In re the Claim of Szymanski

Appellate Division of the Supreme Court of New York

In re the Claim of Szymanski

89 A.D.2d 691, 454 N.Y.S.2d 32, 1982 N.Y. App. Div. LEXIS 17822

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

DecidedJuly 15, 1982

StatusPublished

Cited by1 cases

This text of 89 A.D.2d 691 (In re the Claim of Szymanski) 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 Szymanski, 89 A.D.2d 691, 454 N.Y.S.2d 32, 1982 N.Y. App. Div. LEXIS 17822 (N.Y. Ct. App. 1982).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 26,1981, which determined that claimant was entitled to unemployment insurance benefits. Claimant demonstrated cosmetics at retail establishments under the aegis of appellant Yvonne Meyer Model Service (the agency). After her work terminated, claimant filed for unemployment insurance benefits. The agency challenges the board’s finding that claimant was a covered employee rather than an independent contractor. Whether an individual is an employee or an independent contractor is a factual issue for the board (Matter of Frattallone ['Victor Addressing Corp—Levine], 39 AD2d 984). Evidence presented to the board revealed that the agency determined claimant’s hours and place of work, required her to submit completed time cards, and that claimant received her hourly pay from the agency, not the retail establishments. There was testimony that she was not allowed to solicit work on her own, but was bound by contract to work exclusively for the agency and that she was covered under, the agency’s workers’ compensation policy. Claimant also testified that Mrs. Meyer came to the stores on occasion to supervise the demonstrators. These facts provided substantial evidence that an employer-employee relationship existed. The agency’s attempt to bring this case within the ambit of Matter of Barnaba Photographers Corp. (Miller) (263 App Div 915, affd 289 NY 587) is unconvincing. There it was concluded that professional freelance models “free to pose for any one who desires their services or for any one who may engage them” were independent contractors. Claimant testified that such freedom was unavailable here, hence Matter of Barnaba is distinguishable. Moreover, the observation that “[mjodeling is a profession requiring ability, skill, and experience, and models are persons engaged in the pursuit of an independent profession or vocation” (Matter of Barnaba Photographers Corp. [Miller], supra, p 916) is hardly applicable to cosmetics demonstrators whose duties, according to this record, are simply to distribute samples, apply cosmetics to customers, and extoll the virtues of products in an effort to make sales. Decision affirmed, without costs. Main, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 26,1981, which determined that claimant was entitled to unemployment insurance benefits. Claimant demonstrated cosmetics at retail establishments under the aegis of appellant Yvonne Meyer Model Service (the agency). After her work terminated, claimant filed for unemployment insurance benefits. The agency challenges the board’s finding that claimant was a covered employee rather than an independent contractor. Whether an individual is an employee or an independent contractor is a factual issue for the board (Matter of Frattallone ['Victor Addressing Corp—Levine], 39 AD2d 984). Evidence presented to the board revealed that the agency determined claimant’s hours and place of work, required her to submit completed time cards, and that claimant received her hourly pay from the agency, not the retail establishments. There was testimony that she was not allowed to solicit work on her own, but was bound by contract to work exclusively for the agency and that she was covered under, the agency’s workers’ compensation policy. Claimant also testified that Mrs. Meyer came to the stores on occasion to supervise the demonstrators. These facts provided substantial evidence that an employer-employee relationship existed. The agency’s attempt to bring this case within the ambit of Matter of Barnaba Photographers Corp. (Miller) (263 App Div 915, affd 289 NY 587) is unconvincing. There it was concluded that professional freelance models “free to pose for any one who desires their services or for any one who may engage them” were independent contractors. Claimant testified that such freedom was unavailable here, hence Matter of Barnaba is distinguishable. Moreover, the observation that “[mjodeling is a profession requiring ability, skill, and experience, and models are persons engaged in the pursuit of an independent profession or vocation” (Matter of Barnaba Photographers Corp. [Miller], supra, p 916) is hardly applicable to cosmetics demonstrators whose duties, according to this record, are simply to distribute samples, apply cosmetics to customers, and extoll the virtues of products in an effort to make sales. Decision affirmed, without costs. Main, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.

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89 A.D.2d 691, 454 N.Y.S.2d 32, 1982 N.Y. App. Div. LEXIS 17822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-szymanski-nyappdiv-1982.

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