IN RE: the Claim of Rocita RICHARDSON

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

IN RE: the Claim of Rocita RICHARDSON, Respondent. A Caring Hand Inc., Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: January 29, 1998

Before CARDONA, P.J., and MIKOLL, YESAWICH, PETERS and SPAIN, JJ. Roberts & Holland LLP (Richard A. Levine, of counsel), New York City, for appellant. Maynard, O'Connor, Smith & Catalinotto (Leslie B. Neustadt, of counsel), Albany, for Rocita Richardson, respondent. 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 September 27, 1996, which ruled that A Caring Hand Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and to those similarly situated.

Claimant worked as a homemaker for A Caring Hand Inc. (hereinafter Caring Hand), a business that provided domestic help to predominantly elderly and infirm clients.   The record contains substantial evidence to support the conclusion of the Unemployment Insurance Appeal Board that Caring Hand exercised sufficient direction and control over claimant's work to establish her status, and that of all other individuals similarly situated, as employees (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).   Caring Hand determined the terms of claimant's employment, including the hours of her workday and the amount of her salary, which was paid directly to claimant on a weekly basis by Caring Hand, regardless of whether it had received payment from the client.   Further, claimant was precluded, pursuant to a written agreement, from accepting employment from one of Caring Hand's clients within 90 days of leaving its employ and she was admonished that repeated absences from work would result in her dismissal.   It is noteworthy that claimant had no business cards, business bank account or any other indicia of self-employment.   We conclude that the Board's finding of an employment relationship in this matter should not be disturbed (see, Matter of Gentile Nursing Servs. [Roberts], 65 N.Y.2d 622, 491 N.Y.S.2d 156, 480 N.E.2d 745;  Matter of Kimberg [Hudacs], 188 A.D.2d 781, 591 N.Y.S.2d 98).

ORDERED that the decision is affirmed, without costs.


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