In re the Claim of Tupis

234 A.D.2d 834, 651 N.Y.S.2d 245, 1996 N.Y. App. Div. LEXIS 12597

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 29, 1995, which assessed Miles Homes Services, Inc. for additional unemployment insurance contributions based on remuneration paid to claimant.

Claimant was employed as a sales representative for Miles Homes Services, Inc., a company that provided building materials, plans and financing for customers planning to build their own homes. The Unemployment Insurance Appeal Board ruled that Miles exercised sufficient direction and control over claimant’s work as a sales representative to establish his status as Miles’ employee (see, Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679, 682, cert denied 481 US 1049). We agree. Miles initially required claimant to attend training sessions wherein he was inculcated with the sales "pitch” and procedures which Miles deemed most likely to enhance sales. At the end of the training course, claimant was assigned a territory and was given leads on prospective customers that had been generated by Miles’ promotional activities. Claimant was required to make weekly telephonic reports to his manager regarding his sales efforts and results and was chided when he failed to meet his quota of sales. Miles paid claimant directly on a weekly basis, paid bonuses based on productivity and gave claimant an expense account to defray the cost of postage and telephone charges. Our review of the record, including the above-cited indicia of an employer-employee relationship, leads to the conclusion that the Board’s decision was based upon substantial evidence and it is, accordingly, affirmed (see, Matter of Preble [Getting To Know You Intl. #2—Hudacs], 206 AD2d 650, 651; Matter of Landis [Theatrics, Inc.—Hudacs], 193 AD2d 1027).

Mercure, J. P., Crew III, White, Casey and Yesawich Jr., JJ., concur. Ordered that the decision is affirmed, without costs.