IN RE: the Claim of Thomas C. McCARTHY

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

IN RE: the Claim of Thomas C. McCARTHY, Respondent. Monsieur Touton Selection Ltd., Appellant. Commissioner of Labor, Respondent.

Decided: October 26, 2000

Before:  MERCURE, J.P., PETERS, CARPINELLO, GRAFFEO and LAHTINEN, JJ. Janow & Meyer LLC (Hugh Janow of counsel), Pearl River, for appellant. Eliot Spitzer, Attorney-General (Dawn A. Foshee of counsel), New York City, for Commissioner of Labor, respondent. McNamee, Lochner, Titus & Williams P.C. (Francis J. Smith of counsel), Albany, for Thomas C. McCarthy, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 25, 1999, which assessed Monsieur Touton Selection Ltd. for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Claimant was hired as a sales representative for Monsieur Touton Selection Ltd., a wine distributor, after responding to an advertisement seeking sales persons to sell its wines in established territories.   Although claimant was paid on a commission basis, he received $2,000 a month during the summer slow season.   In addition to paying the fee for the license required for claimant to be a liquor salesperson, Touton Selection also provided claimant with a beeper, business cards with Touton Selection's telephone and fax numbers, a $600 a month expense stipend and use of Touton Selection's telephone, fax and point of sale paraphernalia at no cost.

There were monthly sales meetings which claimant was expected, albeit not required, to attend at which new products were introduced and information was conveyed to assist in selling the products.   Touton Selection set the price for the wines and arranged for delivery to the customer.   Although claimant was not limited to a particular territory and was expected to bring in his own clients, he was nevertheless given a customer list.   Upon a periodic performance review by the sales manager, claimant would either be rewarded with more customer accounts or penalized by having accounts taken away.

Under the particular circumstances of this case, substantial evidence exists to support the decision of the Unemployment Insurance Appeal Board that there was sufficient direction and control over claimant's work to establish his status as an employee of Touton Selection, notwithstanding that the record contains evidence to support a contrary conclusion (see, Matter of Roman [Berglund-Commissioner of Labor], 252 A.D.2d 707, 675 N.Y.S.2d 427;  Matter of Salo [Yvon Mau Wines-Sweeney], 247 A.D.2d 808, 669 N.Y.S.2d 405).

ORDERED that the decision is affirmed, without costs.


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