IN RE: the Claim of Christopher J. SALO

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

IN RE: the Claim of Christopher J. SALO, Respondent. Yvon Mau Wines Inc., Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: February 26, 1998

Before CARDONA, P.J., and MERCURE, CREW, PETERS and CARPINELLO, JJ. Holm, Krisel & O'Hara (William P. Holm, of counsel), New York City, for appellant. Dennis C. Vacco, Attorney General (Steven Segall, of counsel), New York City, for John E. Sweeney, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 14, 1996, which ruled that Yvon Mau Wines Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.

Claimant was a salesperson for Yvon Mau Wines Inc. (hereinafter YMW), a wine distributor.   Substantial evidence supports the Unemployment Insurance Appeal Board's conclusion that YMW exercised sufficient direction and control over the work of claimant and other persons similarly situated to establish their status as YMW's employees and not independent contractors (see, Matter of Rivera [State Line Delivery Serv.-Roberts], 69 N.Y.2d 679, 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).   YMW set claimant's commission rate, established his monthly sales goal, paid claimant biweekly as a draw on his commission and continued to do so even when claimant did not earn enough commission to cover his draw.   YMW also paid claimant $75 per week for business expenses and covered 50% of claimant's monthly health insurance premium.   Additionally, YMW set the price for its wines, provided claimant with sales leads and, after customer orders were placed, handled all shipping and invoicing matters.   While a contrary conclusion could be reached on the record evidence, inasmuch as we find substantial evidence to support the Board's decision that an employer-employee relationship exists, it will not be disturbed (see, Matter of Concourse Ophthalmology Assocs. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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