New York Court of Appeals, 2004

In re Hertz Corporation

New York Court of Appeals · Decided March 30, 2004

2 N.Y. 733; 811 N.E.2d 5; 2 N.Y.3d 733; 778 N.Y.S.2d 743; 2004 N.Y. LEXIS 525

Cases that cite this one

36 later published cases cite this decision. The 25 that cite it most often are listed here.

Rose v. Northwestern Mutual Life Insurance Co. (District Court, E.D. New York 2016)
In re Fedex Ground Package System, Inc., Employment Practices Litigation (District Court, N.D. Indiana 2010)
Hart v. Rick's Cabaret International Inc. (District Court, S.D. New York 2013)
Matter of Greene (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2016)
Matter of Yoga Vida NYC, Inc. v. Commissioner of Labor (N.Y. 2016)
Browning v. Ceva Freight, LLC (District Court, E.D. New York 2012)
Doe v. Medeiros (District Court, D. Massachusetts 2017)
Marcus v. AXA Advisors, LLC (District Court, E.D. New York 2015)
Matter of Tuerk (Adelchi Inc.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2020)
Matter of Bogart (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2016)
Bongiovi v. Pulla (New York Supreme Court, Richmond County 2024)
Matter of Hawkins (A Place for Rover Inc.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2021)
Matter of Levick (Rosen Publ. Group Inc.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2021)
Matter of Jordan (Alterna Holdings Corp.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2020)
Matter of Courto (SCA Enters. Inc.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2018)
Matter of Cowan (Bimbo Foods Bakeries Distrib., Inc.--Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2018)
Matter of Vega (Commissioner of Labor) (Appellate Division of the Supreme Court of New York 2018)
Matter of Cohen (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2016)
Matter of Mitchell (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2016)
In re Eray Inc. (Appellate Division of the Supreme Court of New York 2016)
In re Eray Inc. (Appellate Division of the Supreme Court of New York 2016)
Matter of McAlevey (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2015)
Matter of Dwightmoore (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2015)
Matter of Mastroianni Bros., Inc. (Commr. of Labor) (Appellate Division of the Supreme Court of New York 2015)
In re the Claim of Chan (Appellate Division of the Supreme Court of New York 2015)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court with directions to remand to respondent for further proceedings in accordance with this memorandum.

Claimant was engaged by STARS (Special Travel Agency Representative Service Network), a marketing organization operated by Hertz Corporation. She visited travel agencies to *691promote Hertz’s products by distributing sales materials and making presentations. Within her assigned territory, claimant chose which agencies she would visit and when she would visit them, was compensated on a per-visit basis, was not required to attend meetings, had minimal supervision and was free to sell products that did not compete with Hertz. Her contract with Hertz identified her as an independent contractor, and Hertz reported her pay on a 1099 form.

Substantial evidence does not exist to support the Unemployment Insurance Appeal Board’s determination that claimant was a Hertz employee for purposes of receiving unemployment insurance benefits. An employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by claimant or the means used to achieve the results (Matter of 12 Cornelia St, 56 NY2d 895, 897 [1982]). Such evidence was lacking here. Incidental control over the results produced—without further evidence of control over the means employed to achieve the results—will not constitute substantial evidence of an employer-employee relationship (Matter of Ted Is Back Corp., 64 NY2d 725, 726 [1984]).

That Hertz gave claimant instruction on what to wear, what products to promote and how to make a presentation does not support the conclusion that claimant was an employee. “The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” (Matter of Werner, 210 AD2d 526, 528 [3d Dept 1994]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur in memorandum; Judge Graffeo taking no part.

Order reversed, etc.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.