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Cristiano v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


May 28, 2009

IN THE MATTER OF SALVATORE CRISTIANO, DOING BUSINESS AS L & S TAILOR, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: April 8, 2009

Before: Cardona, P.J., Peters, Rose, Kane and McCarthy, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 11, 2007, which ruled that Salvatore Cristiano was liable for additional unemployment insurance contributions based on remuneration paid to tailors and others similarly situated.

Whether an employer-employee relationship exists is a factual issue for the Unemployment Insurance Appeal Board to resolve and its determination in that regard will not be overturned so long as it is supported by substantial evidence (see Matter of Singh [Thomas A. Sirianni, Inc. - Commissioner of Labor], 43 AD3d 498, 498 [2007]). Here, the record reveals that Salvatore Cristiano, in the course of his tailoring business, interviewed three tailors to perform alteration services for him and tested their skills before deciding to use them. He gave them written instructions regarding the alterations to be performed for each job and inspected their work to make sure that it was done correctly. These tailors were responsible for fixing any errors without receiving additional pay. Cristiano paid the tailors before he was compensated by the customers. Given the foregoing, we conclude that the record as a whole contains substantial evidence to support the Board's finding that an employment relationship existed, notwithstanding the existence of certain indicia of non-employment status (see Matter of Lessman [Snowlift LLC - Commissioner of Labor], 54 AD3d 1078, 1079 [2008]).

Cristiano's remaining contentions, to the extent not specifically addressed herein, have been examined and found to be unavailing.

Cardona, P.J., Peters, Rose, Kane and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090528

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