IN RE: HERTZ CORPORATION

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

IN RE: HERTZ CORPORATION, Appellant. Commissioner of Labor, Respondent.

Decided: February 13, 2003

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and KANE, JJ. Akin, Gump, Strauss, Hauer & Feld, New York City (Jonathan L. Sulds of counsel), for appellant. Eliot Spitzer, Attorney General, New York City (Steven Segall of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 25, 2001, which assessed Hertz Corporation for additional unemployment insurance contributions.

In Matter of Eisner (Hertz Corp.-Commissioner of Labor), 252 A.D.2d 847, 675 N.Y.S.2d 700, appeal dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229 (hereinafter Eisner ), this Court concluded that substantial evidence supported a determination of the Unemployment Insurance Appeal Board finding the claimant, a sales representative who distributed travel brochures to travel agencies pursuant to a “Special Travel Agency Representative Service” (hereinafter STARS) agreement, and those similarly situated, to be an employee of the Hertz Corporation (hereinafter the employer) rather than an independent contractor.   After this decision, a hearing was conducted at the employer's request to challenge the additional assessed contributions relating to the other similarly situated sales representatives.   An Administrative Law Judge ruled that petitioner owed approximately $23,400 in additional contributions for the period January 1, 1994 through March 31, 1997 as assessed by the Department of Labor.   On administrative appeal, the Board affirmed.   The employer appeals.

 It was established through the testimony of the tax auditor employed by the Department of Labor that those individuals involved in the audit were employed in a similar capacity as the claimant in Eisner (i.e., as sales representatives pursuant to similar STARS agreements) such that the employer should be assessed additional contributions for them (see Labor Law § 620 [1] [b];  see also Matter of Braunstein [Dinaire Corp.-Commissioner of Labor], 250 A.D.2d 899, 900, 672 N.Y.S.2d 522;  Matter of Bramson Entertainment Bur. [Roberts], 136 A.D.2d 807, 523 N.Y.S.2d 641;  Matter of Eastern Suffolk School of Music [Roberts], 91 A.D.2d 1123, 458 N.Y.S.2d 327, lv. denied 60 N.Y.2d 554, 467 N.Y.S.2d 1029, 454 N.E.2d 1318).   The employer offered no evidence to contradict the auditor's testimony that these individuals were STARS representatives who signed substantially identical contracts as that of the Eisner claimant or that the final figure was otherwise flawed.   To the contrary, the employer's senior counsel for employee relations confirmed that all individuals on the audit list were STARS sales representatives who operated under the same agreement as that of the claimant in Eisner.   Under these circumstances, the record contains substantial evidence to support the Board's determination (see Matter of Bramson Entertainment Bur. [Roberts], supra ).

 As a final matter, it was not error for the Administrative Law Judge or the Board to treat this Court's decision in Eisner as final for the purpose of determining whether additional contributions were due.   The Court of Appeals' dismissal of the employer's appeal to that Court as nonfinal for its own jurisdictional purposes (see N.Y. Const, art VI, § 3[b][1];  see also CPLR 5601[a] ) did not render the underlying order (i.e., this Court's prior decision) without force or binding effect.   To the extent that the employer claims that it is entitled to “its just review” of the matter by the Court of Appeals, since two Justices of this Court dissented in Eisner, this is an argument that needs to be made to that Court.

The employer's remaining contentions have been reviewed and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE, SPAIN and KANE, JJ., concur.

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