In re the Claim of Montalto

Appellate Division of the Supreme Court of New York

In re the Claim of Montalto

263 A.D.2d 736, 693 N.Y.S.2d 308, 1999 N.Y. App. Div. LEXIS 8013

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

DecidedJuly 15, 1999

StatusPublished

Cited by3 cases

This text of 263 A.D.2d 736 (In re the Claim of Montalto) 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 Montalto, 263 A.D.2d 736, 693 N.Y.S.2d 308, 1999 N.Y. App. Div. LEXIS 8013 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Appeals from two decisions of the Unemployment Insurance Appeal Board, filed March 17, 1998, which, upon reopening and reconsideration, rescinded its prior decisions filed January 23, 1998 and ruled Early Intervention Center of Suffolk, Inc. liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.

Substantial evidence supports the decisions of the Unemployment Insurance Appeal Board finding that Early Intervention Center of Suffolk, Inc. (hereinafter EIC), an agency which arranges for tutorial services for children who are not performing well academically due to poor speech, language or motor skills, exercised sufficient control over claimant and those similarly situated to establish an employer-employee relationship. After an interview, claimant, a tutor, entered into a tutorial agree[737]*737ment with EIC which was written by EIC. In addition to EIC retaining the right to require tutors to attend workshops and meetings, the agreement also provided that tutors could not deny their services based upon a child’s race, sex, color or handicap. Tutors were required to personally render the tutoring services, any adjustments in a tutor’s work schedule required EIC approval, and they were required to submit bimonthly client summary sheets and documentation of services. Any assessments, evaluations or progress reports regarding the tutored child became the property of EIC. The agreement also prohibited tutors from working for competitors while performing services for EIC as well as for two years following the termination of the agreement.

Under these circumstances we find no reason to disturb the Board’s decisions, even if evidence in the record could support a contrary conclusion (see generally, Matter of Educaid, Inc. [Hartnett], 176 AD2d 420, lv denied 79 NY2d 751; Matter of Schwartz [Creative Tutoring — Roberts], 91 AD2d 778).

Mercure, J. P., Crew III, Yesawich Jr., Peters and Graffeo, 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 March 17, 1998, which, upon reopening and reconsideration, rescinded its prior decisions filed January 23, 1998 and ruled Early Intervention Center of Suffolk, Inc. liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.

Substantial evidence supports the decisions of the Unemployment Insurance Appeal Board finding that Early Intervention Center of Suffolk, Inc. (hereinafter EIC), an agency which arranges for tutorial services for children who are not performing well academically due to poor speech, language or motor skills, exercised sufficient control over claimant and those similarly situated to establish an employer-employee relationship. After an interview, claimant, a tutor, entered into a tutorial agree[737]*737ment with EIC which was written by EIC. In addition to EIC retaining the right to require tutors to attend workshops and meetings, the agreement also provided that tutors could not deny their services based upon a child’s race, sex, color or handicap. Tutors were required to personally render the tutoring services, any adjustments in a tutor’s work schedule required EIC approval, and they were required to submit bimonthly client summary sheets and documentation of services. Any assessments, evaluations or progress reports regarding the tutored child became the property of EIC. The agreement also prohibited tutors from working for competitors while performing services for EIC as well as for two years following the termination of the agreement.

Under these circumstances we find no reason to disturb the Board’s decisions, even if evidence in the record could support a contrary conclusion (see generally, Matter of Educaid, Inc. [Hartnett], 176 AD2d 420, lv denied 79 NY2d 751; Matter of Schwartz [Creative Tutoring — Roberts], 91 AD2d 778).

Mercure, J. P., Crew III, Yesawich Jr., Peters and Graffeo, JJ., concur. Ordered that the decisions are affirmed, without costs.

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Bluebook (online)

263 A.D.2d 736, 693 N.Y.S.2d 308, 1999 N.Y. App. Div. LEXIS 8013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-montalto-nyappdiv-1999.

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