typically to have worked a six day, fifty-plus hour week for Telecomm before he became ill. He was paid both by Telecomm and NAI, and the income was reported to the Internal Revenue Service, at least in 1992, as nonemployee compensation on Form 1099 rather than as wages on Form W-2. Telecomm maintains that this was done because it was advantageous to Moss for tax purposes and that the use of the 1099s is not conclusive of whether Moss was an employee.
In March 1992, Moss was diagnosed with lung cancer. During the ensuing months, he spent significant periods in the hospital and was unable to work as he had done before. Nonetheless, Telecomm claims that it deemed him to be a permanent, full-time employee and continued to pay him on that basis throughout his illness. He died on December 15, 1992.
Plaintiff filed a death claim form and a death certificate with SunLife on December 22, 1992 seeking benefits in the amount of $ 300,000. The death certificate, certified by a Deputy Register of Vital Statistics, listed the "name and locality of company or firm" of the decedent as "Eric Moss Atty Great Neck, NY."
(Prior Aff. Ex. E, at 1) The employer's portion of the claim form, completed by Telecomm, reported Telecomm as Moss' employer, characterized Moss as an employee, and listed his salary as $ 180,000 per year. (Id. at 2)
The report of Moss' salary as having been $ 180,000 raised a question at SunLife because employee censuses submitted by Telecomm during 1992 contained inconsistent information, as follows:
January $ 150,000
March 18 $ 130,000
August 10 $ 120,000
November $ 120,000
December $ 150,000
December 22 $ 180,000
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