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In the Matter of Body Electric

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


November 23, 2011

IN THE MATTER OF BODY ELECTRIC CORPORATION OF AMERICA, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 6, 2009, which, among other things, assessed Body Electric Corporation of America for additional unemployment insurance contributions.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: October 17, 2011

Before: Mercure, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Substantial evidence supports the Unemployment Insurance Appeal Board's decision to assess Body Electric Corporation of America for additional unemployment insurance contributions, as well as a fraud penalty, for the audit period 2003 to 2006 based upon a finding that Leona Fox, a shipper for the company, was an employee rather than independent contractor. The record establishes that a prior Board decision, dated September 3, 2004, found, among other things, that Fox was an employee for the purpose of unemployment insurance contributions during the audit period 2000 to 2002. Even crediting Body Electric's claim that certain aspects of Fox's duties subsequently changed as of April 2005, the record indicates that Body Electric continued to direct and control her activities. Specifically, Body Electric provided Fox with clients to whom its videos should be shipped, paid mailing expenses, handled customer complaints and determined Fox's rate of pay. Despite requests and a subpoena issued by the Department of Labor, Body Electric submitted limited records and information that were insufficient to change the previously-determined employer-employee relationship. In view of the foregoing, the Board's determination will not be disturbed, notwithstanding evidence in the record that could support a contrary conclusion (see Matter of England [Levine], 38 NY2d 829, 830 [1976]; Matter of Executive Educ. Inst. [Commissioner of Labor], 270 AD2d 601, 602 [2000]).

Finally, the circumstances herein support the Board's finding that a penalty was warranted (see Labor Law § 570 [4]), despite Body Electric's proffered excuses for the failure to cooperate.

The remaining contentions raised by Body Electric have been reviewed and found to be without merit.

Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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