as that was a question of fact for the Board to resolve (see, Matter of Di Martino [Buffalo Courier Express Co. — Ross], 59 NY2d 638).

Casey, J. P., Weiss, Levine, Mercure and Crew III, JJ., concur. Ordered that the decisions are affirmed, without costs.

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— Appeals from two decisions of the Unemployment Insurance Appeal Board, filed November 19, 1990, which, inter alia, ruled that claimant was entitled to receive unemployment insurance benefits.

There is substantial evidence in the record to support the conclusion by the Unemployment Insurance Appeal Board that Drago Medical Sales Associates, Inc., a medical supply [712]*712manufacturers’ representative, exercised sufficient supervision, direction and control over claimant, a sales representative, to establish his status as an employee (see, Matter of Gentile Nursing Servs. [Roberts], 65 NY2d 622; Matter of Bertsch [Intertek Servs. Corp. — Hartnett], 159 AD2d 898). Drago assigned claimant to a certain territory, provided him with business cards indicating claimant’s position as its sales representative, samples of literature and client lists. Claimant was paid directly by Drago and Drago’s president occasionally accompanied claimant on sales calls to advise and assist claimant in making sales. Complaints about claimant’s performance were made directly to Drago and while claimant had no set hours of work, he was expected to maintain regular telephone contact with Drago. Furthermore, as the Board noted, any understanding between claimant and Drago to the effect that claimant and other sales representatives were independent contractors was not determinative insofar as that was a question of fact for the Board to resolve (see, Matter of Di Martino [Buffalo Courier Express Co. — Ross], 59 NY2d 638).

Casey, J. P., Weiss, Levine, Mercure and Crew III, JJ., concur. Ordered that the decisions are affirmed, without costs.

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178 A.D.2d 711, 577 N.Y.S.2d 171, 1991 N.Y. App. Div. LEXIS 16040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-klingsberg-nyappdiv-1991.

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