IN RE: the Claim of Daniel K. WILDE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Daniel K. WILDE, Respondent. Enesco Imports Corporation, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 20, 1997

Before MERCURE, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ. McNamee, Lochner, Titus & Williams P.C. (David K. Wukitsch, of counsel), Albany, for appellant. Cynthia Feathers, Saratoga Springs, for Daniel K. Wilde, respondent. Dennis C. Vacco, Attorney-General (William R. Derasmo, of counsel), New York City, for John E. Sweeney, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 9, 1996, which ruled that claimant and others similarly situated were employees of Enesco Imports Corporation.

Claimant worked as a sales representative for Enesco Imports Corporation, a wholesaler of gift and collectible items.   The Unemployment Insurance Appeal Board ruled that claimant was entitled to receive benefits after his employment by Enesco was terminated, finding that he had been an employee of Enesco and not an independent contractor.   We affirm.   This court previously reviewed the nature of Enesco's relationship with its sales representatives in Matter of Neil (Enesco Imports Corp.-Hudacs), 180 A.D.2d 990, 580 N.Y.S.2d 571, lv denied 80 N.Y.2d 758, 589 N.Y.S.2d 308, 602 N.E.2d 1124, wherein we determined that Enesco exercised sufficient control over the results achieved by its sales representatives or over the means used to achieve them to establish an employer/employee relationship (see, Matter of Rivera [State Line Delivery Serv.-Roberts], 69 N.Y.2d 679, 682, 512 N.Y.S.2d 14, 504 N.E.2d 381, cert denied 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 837).   Our review of the record in the instant matter discloses that the only noteworthy change to have occurred in Enesco's dealings with its sales representatives is that it currently requires them to sign a document affirming that they are working for Enesco as independent contractors.   This factor is insufficient to justify a departure from our previous ruling in Matter of Neil (Enesco Imports Corp.-Hudacs) (supra ) as it is well established that such contract terms are not dispositive of the issue of a claimant's employment status (see, Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 A.D.2d 220, 222, 534 N.Y.S.2d 532).   On the contrary, under the circumstances presented here, there was substantial evidence to support the determination that claimant and those similarly situated were employees of Enesco and were, accordingly, eligible for benefits (see, Matter of Luff [Hudacs], 194 A.D.2d 1003, 1004, 599 N.Y.S.2d 878).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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