Opinion
April 25, 1985
Appeal from the Unemployment Insurance Appeal Board.
Though this claim involves a vigorously contested question as to whether the status of claimant was that of an employee or an independent contractor, we do not reach that issue. The record reveals, and all parties concede, that a scheduled hearing was properly adjourned and all parties and their representatives were so advised. Nevertheless, claimant appeared on the originally fixed date and was permitted to testify. When National Freelancers, Inc. (hereinafter National) became aware of this fact, it moved to strike claimant's testimony or, in the alternative, to be provided with an opportunity to cross-examine claimant. The motion was denied in its entirety, the hearings were continued and a decision rendered by the administrative law judge was adopted by the Unemployment Insurance Appeal Board. National appeals.
National and its attorney were entitled to notice in writing of any proceeding pending before an administrative law judge ( 12 NYCRR 461.3 [b]). Moreover, all parties and their attorney or agent shall have the right to call, examine and cross-examine parties and witnesses ( 12 NYCRR 461.4 [c]). At bar, these fundamental rights were concededly denied to National and reversal is thus required ( see, Matter of Mangiarciana ( P.T.S.A., Inc. — Roberts], 89 A.D.2d 639).
Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P.J., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.