In re the Claim of Dineen — 50 N.Y.2d 964

Majority

p. 964

In the Matter of the Claim of John W. Dineen, Respondent. Eagan Real Estate, Inc., Respondent. Philip Ross, as Industrial Commissioner, Appellant.

Argued May 30, 1980;

decided June 24, 1980

p. 965

APPEARANCES OF COUNSEL

Robert Abrams, Attorney-General (Grace A. Brannigan and Paul S. Shemin of counsel), for appellant.

David W. Larrison and Robert A. Small for Eagan Real Estate, Inc., respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Unemployment Insurance Appeal Board should be reinstated.

There was substantial evidence to sustain the finding of the referee, affirmed by the Unemployment Insurance Appeal Board, that Dineen was an employee rather than an independent contractor. There was evidence that it was a matter of choice with the individual salesman (rather than the employer) whether he be treated as an "employee” or an "independent contractor”, and that the substantial differences in treatment after the choice was made were in tax and profit sharing consequences rather than in the amenability of the salesman to the employer’s direction.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.