In re the Claim of Mirsky

Appellate Division of the Supreme Court of New York

In re the Claim of Mirsky

38 A.D.3d 1029, 831 N.Y.S.2d 570

Appellate Division of the Supreme Court of the State of New York·Decided March 8, 2007·Published·Cited by 2 cases

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 15, 2005, which ruled that Twin-Tex Corporation was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Claimant worked as a salesperson for Twin-Tex Corporation, a wholesale distributor of textiles, for approximately one year. After leaving the company, he applied for unemployment insurance benefits. The Department of Labor issued an initial determination finding that Twin-Tex was liable for additional unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. Twin-Tex objected, asserting that claimant was an independent contractor. Following a hearing, an Administrative Law Judge determined that an employment relationship existed between Twin-Tex and claimant, and this decision was upheld by the Unemployment Insurance Appeal Board. Twin-Tex now appeals.

We affirm. The evidence adduced at the hearing reveals that Twin-Tex exercised a sufficient degree of control over important aspects of claimant’s work to establish an employment relationship (see e.g. Matter of Aubrey [NGT Lib., Inc.—Commissioner of Labor], 8 AD3d 803, 804 [2004]). Specifically, Twin-Tex provided claimant with fabric samples, office supplies, business cards, a desk and a telephone, paid the telephone bill, established the price range for the fabrics, prohibited claimant from selling competing fabrics and gave claimant a list of potential customer contacts to assist him in his sales. Although claimant was to be compensated from commissions based upon his sales, Twin-Tex provided him with a $700 per week advance toward such commissions during the first six months of his employment and [1030] changed this compensation arrangement only after claimant was unable to generate sufficient sales. Notwithstanding the existence of factors bolstering Twin-Tex’s assertion that claimant was an independent contractor, substantial evidence nonetheless supports the Board’s decision (see id. at 805; Matter of Kienle [Hunter Eng’g Co.—Commissioner of Labor], 261 AD2d 769, 770 [1999]).

Mercure, J.E, Crew III, Spain, Carpinello 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 September 15, 2005, which ruled that Twin-Tex Corporation was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Claimant worked as a salesperson for Twin-Tex Corporation, a wholesale distributor of textiles, for approximately one year. After leaving the company, he applied for unemployment insurance benefits. The Department of Labor issued an initial determination finding that Twin-Tex was liable for additional unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. Twin-Tex objected, asserting that claimant was an independent contractor. Following a hearing, an Administrative Law Judge determined that an employment relationship existed between Twin-Tex and claimant, and this decision was upheld by the Unemployment Insurance Appeal Board. Twin-Tex now appeals.

We affirm. The evidence adduced at the hearing reveals that Twin-Tex exercised a sufficient degree of control over important aspects of claimant’s work to establish an employment relationship (see e.g. Matter of Aubrey [NGT Lib., Inc.—Commissioner of Labor], 8 AD3d 803, 804 [2004]). Specifically, Twin-Tex provided claimant with fabric samples, office supplies, business cards, a desk and a telephone, paid the telephone bill, established the price range for the fabrics, prohibited claimant from selling competing fabrics and gave claimant a list of potential customer contacts to assist him in his sales. Although claimant was to be compensated from commissions based upon his sales, Twin-Tex provided him with a $700 per week advance toward such commissions during the first six months of his employment and [1030] changed this compensation arrangement only after claimant was unable to generate sufficient sales. Notwithstanding the existence of factors bolstering Twin-Tex’s assertion that claimant was an independent contractor, substantial evidence nonetheless supports the Board’s decision (see id. at 805; Matter of Kienle [Hunter Eng’g Co.—Commissioner of Labor], 261 AD2d 769, 770 [1999]).

Mercure, J.E, Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

In re the Claim of Mirsky, 38 A.D.3d 1029, 831 N.Y.S.2d 570 (N.Y. Ct. App. 2007).

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