Gannett Co. v. Comm'r of Labor (In re Polimeni)

4 Citing cases

  1. Hearst Corp. v. Commissioner Labor (In re Hennessy)

    172 A.D.3d 1842 (N.Y. App. Div. 2019)   Cited 2 times

    Contrary to Hearst's claim, there is no indication that the Board ignored the Department of Labor's guidelines in making its decision (seeMatter of Rosenfelder [Community First Holdings, Inc.-Commissioner of Labor], 137 A.D.3d at 1440, 28 N.Y.S.3d 137 ). Furthermore, although the Board acknowledged the recent amendment to Labor Law § 511(23) excluding newspaper delivery carriers from unemployment insurance coverage, the claim at issue preceded this amendment and it is, therefore, not applicable (seeMatter of Polimeni [Gannett Co., Inc.-Commissioner of Labor], 170 A.D.3d 1346, 1347 n., 94 N.Y.S.3d 462 [2019] ). We have considered Hearst's remaining arguments and find them to be unavailing.

  2. In re Clifford

    2019 N.Y. Slip Op. 8898 (N.Y. App. Div. 2019)

    Finally, one of the two agreements signed by claimant reflects that he elected to purchase a tablet from Gannett — with the purchase price paid via weekly deductions from the moneys owed to claimant for his delivery services. Under these circumstances, and consistent with our holdings in similar matters, we find that the Board's decision is supported by substantial evidence (see Matter of Polimeni [Gannett Co., Inc.-Commissioner of Labor], 170 AD3d 1346, 1346-1347 [2019]; Matter of Smith [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 166 AD3d at 1252; Matter of Moravcik [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 132 AD3d 1044, 1045 [2015]; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 AD3d 1166, 1167 [2015]; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 AD3d 1101, 1102-1103 [2014], lv dismissed 24 NY3d 1209 [2015]). Claimant's remaining arguments, including his assertion that the Board either ignored or misapplied certain Department of Labor guidelines in rendering its determination, have been examined and found to be lacking in merit.

  3. Gannett Satellite Info. Network, Inc. v. Comm'r of Labor (In re Clifford)

    178 A.D.3d 1213 (N.Y. App. Div. 2019)

    Finally, one of the two agreements signed by claimant reflects that he elected to purchase a tablet from Gannett – with the purchase price paid via weekly deductions from the moneys owed to claimant for his delivery services. Under these circumstances, and consistent with our holdings in similar matters, we find that the Board's decision is supported by substantial evidence (seeMatter of Polimeni [Gannett Co., Inc.-Commissioner of Labor] , 170 A.D.3d 1346, 1346–1347, 94 N.Y.S.3d 462 [2019] ; Matter of Smith [Gannett Satellite Info. Network, Inc.-Commissioner of Labor] , 166 A.D.3d at 1252, 85 N.Y.S.3d 796 ; Matter of Moravcik [Gannett Satellite Info. Network, Inc.-Commissioner of Labor] , 132 A.D.3d 1044, 1045, 17 N.Y.S.3d 331 [2015] ; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor] , 125 A.D.3d 1166, 1167, 3 N.Y.S.3d 195 [2015] ; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor] , 122 A.D.3d 1101, 1102–1103, 995 N.Y.S.2d 856 [2014], lv dismissed 24 N.Y.3d 1209, 4 N.Y.S.3d 590, 28 N.E.3d 24 [2015] ). Claimant's remaining arguments, including his assertion that the Board either ignored or misapplied certain Department of Labor guidelines in rendering its determination, have been examined and found to be lacking in merit.

  4. In re Claim of DiFalco

    177 A.D.3d 1043 (N.Y. App. Div. 2019)

    "Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" ( Matter of Fecca [Herald Publ. Co.-Commissioner of Labor] , 171 A.D.3d 1423, 1424, 99 N.Y.S.3d 110 [2019] [internal quotation marks and citation omitted] ). Upon review of the record and hearing testimony, we find that the indicators of control retained and exercised by Gannett in its contract and dealings with claimant are not materially distinguishable from those previously found to have established an employer-employee relationship between newspaper publishers and delivery workers (seeMatter of Polimeni [Gannett Co., Inc. -Commissioner of Labor] , 170 A.D.3d 1346, 1346–1347, 94 N.Y.S.3d 462 [2019] ; Matter of Nicholas [Gannett Satellite Info. Network, Inc.-Commissioner of Labor] , 167 A.D.3d 1180, 1181, 87 N.Y.S.3d 919 [2018] ; see alsoMatter of Kriplin [Community Newspaper Group LLC–Commissioner of Labor] , 173 A.D.3d 1571, 1572, 102 N.Y.S.3d 811 [2019] ; Matter of Fecca [Herald Publ. Co.-Commissioner of Labor] , 171 A.D.3d at 1425–1426, 99 N.Y.S.3d 110 ; Matter of Lucas [Community First Holdings, Inc.-Commissioner of Labor] , 170 A.D.3d 1384, 1385, 96 N.Y.S.3d 718 [2019] ; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor] , 122 A.D.3d 1101, 1102–1103, 995 N.Y.S.2d 856 [2014], lv dismissed 24 N.Y.3d 1209, 4 N.Y.S.3d 590, 28 N.E.3d 24 [2015] ). Although Gannett "points out numerous factors that would support a finding that claimant was an independent contractor, we find, consistent with our holdings in similar appeals, that the record contains substantial evidence to support the Board's finding of an employment relationship, precluding further judicial review"