Opinion
October 31, 1967
Appeal from a decision of the Unemployment Insurance Appeal Board finding that claimant was an employee within the meaning of the Unemployment Insurance Law (Labor Law, art. 18) and could file a valid original claim for benefits. Claimant answered a newspaper advertisement for a salesman starting at $200 per week. He went to an office in Hicksville, New York where Torginol of New York, Inc., a wholly owned subsidiary of Torginol of America, Inc., a California corporation and the appellant herein, has a plant and offices. Torginol manufactures and distributes a seamless, liquid plastic floor covering. Claimant was hired to obtain persons or businesses who would become franchised dealers of Torginol. He was assigned to work on the road with a senior man. Together they were to get names of prospective franchise dealers. Claimant attended weekly sales meetings at the Hicksville office. At that time he would submit a written report and he would be assigned to a senior man who would tell him where to go the following week. Claimant was supplied with business cards containing the Torginol name, his name and the title District Sales Manager, together with other promotional material. Claimant was billed for these supplies and paid his own expenses. He was to receive commissions when a prospect became a franchised dealer. Advances against commissions were allowed by Torginol and claimant received four of these totalling $720. These payments were made from California upon written verification that the District Sales Manager had worked the preceding week. Although claimant never earned any commissions no attempt has been made to gain repayment by Torginol. Claimant was discharged by the assistant marketing director to whom he had handed in reports and who had given him directions. Appellant contends that the board's determination is erroneous, that claimant was an independent contractor and that there is a lack of substantial evidence to sustain the board's conclusion. The case presents no more than a question of fact solely within the province of the board, and whose conclusion is supported by substantial evidence and must be affirmed. (See Matter of Electrolux Corp. [ Miller], 288 N.Y. 440; Matter of Kelly [ Catherwood], 28 A.D.2d 786.) Decision affirmed, with costs to respondent filing brief. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.