Opinion
525835
03-14-2019
In the MATTER OF the Claim of Robert POLIMENI, Respondent. Gannett Co., Inc., Doing Business as Democrat & Chronicle, Appellant. v. Commissioner of Labor, Respondent.
Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of counsel) and The Zinser Law Firm, PC, Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant. Salvatore C. Adamao, Albany, for Robert Polimeni, respondent.
Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of counsel) and The Zinser Law Firm, PC, Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant.
Salvatore C. Adamao, Albany, for Robert Polimeni, respondent.
Before: Garry, P.J., Egan Jr., Lynch, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 11, 2017, which ruled that Gannett Co., Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Claimant contracted with Gannett Co., Inc. to provide residential delivery services for newspapers and other written publications. Following the termination of his contract, claimant applied for unemployment insurance benefits. The Department of Labor determined that claimant was an employee of Gannett Co. entitled to such benefits and that Gannett Co. was liable for additional contributions based upon remuneration paid to claimant and others similarly situated. Following a hearing, an Administrative Law Judge sustained the Department's determination, and the Unemployment Insurance Appeal Board affirmed. Gannett Co. appeals.
We affirm. Upon our review of the record, we find that the indicia of control retained by Gannett Co. in the contracts with claimant and others similarly situated are nearly identical to the relevant factors identified to establish an employment relationship in Matter of Armison (Gannett Co., Inc.-Commissioner of Labor), 122 A.D.3d 1101, 1102, 995 N.Y.S.2d 856 (2014), lv dismissed 24 N.Y.3d 1209, 4 N.Y.S.3d 590, 28 N.E.3d 24 (2015) and Matter of Hunter (Gannett Co., Inc.-Commissioner of Labor), 125 A.D.3d 1166, 1167, 3 N.Y.S.3d 195 (2015). As such, we find that substantial evidence supports the Board's decisions, and they will not be disturbed (see Matter of Nicholas [Commissioner of Labor], 167 A.D.3d 1180, 1180, 87 N.Y.S.3d 919 [2018] ; Matter of Smith [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 166 A.D.3d 1251, 1252, 85 N.Y.S.3d 796 [2018] ; Matter of Moravcik [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 132 A.D.3d 1044, 1045, 17 N.Y.S.3d 331 [2015] ). We have reviewed the remaining contentions raised by Gannett Co. and find them to be unpersuasive.
As the Board noted, this claim preceded the enactment of Labor Law § 511(23) (as added by L 2016, ch 503, § 1 [Nov. 28, 2016] ) and, thus, this provision does not apply here.
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Garry, P.J., Egan Jr., Lynch, Clark and Mulvey, JJ., concur.
ORDERED that the decisions are affirmed, without costs.