In Weiner v. Cataldo, Waters & Griffith Architects, P.C., 200 AD2d 942, 943, 607 N.Y.S.2d 163 [3d Dept 1994]), the Appellate Division, Third Department upheld the Supreme Court's denial of summary judgment on a claim for FICA taxes that plaintiff alleges he was required to pay as a result of defendant's failure to do so.
The Court reasoned that "Regardless of the agreement between plaintiff and defendant, if sufficient indicia of control existed . . . plaintiff was an 'employee' for Federal tax withholding purposes . . . and defendant was liable for the employer's share of FICA taxes."