Opinion
Decided July 7, 1987
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Robert Abrams, Attorney-General (O. Peter Sherwood and Rochelle M. Baron of counsel), for appellant.
Jon C. Flinker and Richard A. Levin for Troy Publishing Company, Inc., respondent.
MEMORANDUM.
The Appellate Division order should be reversed, with costs, and the case remitted to that court with direction to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with Matter of Field Delivery Serv. (Roberts) ( 66 N.Y.2d 516) and this memorandum.
In Field Delivery this court held that: "absent an explanation by the agency, an administrative agency decision which, on essentially the same facts as underlaid a prior agency determination, reaches a conclusion contrary to the prior determination is arbitrary and capricious" (id., at 518 [emphasis added]). Here, the Board failed to distinguish or explain its departure from its prior determination in Matter of Di Martino (Buffalo Courier Express Co. — Ross) ( 59 N.Y.2d 638), a case in which the Board found an employer-employee relationship on essentially the same facts as presented by this case. Therefore, its determination is arbitrary and capricious and should have been annulled by the Appellate Division on appeal. The Appellate Division's after-the-fact rationalization of the Board's determination does not satisfy the requirements of Field Delivery.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the memorandum herein.