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LTI, Inc. v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 4, 2008

IN THE MATTER OF LTI, INC., APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Mercure, J.P., Carpinello, Lahtinen, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 24, 2007, which assessed LTI, Inc. for additional unemployment insurance contributions.

In a prior decision, the Unemployment Insurance Appeal Board ruled that LTI, Inc. was the employer of certain individuals it retained to administer tests to job candidates and found that it was liable for additional unemployment insurance contributions based on remuneration paid to such individuals. The Board's decision was subsequently affirmed by this Court (Matter of LaFleur [LTI, Inc. Commissioner of Labor], 27 AD3d 935 [2006], lv dismissed 7 NY3d 783 [2006]). The Court of Appeals, however, declined to undertake review because the decision was non-final. As a result, further administrative proceedings followed, which resulted in a second decision by the Board ruling that the amount of additional unemployment insurance contributions owed by LTI was $1,122.06. LTI appeals.

Initially, we note that LTI does not contest the Board's calculation of the amount of the additional contributions owed. Rather, it argues that it does not owe any additional contributions because the individuals at issue were not its employees. Inasmuch as this question was squarely decided in Matter of LaFleur (LTI, Inc. Commissioner of Labor) (supra), it has res judicata effect and is binding as the law of the case in the instant proceeding (see Matter of Robinson [New York Times Newspaper Div. of New York Times Co. Harnett], 168 AD2d 746, 747 [1990], lv denied 78 NY2d 853 [1991]). In view of this, and given LTI's concession that it has brought the instant appeal solely for the purpose of obtaining a final order reviewable by the Court of Appeals, we decline to disturb the Board's decision.

Mercure, J.P., Carpinello, Lahtinen, Malone Jr. and Stein, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20081204

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