IN RE: the Claim of Raymond E. MARTELL IV (2020)

MEMORANDUM AND ORDER

Appeals 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.

Claimant 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.

We 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, 877 N.Y.S.2d 491 [2009]; Matter of Box [Commissioner of Labor], 249 A.D.2d 608, 608, 670 N.Y.S.2d 930 [1998]), 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, 76 N.Y.S.3d 662 [2018]; Matter of Stelmach [Commissioner of Labor], 106 A.D.3d 1353, 1354 n, 965 N.Y.S.2d 259 [2013]; Matter of Johnson [Triborough Bridge & Tunnel Auth.-Commissioner of Labor], 261 A.D.2d 750, 751, 689 N.Y.S.2d 756 [1999]; Matter of Anderson v. Bane, 199 A.D.2d 708, 711, 606 N.Y.S.2d 339 [1993]).

Turning 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 Hennessy (Hearst Corp.-Commissioner of Labor), 172 A.D.3d 1842, 1843–1844, 102 N.Y.S.3d 310 [2019], appeal dismissed 34 N.Y.3d 943, 110 N.Y.S.3d 396, 134 N.E.3d 137 [2019]; see also Matter of Sifontes [Hearst Corp.-Commissioner of Labor], 175 A.D.3d 1727, 1728, 106 N.Y.S.3d 919 [2019]. Accordingly, we conclude that the Board's decisions are supported by substantial evidence and will not be disturbed (see Matter of Hennessy [Hearst Corp.-Commissioner of Labor], 172 A.D.3d at 1843–1844, 102 N.Y.S.3d 310; Matter of Sebring [Community First Holdings, Inc.-Commissioner of Labor], 172 A.D.3d 1829, 1829–1830, 103 N.Y.S.3d 169 [2019]; Matter of Nicholas [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 167 A.D.3d 1180, 1181, 87 N.Y.S.3d 919 [2018]).¹ To the extent that Hearst's remaining claims are properly before us, they have been considered and found to be without merit.

ORDERED that the decisions are affirmed, without costs.

FOOTNOTES

1.   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 Corp.-Commissioner of Labor], 175 A.D.3d at 1728 n., 106 N.Y.S.3d 919).

Pritzker, J.

Egan Jr., J.P., Lynch and Clark, JJ., concur.