Opinion
December 5, 1991
Appeal from the Unemployment Insurance Appeal Board.
There is substantial evidence in the record to support the conclusion by the Unemployment Insurance Appeal Board that the disc jockeys hired by Upstate Music Promotion, Inc. were its employees and not independent contractors. Upstate provides its clients, generally bars and restaurants, with the disc jockeys. The customers pay Upstate directly and it then pays the disc jockeys. Either Upstate or the customer provides the equipment and Upstate also provides the records to the disc jockeys. If a disc jockey cannot keep an engagement, Upstate has a list of substitutes that either it or the disc jockey can call. Claimant was told when and where to appear and what type of music to play, and claimant distributed Upstate's business cards to potential customers. The existence of an employer-employee relationship is an issue of fact for the Board to resolve (see, Matter of Cameryn Entertainment Co. [Hartnett], 174 A.D.2d 859). Despite other evidence in this record which could support a different result, the evidence presented provided sufficient indicia of control to support the Board's conclusion of an employment relationship (see, Matter of Via Otto Ristorante [Hartnett], 158 A.D.2d 825; Matter of Captain Kishka [Hartnett], 158 A.D.2d 814, lv denied 76 N.Y.2d 708). Upstate's remaining contentions have been considered and rejected as being without merit.
Weiss, J.P., Mikoll, Yesawich Jr., Levine and Mercure, JJ., concur. Ordered that the decision is affirmed, without costs.