Opinion
June 18, 1992
Appeal from the Unemployment Insurance Appeal Board.
We find that substantial evidence exists to support the conclusion that American Management Association (hereinafter AMA), a not-for-profit organization which provides educational and training seminars to individuals and businesses, exercised such supervision, direction and control over claimant, a regional representative, to justify the conclusion that he was an employee rather than an independent contractor (see, Matter of Engel [Calgon Corp. — Roberts], 117 A.D.2d 840, lv denied 69 N.Y.2d 601; Matter of Cohen [Blinder, Robinson Co. — Roberts], 112 A.D.2d 687, affd 67 N.Y.2d 683; Matter of Rawdin [College Town Sportswear — Ross], 58 A.D.2d 714). This is true even though evidence in the record exists to support a contrary conclusion (see, Matter of CDK Delivery Serv. [Hartnett], 151 A.D.2d 932, 933). The record reveals that AMA determined the geographic territory within which claimant was allowed to sell its services, and claimant was prohibited from representing any other person or organization engaged in a similar business. In addition, claimant received training from AMA and was provided with leads from AMA. Claimant was also required to file sales reports and AMA had to approve all sales. While claimant's salary was strictly by commission, he was allowed to draw against future commissions and his business and marketing expenses were reimbursed. Finally, the fact that claimant's contract stated that he was an independent contractor is not determinative (see, Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 A.D.2d 220, 221-222).
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the decision is affirmed, without costs.