Irish Intern. Airlines v. Levine

• Decision Date: 05 June 1975
• Citation: 369 N.Y.S.2d 24,48 A.D.2d 202
• Parties: In the Matter of IRISH INTERNATIONAL AIRLINES, Appellant, v. Louis L. LEVINE, as Industrial Commissioner, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 24

369 N.Y.S.2d 24

48 A.D.2d 202

In the Matter of IRISH INTERNATIONAL AIRLINES, Appellant, v. Louis L. LEVINE, as Industrial Commissioner, Respondent.

Supreme Court, Appellate Division, Third Department.

June 5, 1975.

Smith, Steibel & Alexander, New York City (Michael Alexander, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester, New York City, of counsel), for respondent, Dept. of Law, Employment Security Bureau.

Before GREENBLOTT, J.P., and SWEENEY, KANE, MAIN and LARKIN, JJ.

SWEENEY, Justice.

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed February 8, 1974, which held that appellant is an employer liable for unemployment insurance contributions under article 18 of the Labor Law, effective February 19, 1971.

Appellant is and at all times has been a wholly owned instrumentality of the government of Ireland. Prior to 1965, it made contributions to the New York State Unemployment Insurance Fund. In that year, respondent, on his own initiative, determined that, because it was an instrumentality of a foreign government, appellant was exempt from the Unemployment Insurance Law. In all subsequent cases this determination was consistently reaffirmed in individual rulings by the Referees, pursuant to subdivision 4 of section 560 of the Labor Law. Appellant requested and was refused permission to participate on a voluntary basis in the State's unemployment insurance program. It then established its own program of unemployment insurance for its employees. In 1971, respondent, again on its own initiative, withdrew the exemption and determined that appellant was a covered employer and, therefore, liable for contributions, retroactive to January 1, 1969. After a requested hearing and appeal, this ruling was affirmed by the Appeal Board with a modification to the extent that appellant's contributions were not to be effective until February 19, 1971, the day following the last Referee's decision holding appellant exempt. This appeal ensued.

Appellant urges three grounds for reversal. It contends that the board's 1965 decision is Res judicata; that the instant determination is arbitrary and capricious; and, finally, that the decision violated sections 620 through 626 of the Labor Law. Respondent, on the other hand, contends that the 1965 determination was erroneous as a matter of law and respondent had the right and the obligation to correct it.

The facts, circumstances and law pertaining to this controversy were the same in 1965 as they were in 1971 when respondent reversed the prior determination. Initially, the Industrial Commissioner concluded appellant was wholly owned by the government of Ireland and, therefore, exempt from the Unemployment Insurance Law (Labor Law, art. 18). Subsequently, however,...