In re the Claim of Nicotera

Appellate Division of the Supreme Court of New York

In re the Claim of Nicotera

33 A.D.2d 584, 304 N.Y.S.2d 293, 1969 N.Y. App. Div. LEXIS 3108

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

DecidedOctober 20, 1969

StatusPublished

Cited by2 cases

This text of 33 A.D.2d 584 (In re the Claim of Nicotera) 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 Nicotera, 33 A.D.2d 584, 304 N.Y.S.2d 293, 1969 N.Y. App. Div. LEXIS 3108 (N.Y. Ct. App. 1969).

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Opinion

Greenblott, J.

Appeal by the employer from a decision of the Unemployment Insurance Appeal Board, filed February 10, 1967, holding that appellant became liable for contributions under the Unemployment Insurance Law commencing July 1, 1965 and that claimant was eligible for benefits. Appellant contends that it was not liable under the Unemployment Insurance Law, alleging that it did not pay remuneration of $300 or more in any calendar quarter (Labor Law, § 560, subd. 1). Claimant, employed on a part time basis as a clerk-typist, was paid $205.20 in the third quarter of 1965. A cleaning woman was paid $43.50 during that quarter. The total remuneration paid by appellant during that quarter, including sums paid to sales -persons who, appellant contends, are independent contractors, was $2,494.43. There is substantial evidence in the record to support the board’s findings that the sales representatives and the cleaning woman were employees and not independent contractors. The board was justified in its finding that: "The credible evidence established that the salesmen were employees of the employer. The fact that they worked on a commission basis is not decisive of the issue. Each salesman spent all of his time in the furtherance of the ■employer's business, and was furnished with the usual paraphernalia incident to the business, and spent considerable time at the model home showing it to prospective customers. The cleaning womaii was not in an independently established business. All she sold was her services. She likewise was an employee of the employer.” Decision affirmed, with costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.

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Greenblott, J.

Appeal by the employer from a decision of the Unemployment Insurance Appeal Board, filed February 10, 1967, holding that appellant became liable for contributions under the Unemployment Insurance Law commencing July 1, 1965 and that claimant was eligible for benefits. Appellant contends that it was not liable under the Unemployment Insurance Law, alleging that it did not pay remuneration of $300 or more in any calendar quarter (Labor Law, § 560, subd. 1). Claimant, employed on a part time basis as a clerk-typist, was paid $205.20 in the third quarter of 1965. A cleaning woman was paid $43.50 during that quarter. The total remuneration paid by appellant during that quarter, including sums paid to sales -persons who, appellant contends, are independent contractors, was $2,494.43. There is substantial evidence in the record to support the board’s findings that the sales representatives and the cleaning woman were employees and not independent contractors. The board was justified in its finding that: "The credible evidence established that the salesmen were employees of the employer. The fact that they worked on a commission basis is not decisive of the issue. Each salesman spent all of his time in the furtherance of the ■employer's business, and was furnished with the usual paraphernalia incident to the business, and spent considerable time at the model home showing it to prospective customers. The cleaning womaii was not in an independently established business. All she sold was her services. She likewise was an employee of the employer.” Decision affirmed, with costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.

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33 A.D.2d 584, 304 N.Y.S.2d 293, 1969 N.Y. App. Div. LEXIS 3108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-nicotera-nyappdiv-1969.

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