Opinion
September 25, 1975
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 23, 1974, which assessed appellant additional contributions as amounts due for the audit periods beginning January 1, 1970 and ending September 30, 1972. The board has found that musicians who performed services for the appellant pursuant to the terms of the standard "Form B" contract of the American Federation of Musicians were employees of the appellant. The clear language of the "Form B" contract constitutes the purchaser of the music as the employer of the band (Matter of Basin Street [Lubin], 6 N.Y.2d 276), and this provision is controlling unless there is "overwhelmingly clear" evidence that the contract provision reserving complete control to the purchaser was fiction (Matter of Savoy Ballroom Corp. [Lubin], 286 App. Div. 684, 691). Whether such a provision is a fiction in a given case is a factual issue and thus for the board's determination if supported by substantial evidence (e.g. Matter of Pietrzak [Catherwood], 34 A.D.2d 864; Matter of Coral Inn [Catherwood], 31 A.D.2d 771). The mere fact that the control given is not exercised is not alone dispositive (Matter of Pietrzak [Catherwood], supra), especially in the absence of proof that the exercise of such control was necessary (Matter of American Legion, Troop 1, Post No. 665 [Catherwood], 10 A.D.2d 400, 402-403). On the instant record, we cannot say, as a matter of law, that the board could not properly find that the appellant was an employer and subject to contributions. Decision affirmed, with costs. Greenblott, J.P., Kane, Main, Larkin and Reynolds, JJ., concur.