In re the Claim of McCarthy

Appellate Division of the Supreme Court of New York

In re the Claim of McCarthy

276 A.D.2d 988, 714 N.Y.S.2d 583, 2000 N.Y. App. Div. LEXIS 10839

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

DecidedOctober 26, 2000

StatusPublished

Cited by2 cases

This text of 276 A.D.2d 988 (In re the Claim of McCarthy) 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 McCarthy, 276 A.D.2d 988, 714 N.Y.S.2d 583, 2000 N.Y. App. Div. LEXIS 10839 (N.Y. Ct. App. 2000).

Pincite

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 25, 1999, which assessed Monsieur Touton Selection, Ltd. for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was hired as a sales representative for Monsieur Touton Selection, Ltd., a wine distributor, after responding to an advertisement seeking sales persons to sell its wines in established territories. Although claimant was paid on a commission basis, he received $2,000 a month during the summer slow season. In addition to paying the fee for the license required for claimant to be a liquor salesperson, Touton Selection also provided claimant with a beeper, business cards with Touton Selection’s telephone and fax numbers, a $600 a month expense stipend and use of Touton Selection’s telephone, fax and point of sale paraphernalia at no cost.

There were monthly sales meetings which claimant was expected, albeit not required, to attend at which new products were introduced and information was conveyed to assist in selling the products. Touton Selection set the price for the wines and arranged for delivery to the customer. Although claimant was not limited to a particular territory and was expected to bring in his own clients, he was nevertheless given a customer list. Upon a periodic performance review by the [989]*989sales manager, claimant would either be rewarded with more customer accounts or penalized by having accounts taken away.

Under the particular circumstances of this case, substantial evidence exists to support the decision of the Unemployment Insurance Appeal Board that there was sufficient direction and control over claimant’s work to establish his status as an employee of Touton Selection, notwithstanding that the record contains evidence to support a contrary conclusion (see, Matter of Roman [Berglund — Commissioner of Labor], 252 AD2d 707; Matter of Salo [Yvon Man Wines — Sweeney], 247 AD2d 808).

Mercure, J. P., Peters, Carpinello, Graffeo and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 25, 1999, which assessed Monsieur Touton Selection, Ltd. for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was hired as a sales representative for Monsieur Touton Selection, Ltd., a wine distributor, after responding to an advertisement seeking sales persons to sell its wines in established territories. Although claimant was paid on a commission basis, he received $2,000 a month during the summer slow season. In addition to paying the fee for the license required for claimant to be a liquor salesperson, Touton Selection also provided claimant with a beeper, business cards with Touton Selection’s telephone and fax numbers, a $600 a month expense stipend and use of Touton Selection’s telephone, fax and point of sale paraphernalia at no cost.

There were monthly sales meetings which claimant was expected, albeit not required, to attend at which new products were introduced and information was conveyed to assist in selling the products. Touton Selection set the price for the wines and arranged for delivery to the customer. Although claimant was not limited to a particular territory and was expected to bring in his own clients, he was nevertheless given a customer list. Upon a periodic performance review by the [989]*989sales manager, claimant would either be rewarded with more customer accounts or penalized by having accounts taken away.

Under the particular circumstances of this case, substantial evidence exists to support the decision of the Unemployment Insurance Appeal Board that there was sufficient direction and control over claimant’s work to establish his status as an employee of Touton Selection, notwithstanding that the record contains evidence to support a contrary conclusion (see, Matter of Roman [Berglund — Commissioner of Labor], 252 AD2d 707; Matter of Salo [Yvon Man Wines — Sweeney], 247 AD2d 808).

Mercure, J. P., Peters, Carpinello, Graffeo and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

276 A.D.2d 988, 714 N.Y.S.2d 583, 2000 N.Y. App. Div. LEXIS 10839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-mccarthy-nyappdiv-2000.

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