In re the Claim of Myers

Appellate Division of the Supreme Court of New York

In re the Claim of Myers

136 A.D.2d 787, 523 N.Y.S.2d 251, 1988 N.Y. App. Div. LEXIS 16

Appellate Division of the Supreme Court of the State of New York·Decided January 7, 1988·Published

Opinion

Mikoll, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 14, 1986, which ruled that claimant was entitled to receive benefits.

Claimant was hired by Lee Publications, Inc., to deliver weekly newspapers to Lee’s subscribers. In a determination made on claimant’s original claim for benefits, the Commissioner of Labor held that claimant and all other persons performing similar services were employees of Lee and eligible to receive benefits. The Unemployment Insurance Appeal Board sustained this determination and Lee appealed to this court.

There should be an affirmance. The decision of the Board is supported by substantial evidence in the record (see, Matter of Di Martino [Buffalo Courier Express Co.—Ross], 89 AD2d 829, [788] affd 59 NY2d 638). The Board’s finding of an employer-employee relationship existing in this case is consistent with its own precedent in a series of delivery cases (see, Matter of Martin [Troy Publ. Co.—Roberts], 70 NY2d 679, revg 122 AD2d 360; Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679; Matter of Di Martino [Buffalo Courier Express Co. —Ross], 59 NY2d 638, supra). The instant determination is neither arbitrary nor capricious, and is in conformity with the directive of the Court of Appeals in Matter of Field Delivery Serv. (Roberts) (66 NY2d 516).

Decision affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.

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Mikoll, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 14, 1986, which ruled that claimant was entitled to receive benefits.

Claimant was hired by Lee Publications, Inc., to deliver weekly newspapers to Lee’s subscribers. In a determination made on claimant’s original claim for benefits, the Commissioner of Labor held that claimant and all other persons performing similar services were employees of Lee and eligible to receive benefits. The Unemployment Insurance Appeal Board sustained this determination and Lee appealed to this court.

There should be an affirmance. The decision of the Board is supported by substantial evidence in the record (see, Matter of Di Martino [Buffalo Courier Express Co.—Ross], 89 AD2d 829, [788] affd 59 NY2d 638). The Board’s finding of an employer-employee relationship existing in this case is consistent with its own precedent in a series of delivery cases (see, Matter of Martin [Troy Publ. Co.—Roberts], 70 NY2d 679, revg 122 AD2d 360; Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679; Matter of Di Martino [Buffalo Courier Express Co. —Ross], 59 NY2d 638, supra). The instant determination is neither arbitrary nor capricious, and is in conformity with the directive of the Court of Appeals in Matter of Field Delivery Serv. (Roberts) (66 NY2d 516).

Decision affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.

In re the Claim of Myers, 136 A.D.2d 787, 523 N.Y.S.2d 251, 1988 N.Y. App. Div. LEXIS 16 (N.Y. Ct. App. 1988).

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