In re the Claim of Rhodes

247 A.D.2d 689, 668 N.Y.S.2d 759, 1998 N.Y. App. Div. LEXIS 979

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1998
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 24, 1996, which assessed Aspex Eyewear, Inc. for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was an outside salesperson for Aspex Eyewear, Inc., an eyeglass frame distributor. The Unemployment Insurance Appeal Board ruled that Aspex was liable for additional contributions based on remuneration paid to claimant and others similarly situated upon a finding that claimant was an employee and not an independent contractor. We affirm. The record establishes that Aspex delineated claimant’s sales territory, exercised final approval over all sales orders, supplied claimant with business cards and a toll-free number for customer calls, tracked claimant’s productivity levels, determined claimant’s rate of compensation without negotiation, provided training and performed all customer billing, collection and shipping functions. In our view, the foregoing constitutes substantial evidence to support the Board’s finding that Aspex exercised sufficient direction and control over claimant’s work to establish an employer-employee relationship under the Labor Law (see, Matter of Rivera [State Line Delivery Serv.— Roberts], 69 NY2d 679, 682, cert denied 481 US 1049; Matter of Preble [Getting to Know You Inti. #2 — Hudacs], 206 AD2d 650).

Mercure, J. P., Crew III, White, Yesawich Jr. and Carpinello, JJ., concur.

Ordered that the decision is affirmed, without costs.