In re Singer

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 24, 1973, ruling claimant ineligible to receive benefits on the ground that he had no weeks of covered employment in his base period based on a finding that he was an independent contractor rather than an employee. The board has found that claimant, a licensed operator of a vending stand located in a government building and owned by the Commission for the Visually Handicapped, a Division of the New York State Department of Social Services, “functioned as an independent contractor and was not an employee of the Commission.” The question of the existence of an employment relationship is factual and thus, if the board’s decision is supported by substantial evidence, it must be accepted as final and conclusive (Matter of Electrolux Corp., 288 N. Y. 440; Matter of D. & E. Catering Co. [Catherwood], 33 A D 2d 1075; Matter of Guido .[Catherwood], 33 A D 2d 1062; Matter of Hawley [Catherwood]', 30 A D 2d 1002). There is no absolute rule in such eases and thus each case must be decided on balancing the particular relevant factors presented (Matter of Smith [Catherwood], 26 A D 2d 459). In the present case there are, at most, conflicting considerations as to claimant’s status. There is, however, substantial proof as to claimant’s control over the operation following his grant of the franchise. In fact, claimant’s franchise agreement with the commission specifically grants such control to the claimant subject only to minimal reservation by the commission. Thus, clearly substantial evidence exists to support the board’s decision. Decision affirmed, without costs. Staley, Jr., J. P., Greenblott, Cooke, Main and Reynolds, JJ., concur.