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MATTER CLAIM ELMER LLOYD v. SANS SOUCI REALTY CORPORATION (04/29/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


April 29, 1969

IN THE MATTER OF THE CLAIM OF ELMER LLOYD, RESPONDENT
v.
SANS SOUCI REALTY CORPORATION, APPELLANT; MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT

Appeal from a decision of the Unemployment Insurance Appeal Board dated September 16, 1964, which decision was reaffirmed on December 2, 1964 upon reopening and reconsideration.

Aulisi, J. Reynolds, J. P., Aulisi, Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum by Aulisi, J.

Author: Aulisi

The sole question presented is whether claimant Elmer Lloyd was an employee or an independent contractor. Lloyd was hired by the appellant corporation in 1958 to manage the garage adjoining the corporation's apartment building on a 24 hour per day, 7 day per week basis. In this capacity, Lloyd was required to park and deliver the tenants' cars at their request. The fee charged for this service was set by appellant corporation and paid for by the tenants directly to it. Lloyd was paid $360 monthly which sum included the wages paid by him to other individuals that he hired from time to time to assist him in providing this "round the clock" service. The fact that a written agreement between the parties identified Lloyd as an independent contractor is not determinative of the issue and the power of the board to look behind the terms of a written contract to determine the actual relationship between the parties is clear (Matter of Burket [ Catherwood ], 25 A.D.2d 704; Matter of Petelinz [ Catherwood ], 9 A.D.2d 828; Matter of Morton, 284 N. Y. 167, 175; Matter of Basin St. [ Lubin ], 6 N.Y.2d 276, 278). Lloyd had no financial interest in the parking garage or its operation and his duties were limited to providing parking service to the tenants as required by appellant corporation. As noted by the board, he also performed these same services, without charge, for the patients of a doctor whose office was located in the apartment building as directed by his employer. Only a factual question was presented and the evidence, including the legitimate inferences to be drawn therefrom, is sufficient to support the board's finding that Lloyd was an employee.

 Disposition

Decision affirmed, with costs.

19690429

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