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MATTER IMPERIAL INVESTING CORPORATION (06/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


June 27, 1968

IN THE MATTER OF IMPERIAL INVESTING CORPORATION, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT

Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.

Author: Herlihy

Appeal from a decision of the Unemployment Insurance Appeal Board granting the employer's application to reopen and reconsider a prior decision and affirming a determination assessing to the employer additional contributions. It appears that approximately one year before the determination, changes had taken place in the operation of the employer's real estate business and that the president and principal stockholder of the corporation took over the duties and responsibilities of operating the building owned by the corporation. His usual business was that of an attorney but separate from that professional responsibility, he undertook to operate the building by collecting rents, paying obligations, hiring and firing employees and assuming the entire responsibility for the maintenance and operation of the property "on the executive level", which also included preparation and filing of tax returns, making investments, et cetera. He was paid commissions for such work based upon recognized real estate rates in the locality. The employer contends that the duties of its officer were those of an independent contractor, but the factual findings by the board are supported by substantial evidence and which determination is solely within the province of the board. There are legal precedents in somewhat similar factual situations which support the board's determination. (Matter of Tri-Reme Realty Corp. [ Corsi ], 269 App. Div. 872, affd. 296 N. Y. 566; Matter of Dybdal [ Corsi ], 274 App. Div. 1084; Matter of Empirt 207 Fed. Credit Union [ Catherwood ], 28 AD 2d 1189.)

Disposition

Decision affirmed, with costs.

19680627

© 1998 VersusLaw Inc.



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