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MATTER CLAIM ROSEMARY NICOTERA (10/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


October 20, 1969

IN THE MATTER OF THE CLAIM OF ROSEMARY NICOTERA, RESPONDENT. LOU-RIDGE BUILDERS, INC., APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT

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

Author: Greenblott

Appeal by the employer from a decision of the Unemployment Insurance Appeal Board, filed February 10, 1967, holding that appellant became liable for contributions under the Unemployment Insurance Law commencing July 1, 1965 and that claimant was eligible for benefits. Appellant contends that it was not liable under the Unemployment Insurance Law, alleging that it did not pay remuneration of $300 or more in any calendar quarter (Labor Law, ยง 560, subd. 1). Claimant, employed on a part time basis as a clerk-typist, was paid $205.20 in the third quarter of 1965. A cleaning woman was paid $43.50 during that quarter. The total remuneration paid by appellant during that quarter, including sums paid to sales persons who, appellant contends, are independent contractors, was $2,494.43. There is substantial evidence in the record to support the board's findings that the sales representatives and the cleaning woman were employees and not independent contractors. The board was justified in its finding that: "The credible evidence established that the salesmen were employees of the employer. The fact that they worked on a commission basis is not decisive of the issue. Each salesman spent all of his time in the furtherance of the employer's business, and was furnished with the usual paraphernalia incident to the business, and spent considerable time at the model home showing it to prospective customers. The cleaning woman was not in an independently established business. All she sold was her services. She likewise was an employee of the employer."

Disposition

Decision affirmed, with costs.

19691020

© 1998 VersusLaw Inc.



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