IN RE: the Claim of George D. FOSTER (2002)

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 18, 2000, which ruled that Peter A. Tacy Jr. was liable for additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated employees.

Citing evidence in the record which would support the conclusion that claimant and other mortgage consultants who work for Peter A. Tacy Jr., a licensed mortgage broker, are independent contractors, Tacy contends that the Unemployment Insurance Appeal Board erred in concluding that they are employees.   However, the record also contains evidence of Tacy's control over claimant and others similarly situated.   For example, there is evidence that claimant consulted Tacy with regard to the appropriate fee to charge a customer and submitted all loan documents to Tacy for review.   Claimant obtained customer leads through a rotating system used to route customer calls to the office number listed in Tacy's advertisements.   Claimant was required to follow up on calls assigned to him and the office manager periodically checked on whether claimant was doing so.   Claimant was paid by commission but was allowed a weekly draw against commissions in an amount fixed by Tacy.

Inasmuch as there is substantial evidence to support the Board's conclusion that Tacy exercised sufficient control over claimant and others similarly situated to demonstrate an employer-employee relationship, the Board's decision must be affirmed, despite the existence of record evidence which could have supported a contrary conclusion (see, Matter of Concourse Ophthalmology Assocs., 60 N.Y.2d 734, 469 N.Y.S.2d 78, 456 N.E.2d 1201;  Matter of Barnhart [Hudacs], 189 A.D.2d 1050, 593 N.Y.S.2d 100).

ORDERED that the decisions are affirmed, without costs.

CARPINELLO, J.

MERCURE, J.P., PETERS, SPAIN and LAHTINEN, JJ., concur.