In re Hollis Hills Jewish Center

— Appeal from that portion of a decision of the Unemployment Insurance Appeal Board, filed September 23, 1982, which assessed the employer for contributions due based on wages paid to teachers at a nursery school operated by Hollis Hills Jewish Center. The employer, a nonprofit religious organization, operates a nursery school for three- to five-year-old children. At issue in this case is whether the teachers who teach at this nursery school are covered by the State’s Unemployment Insurance Law (Labor Law, art 18).^[1] Following an audit covering the period January 1, 1978 through September 30, 1979, the commissioner determined that the employment of nursery school teachers by the employer was covered and assessed the employer for unemployment insurance contributions on those services. This determination was upheld by both the hearing officer and the board. Following an appeal by the employer from the board’s decision to this court, the case was reopened by the board sua sponte pursuant to section 534 of the Labor Law. A new hearing was conducted by the board at which the commissioner’s representative indicated that, despite the commissioner’s earlier position, she would not be adverse to a board finding that the teachers were not covered by the Unemployment Insurance Law. Despite this position, however, the board upheld the earlier assessment against the employer for contributions based on the services performed by the nursery school teachers. The employer has again appealed the board’s decision to this court where the commissioner has opted not to file a brief. We agree with the employer’s argument that its nursery school teachers are “person[s] employed at a place of religious worship * * * for the performance of duties of a religious nature” and that the services provided by those teachers are thus excluded from the definition of employment subject to coverage under the Unemployment Insurance Law (Labor Law, § 563, subd 2, par [c]). In so holding, we are not