IN RE: the Claim of John F. BENJAMIN

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

IN RE: the Claim of John F. BENJAMIN, Respondent. Robert Cavanaugh, Doing Business as Northgate Barber Shop, Northgate Plaza, Appellant. Commissioner of Labor, Respondent. (And Another Related Claim.)

Decided: October 28, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, YESAWICH JR. and PETERS, JJ. Bartlett, Pontiff, Stewart & Rhodes (Malcolm B. O'Hara of counsel), Glens Falls, for appellant. Cynthia Feathers, Saratoga Springs, for John F. Benjamin, respondent. Eliot Spitzer, Attorney-General (Dawn A. Foshee of counsel), New York City, for Commissioner of Labor, respondent.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed August 28, 1998, which ruled, inter alia, that Northgate Barber Shop was liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.

Claimant, a barber, responded to an advertisement and, following an interview, rented a chair from Northgate Barber Shop for percentage of his weekly fees.   Following the termination of this relationship, the Unemployment Insurance Appeal Board sustained the determination of an Administrative Law Judge which found that while the parties may have initially intended an independent contractor relationship as an area renter, it evolved into an employer-employee relationship in light of the day-to-day practices.   We affirm.   Claimant testified that while he used his own tools, Northgate provided the other needed supplies, set the hours that the barber shop was open as well as the price for a haircut, which claimant could not discount.   Claimant followed Northgate's procedures with regard to answering the telephone, setting appointments and dealing with walk-in clients.   Claimant also testified that Northgate would not permit him to shave a client's head and suggested that he not wear jeans to work.   Although the record may support a contrary conclusion, substantial evidence nevertheless supports the Board's decisions (see, Matter of Hair [Hartnett], 142 A.D.2d 800, 530 N.Y.S.2d 882).

Furthermore, the Board is not bound by the fact that claimant was required to obtain an area renter license pursuant to the General Business Law in determining claimant's employment status (see generally, Matter of Bakal [Trendata Inc.-Hudacs], 192 A.D.2d 817, 596 N.Y.S.2d 543).

ORDERED that the decisions are affirmed, without costs.


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