IN RE: the Claim of Bertan E. ATAC

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

IN RE: the Claim of Bertan E. ATAC, Respondent. Fashion Realty Group Ltd., Appellant. Commissioner of Labor, Respondent.

Decided: October 28, 1999

Before:  MIKOLL, J.P., CREW III, YESAWICH JR., PETERS and CARPINELLO, JJ. Gurfein & Graubard (Jay J. Gurfein of counsel), New York City, for appellant. McNamee, Lochner, Titus & Williams P.C. (Francis J. Smith of counsel), Albany, for Bertan E. Atac, respondent. Eliot Spitzer, Attorney-General (Marjorie S. Leff of counsel), New York City, for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 25, 1998, which ruled that Fashion Realty Group Ltd. was liable for additional unemployment insurance contributions based on remuneration paid to claimant and those similarly situated.

Claimant worked as a sales representative and broker for Fashion Realty Group Ltd. a commercial real estate brokerage firm which acted as a liaison for companies seeking to lease property.   Notably, the Unemployment Insurance Appeal Board credited evidence indicating that, inter alia, claimant had no written contract with Fashion Realty (cf., Labor Law § 511[19] ), was paid a rate set by the company and was sometimes asked to attend office meetings.   In addition, claimant was forbidden to work for Fashion Realty's competitors and was expected to let someone in the office know in advance if he was not going to be in.   Other indicia of employment included Fashion Realty providing claimant with training, some client leads, business cards, supplies and forms, office space, a telephone and a computer.   Under the circumstances, we find that substantial evidence supports the Board's ruling that Fashion Realty exercised sufficient direction and control over claimant's work to establish that he was an employee and not an independent contractor (see, Matter of Feldstein [Feathered Nest-Commissioner of Labor], 253 A.D.2d 992, 678 N.Y.S.2d 162;  cf., Matter of 12 Cornelia St. [Ross], 56 N.Y.2d 895, 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117).   Fashion Realty's remaining contentions have been reviewed and found to be unpersuasive.

ORDERED that the decision is affirmed, without costs.


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