McCabe & Willig Realty, Inc. v. Ross

• Decision Date: 05 March 1981
• Citation: 437 N.Y.S.2d 770,80 A.D.2d 935
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of McCABE & WILLIG REALTY, INC., Appellant, v. Philip ROSS, as Industrial Commissioner, Respondent.

Page 770

437 N.Y.S.2d 770

80 A.D.2d 935

In the Matter of McCABE & WILLIG REALTY, INC., Appellant, v. Philip ROSS, as Industrial Commissioner, Respondent.

Supreme Court, Appellate Division, Third Department.

March 5, 1981.

Higgins, Roberts, Beyerl & Coan, Schenectady (William P. Willig, Schenectady, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Grace A. Brannigan, Asst. Atty. Gen., of counsel), for respondent.

DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany (John T. DeGraff, Jr. and Michael T. Wallender, Albany, of counsel), for New York State Ass'n of Realtors, Inc., amicus curiae.

Before MAHONEY, P. J., and MAIN, MIKOLL, YESAWICH and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 15, 1979, which reversed the decision of the Administrative Law Judge overruling the initial determination of the Industrial Commissioner and sustained the assessment of $3,499.28 due from the employer for the audit period from January 1, 1975 through March 31, 1978, on the monies paid to persons engaged by the employer as real estate sales associates.

The appellant corporation is engaged in the general real estate business in and around the City of Schenectady. It concedes that two or three of its staff are employees. However, during the period in issue it had, under contract, a number of salespersons who worked part-time for the most part, and it is these licensed sales associates' relationship with the employer that is the subject of our concern. The board found that the evidence presented established that appellant exercised sufficient control over the salespersons so as to constitute an employer-employee relationship. Though this finding was dispositive of the issue, if correct, the board, significantly, further found that article 12-A of the Real Property Law, which refers to real estate brokers and salesmen as employees, outlawed the common law relationship of independent contractor, a somewhat ancient notion which was laid to rest in Matter of Sullivan Co., 289 N.Y. 110, 44 N.E.2d 387. Any question concerning the permanency of its demise was answered, in part, by Hechter v. New York Life Ins. Co., 46 N.Y.2d 34, 39, 412 N.Y.S.2d 812, 385 N.E.2d 551 and finally erased when the Legislature enacted chapter 226 of the Laws of 1980 thus confirming and continuing the validity of Matter of Sullivan (supra), and changing the former references in the Real Property Law to the relationship of brokers and salespersons as one of employment to one of association. It is noteworthy that the Industrial Commissioner has abandoned this position on this appeal.

Thus, we turn to the question of whether the record provides substantial evidence to support the board's conclusion that the relationship established was that of employer and employee. It shows that the appellant furnishes limited office and desk space and telephone service. In most cases the salesperson works part-time and holds another full-time job. All are under a...