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In re Claim of Friman

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


May 13, 2010

IN THE MATTER OF THE CLAIM OF PAUL L. FRIMAN, RESPONDENT.
BOLAN JAHNSEN SALTER & SACHS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Mercure, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ.

Appeal from four decisions of the Unemployment Insurance Appeal Board, filed October 21, 2008, which, among other things, ruled the employer liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.

Claimant, an attorney, worked at a newly formed law firm in 2006. After his relationship with the law firm ended, claimant applied for unemployment insurance benefits. Extensive hearings were conducted, and the Unemployment Insurance Appeal Board ultimately determined that claimant was an employee rather than a partner of the law firm, although it directed further inquiry into several issues, including why claimant had left that employment. The law firm now appeals and we affirm.

Despite material that would permit another result, substantial evidence in the record supports the Board's determination. Claimant testified that he began work with the law firm as an associate and rejected a subsequent offer to become a partner. He joined the firm with the expectation of receiving a fixed salary, was reimbursed for his health insurance expenses, and was provided with office space and supplies by the firm. Moreover, his billable rate was set by partners at the firm and the partners continued to assign cases to him and direct his work to some degree. We accordingly perceive no basis upon which to disturb the Board's finding that claimant was not a partner and that "the law firm exercised sufficient direction and control over important aspects of claimant's work to render [him] an employee" (Matter of Mintzer [Sheft & Sheft -- Commissioner of Labor], 281 AD2d 734, 734-735 [2001]; see Matter of Spinnell [Commissioner of Labor], 300 AD2d 770, 770-771 [2002]).

We have considered the law firm's remaining arguments and found them to be without merit.

Mercure, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decisions are affirmed, without costs.

20100513

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