In the Matter of the Claim of Raymond E. Martell IV, Respondent. The Hearst Corporation, Doing Business as The Albany Times Union, Appellant. Commissioner of Labor, Respondent.
Calendar Date November 19, 2019
Hearst Corporation, New York City (Sarah Park of counsel),
E. Woodin, Catskill, for Raymond E. Martell IV, respondent.
Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.
from two decisions of the Unemployment Insurance Appeal
Board, filed September 21, 2017, which ruled, among other
things, that The Hearst Corporation was liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.
delivered newspapers for The Hearst Corporation under a
delivery service agreement that he executed in January 2014.
After he stopped delivering newspapers for Hearst, he applied
for unemployment insurance benefits. The Department of Labor
subsequently undertook an inquiry into claimant's
employment status and determined that an employment
relationship existed between him and Hearst. As a result, the
Department issued an initial determination finding that
claimant was an employee and therefore entitled to
unemployment insurance benefits and that Hearst was liable
for additional contributions based upon remuneration paid to
claimant and others similarly situated. Hearst requested a
hearing, and, following that hearing, an Administrative Law
Judge sustained the Department's determination. On
administrative review, the Unemployment Insurance Appeal
Board affirmed. Hearst appeals.
affirm. As an initial matter, we reject Hearst's due
process arguments regarding certain witnesses, including
claimant, who were subpoenaed but failed to appear at the
hearing. At the hearing, Hearst was afforded its right to
"request that subpoenas be issued to compel the
appearance of relevant witnesses" (12 NYCRR 461.4 [c];
see Matter of Moseley [Commissioner of Labor], 61
A.D.3d 1133, 1134 ; Matter of Box [Commissioner of
Labor], 249 A.D.2d 608, 608 ), and the
Administrative Law Judge reserved the right to draw a
negative inference based upon one of the witness's
nonappearance. At the conclusion of the hearing, however,
Hearst failed to request an adjournment so that it could
pursue the proper method to enforce the subpoenas that were
issued during the course of the hearing but not complied
with; that is, to bring a motion before Supreme Court
"to compel compliance" with the nonjudicial
subpoenas (CPLR 2308 [b]; see State Administrative
Procedure Act § 304; Matter of Murtha v Verizon N.Y.
Inc., 161 A.D.3d 1440, 1442-1443 ; Matter of
Stelmach [Commissioner of Labor], 106 A.D.3d 1353, 1354
n ; Matter of Johnson [Triborough Bridge &
Tunnel Auth.-Commissioner of Labor], 261 A.D.2d 750, 751
; Matter of Anderson v Bane, 199 A.D.2d 708,
to the merits, upon reviewing the record in this case, we
find that the indicia of control retained by Hearst in its
service agreement with claimant are nearly identical to the
relevant factors previously identified to establish an
employer-employee relationship in Matter of Hennessey
(Hearst Corp.-Commissioner of Labor) (172 A.D.3d 1842,
1843-1844 , appeal dismissed 34 N.Y.3d 943');">34 N.Y.3d 943
; see also Matter of Sifontes [Hearst
Corp.-Commissioner of Labor], 175 A.D.3d 1727, 1728
). Accordingly, we conclude that the Board's
decisions are supported by substantial evidence and will not
be disturbed (see Matter of Hennessey [Hearst
Corp.-Commissioner of Labor], 172 A.D.3d at 1843-1844;
Matter of Sebring [Community First Holdings,
Inc.-Commissioner of Labor], 172 A.D.3d 1829, 1829-1830
; Matter of Nicholas [Gannett Satellite Info.
Network, Inc.-Commissioner of Labor], 167 A.D.3d 1180,
1181 ).  To the extent that Hearst's
remaining claims are properly before us, they have been
considered and found to be without merit.
Jr., J.P., Lynch and Clark, JJ., concur.
that the decisions are affirmed, without costs.
 As this claim preceded the enactment of
Labor Law § 511 (23), which was added by the Legislature
in 2016 (L 2016, ch 503, § 1 [Nov. 28, 2016]), the Board
correctly found that the statute does not apply here (see
Matter of Sifontes [Hearst ...