IN RE: the Claim of Daniel M. GEORGE

Reset A A Font size: Print

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

IN RE: the Claim of Daniel M. GEORGE, Respondent. Upstate Merchandising Inc., Appellant, Commissioner of Labor, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., and MIKOLL, CREW, CARPINELLO and GRAFFEO, JJ. Joseph Siracusa, Syracuse, for appellant. James W. Cooper, Warrensburg, for Daniel M. George, respondent. Dennis C. Vacco, Attorney-General (Dawn A. Foshee of counsel), New York City, for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 2, 1997, which assessed Upstate Merchandising Inc. for additional contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was employed as a salesperson for Upstate Merchandising Inc., a manufacturer's and supplier's representative.   Substantial evidence supports the Unemployment Insurance Appeal Board's conclusion that Upstate exercised sufficient direction and control over the work of claimant and those similarly situated to establish their status as employees rather than independent contractors.   The record discloses that Upstate paid claimant a $500 weekly draw against commissions, required claimant to attend manufacturer's meetings and trade shows, furnished sales leads, business cards and other office supplies, reimbursed claimant for travel and telephone expenses and required claimant to check into the office daily.   Upstate further directed the manner in which claimant performed his work by prohibiting him from disclosing confidential information and from selling competing products for other manufacturers.   This proof constitutes substantial evidence to support the Board's decision that an employer-employee relationship existed (see, Matter of Rhodes [Aspex Eyewear-Sweeney], 247 A.D.2d 689, 668 N.Y.S.2d 759;  Matter of Dolhon [United Group Agency of N.Y.-Sweeney], 236 A.D.2d 749, 654 N.Y.S.2d 46), notwithstanding that the record contains proof to support a contrary conclusion (see, Matter of Roman [Berglund-Commissioner of Labor], 252 A.D.2d 707, 675 N.Y.S.2d 427).   We have considered Upstate's remaining contentions, including that it was improperly denied the right to cross-examine claimant, and find them to be without merit.

ORDERED that the decision is affirmed, without costs.


Copied to clipboard