SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 22, 1968
IN THE MATTER OF HAROLD P. HAWLEY, DOING BUSINESS AS HOUSE OF PHOTOGRAPHY, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 10, 1967, assessing additional contributions for the period from October 1, 1960 through December 31, 1965. The issue presented is whether or not the alleged employee was an independent contractor rather than an employee. The board found that the employer exercised supervision, direction and control over the employee's activities, and that she was an employee throughout the period in issue. The board's determination is supported by substantial evidence which established that the employer instructed the employee, a photographer, in the proper method of taking pictures; helped the employee with technical problems; provided the materials necessary to carry on the work; received weekly reports from the employee on every picture taken; and determined whether or not the photographs met the quality and standard of the employer. The question of the existence of an employment relationship is factual and, where such a finding is supported by the evidence, it must be accepted as final and conclusive. (Labor Law, § 623; Matter of Electrolux Corp. [ Miller ], 288 N. Y. 440; Matter of Kelly [ Catherwood ], 28 A.D.2d 786.)
Decision affirmed, without costs.
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