                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517740
________________________________

In the Matter of the Claim of
   MARIA K. PHILIP,
                    Respondent.

JULES BRODY, Doing Business                 MEMORANDUM AND ORDER
   as STULL STULL & BRODY,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Stein, McCarthy, Rose and Egan Jr., JJ.

                             __________


      Graubard Miller, New York City (C. Daniel Chill of
counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Maria K. Philip,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed May 17, 2013, which, among other things, ruled that
Jules Brody was liable for additional unemployment insurance
contributions based on remuneration paid to claimant and others
similarly situated.

      Claimant was retained to perform document review services
for Jules Brody. She successfully applied for unemployment
insurance benefits in 2011, after which the Department of Labor
                              -2-                517740

determined that Brody was claimant's employer and was responsible
for additional unemployment insurance contributions. Brody
objected to that determination but, upon his failure to appear at
the ensuing hearing, was found to be in default. Brody then
sought to reopen the proceeding and further requested that the
Administrative Law Judge (hereinafter ALJ) subpoena claimant if
she did not voluntarily appear at the reopened hearing. Claimant
refused to appear, but the ALJ declined to issue the requested
subpoena. The ALJ then granted the application to reopen the
proceeding and upheld the initial determination. The
Unemployment Insurance Appeal Board affirmed, and Brody appeals.

      We reverse. Brody was entitled to call claimant as a
witness and, moreover, had the right to request that the ALJ
issue a subpoena to compel her attendance (see Labor Law § 622
[1]; 12 NYCRR 461.4 [c]; Matter of Mintzer [Sheft–Commissioner of
Labor], 256 AD2d 965, 966 [1998]). Claimant plainly had relevant
testimony to offer as to whether an employer-employee
relationship existed between her and Brody. The ALJ nevertheless
declined to issue the requested subpoena, pointing out that
counsel for Brody could have subpoenaed claimant directly. The
failure to either issue a subpoena or to adjourn the proceedings
so that counsel could do so constituted an abuse of discretion
under the circumstances of this case and, thus, "we believe that
the proper course is to reverse the Board's decision and remit
this matter for further proceedings" (Matter of Mintzer
[Sheft–Commissioner of Labor], 256 AD2d at 966; see Matter of
Moseley [Commissioner of Labor], 61 AD3d 1133, 1134 [2009];
Matter of Box [Commissioner of Labor], 249 AD2d 608, 608 [1998]).
In light of the foregoing, we need not address the remaining
arguments advanced by Brody.

      Peters, P.J., Stein, McCarthy, Rose and Egan Jr., JJ.,
concur.
                              -3-                  517740

      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
