Link v. Cantor & Pecorella, Inc., 523326.

• Decision Date: 10 August 2017
• Docket Number: 523326.
• Citation: 59 N.Y.S.3d 857,153 A.D.3d 1061
• Parties: In the Matter of the Claim of James R. LINK, Respondent. Cantor & Pecorella, Inc., Appellant. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1061
59 N.Y.S.3d 857

In the Matter of the Claim of James R. LINK, Respondent.

Cantor & Pecorella, Inc., Appellant.

Commissioner of Labor, Respondent.

523326.

Supreme Court, Appellate Division, Third Department, New York.

Aug. 10, 2017.

59 N.Y.S.3d 858

Hodgson Russ LLP, Buffalo (James F. Swiatek of counsel), for appellant.

John Ferrara, Monticello, for James R. Link, respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE, CLARK and AARONS, JJ.

LYNCH, J.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed September 15, 2015, which ruled, among other things, that Cantor & Pecorella, Inc. was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Cantor & Pecorella, Inc. operates as a real estate broker, providing sales and rental services for property developers who specialize in multiple unit apartment buildings. Cantor engages individuals, such as claimant, as licensed sales agents to be present at the buildings and show apartments to potential buyers or renters and solicit offers. After claimant stopped working for Cantor, he applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board ruled that an employment relationship existed between claimant and Cantor entitling claimant to receive benefits. The Board also assessed Cantor for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Cantor appeals.

We affirm. Initially, inasmuch as the standard written agreement between claimant and Cantor did not permit claimant to work hours of his choosing and imposed limitations on claimant's outside employment that would be contrary to Cantor's "business interests," we reject Cantor's contention that no employment relationship existed here as a matter of law (see Labor Law § 511 [19 ][iii][v]; Matter of Feldstein [Feathered Nest–Commissioner of Labor], 253 A.D.2d 992, 993 n., 678 N.Y.S.2d 162 [1998] ). As to the Board's finding of an employment relationship, "[w]hether an employee-employer relationship exists is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in...