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Matter of Kelly

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 1967
28 A.D.2d 786 (N.Y. App. Div. 1967)

Opinion

June 28, 1967


Appeal by the alleged employer from a decision of the Unemployment Insurance Appeal Board which found the appellant to be the employer of the claimant. The issue on this appeal is whether or not the record contains substantial evidence to support the finding that the appellant was the claimant's employer from May, 1962 to April, 1963. The board determined that Richards, the franchise dealer, was not an independent contractor, but an employee of the employer-appellant, and that the claimant, hired to assist him, was also its employee. (See Labor Law, § 560, subd. 2.) The evidence sustains the finding that the employer, the contract notwithstanding, retained the right to supervise, direct and control the activities of both Richards and the claimant; that wages were paid by the appellant and that payments were made by purchasers directly to it or they were transmitted by the claimant. From the record we are unable to say, as a matter of law, that the claimant was not an employee after such factual finding by the board. (See Matter of Electrolux Corp. [ Miller], 288 N.Y. 440, 443; Matter of Kaminski [ Catherwood], 14 A.D.2d 178; Matter of Alson Sanitronic Corp. [ Catherwood], 27 A.D.2d 624; cf. Matter of Smith [ Catherwood], 26 A.D.2d 459.) While not relied upon by the board in reaching its determination, it could be readily inferred that the 1962 reorganization, which in no way altered the status of the franchise dealer Richards, was motivated for the purpose of avoiding New York State Unemployment and Workmen's Compensation Laws, which practice is not encouraged in this State. (See Matter of Dunn [ Miller], 265 App. Div. 1027.) Decision affirmed, with costs to claimant-respondent. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Herlihy, J.


Summaries of

Matter of Kelly

Appellate Division of the Supreme Court of New York, Third Department
Jun 28, 1967
28 A.D.2d 786 (N.Y. App. Div. 1967)
Case details for

Matter of Kelly

Case Details

Full title:In the Matter of the Claim of BERNARD H. KELLY, Respondent. RICHARDS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 28, 1967

Citations

28 A.D.2d 786 (N.Y. App. Div. 1967)