In re the Claim of Varrecchia

Appellate Division of the Supreme Court of New York

In re the Claim of Varrecchia

234 A.D.2d 826, 651 N.Y.S.2d 663, 1996 N.Y. App. Div. LEXIS 12604

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

DecidedDecember 19, 1996

StatusPublished

Cited by8 cases

This text of 234 A.D.2d 826 (In re the Claim of Varrecchia) 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 Varrecchia, 234 A.D.2d 826, 651 N.Y.S.2d 663, 1996 N.Y. App. Div. LEXIS 12604 (N.Y. Ct. App. 1996).

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Opinion

—Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed May 26, 1995, which ruled that the employer was liable for unemployment insurance contributions, and (2) from a decision of said Board, filed June 13, 1996, which, upon reconsideration, adhered to its prior decision.

The Board ruled that claimant was an employee, not an independent contractor, of Wade Rusco, Inc., a distributor of business forms. Claimant had been hired to make deliveries for Wade Rusco during periods when there was more work than could be handled by the five full-time drivers who were its acknowledged employees or when deliveries had to be made outside the local area. Once claimant had accepted an assignment, his relationship with Wade Rusco was identical to that enjoyed by its acknowledged employees. Wade Rusco had complete control over the destination and timing of claimant’s deliveries, set the rate charged to customers, required claimant to submit proof of delivery on a form provided by Wade Rusco and paid claimant in his individual name regardless of whether its customers remitted payment. We find there to be substantial evidence to support the Board’s finding in this matter and it will not, accordingly, be disturbed (see, Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679, 682, cert denied 481 US 1049; Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932, 933; see also, Matter of Short [Ranger Transp.— Sweeney], 233 AD2d 676).

As for the employer’s assertion that claimant should be disqualified from receiving benefits because he was allegedly discharged for misconduct, we note that since this issue was [827]*827not squarely placed in issue during the administration process or addressed by the Board, it need not be reviewed by this Court (see, Matter of Stein [Bravo Co.—Roberts], 139 AD2d 861, 863). The remaining arguments raised by the employer have been considered and found unpersuasive.

Cardona, P. J., Mikoll, Mercure, Crew III and White, JJ., concur. Ordered that the decisions are affirmed, without costs.

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—Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed May 26, 1995, which ruled that the employer was liable for unemployment insurance contributions, and (2) from a decision of said Board, filed June 13, 1996, which, upon reconsideration, adhered to its prior decision.

The Board ruled that claimant was an employee, not an independent contractor, of Wade Rusco, Inc., a distributor of business forms. Claimant had been hired to make deliveries for Wade Rusco during periods when there was more work than could be handled by the five full-time drivers who were its acknowledged employees or when deliveries had to be made outside the local area. Once claimant had accepted an assignment, his relationship with Wade Rusco was identical to that enjoyed by its acknowledged employees. Wade Rusco had complete control over the destination and timing of claimant’s deliveries, set the rate charged to customers, required claimant to submit proof of delivery on a form provided by Wade Rusco and paid claimant in his individual name regardless of whether its customers remitted payment. We find there to be substantial evidence to support the Board’s finding in this matter and it will not, accordingly, be disturbed (see, Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679, 682, cert denied 481 US 1049; Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932, 933; see also, Matter of Short [Ranger Transp.— Sweeney], 233 AD2d 676).

As for the employer’s assertion that claimant should be disqualified from receiving benefits because he was allegedly discharged for misconduct, we note that since this issue was [827]*827not squarely placed in issue during the administration process or addressed by the Board, it need not be reviewed by this Court (see, Matter of Stein [Bravo Co.—Roberts], 139 AD2d 861, 863). The remaining arguments raised by the employer have been considered and found unpersuasive.

Cardona, P. J., Mikoll, Mercure, Crew III and White, JJ., concur. Ordered that the decisions are affirmed, without costs.

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234 A.D.2d 826, 651 N.Y.S.2d 663, 1996 N.Y. App. Div. LEXIS 12604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-varrecchia-nyappdiv-1996.

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