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In re the Claim of Priester

273 A.D.2d 654 Court N.Y. App. Div. Decision date 2000-06-22 English

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In the Matter of the Claim of Leon T. Priester, Respondent. City & Suburban Delivery Systems, Inc., Appellant; Commissioner of Labor, Respondent.
[711 NYS2d 361]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 4, 1999, which ruled that City & Suburban Delivery Systems, Inc. was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.

City & Suburban Delivery Systems, Inc. (hereinafter C & S), a distributor of newspapers and periodicals, challenges the decision of the Unemployment Insurance Appeal Board holding it liable for additional unemployment insurance contributions upon a finding that claimant and other similarly situated individuals are employees rather than independent contractors. We affirm. The record reveals that C & S utilized the services of persons known as “hawkers” to sell its newspapers and such persons were required to sign a written agreement designating each individual as an independent contractor. Despite this contract, the testimony demonstrates that these hawkers were not totally free from supervision. Their supervisor determined where, when and how many newspapers were

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to be distributed to each hawker. There was a call-in procedure for absenteeism and each of them had assigned shifts. Under these circumstances, substantial evidence supports the Board’s conclusion that C & S exercised sufficient overall control to establish an employer-employee relationship (see, Matter of Salamatian [Lasky Mem. & Dental Ctrs. — Commissioner of Labor], 263 AD2d 748 ; Matter of Rivera [AJA Envtl. Corp.— Commissioner of Labor], 262 AD2d 898 ). Contrary to C & S’ argument, “the fact that claimant signed an agreement identifying him as an ‘independent contractor’ does not mandate a contrary result” (Matter of Kienle [Hunter Eng’g Co. — Commissioner of Labor], 261 AD2d 769 ).

Cardona, P. J., Crew III, Carpinello, Graffeo and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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