Opinion
December 24, 1997
Appeal from the Unemployment Insurance Appeal Board.
Faze 4 Orchestras, Ltd. was a booking agent which supplied musical entertainment for private functions. Toward that end, Faze 4 organized weekly showcases of bands for potential clients and arranged to hire the musicians chosen by the client for a particular performance. Faze 4 negotiated and contracted with the client, set the band's fee and instructed the band with respect to the date, time and place of the assignment. At each performance, a sign bearing the name of "Faze 4 Orchestras" was displayed before the band. Faze 4 paid the band or its individual members according to a negotiated fee out of the proceeds of the contractual sum received from the client. The Unemployment Insurance Appeal Board ruled that Faze 4 exercised sufficient direction and control over the musicians' work to establish their status as Faze 4's employees and sustained the initial determination assessing Faze 4 additional contributions for remuneration paid to the musicians.
The factual question of whether an employer-employee relationship exists is for the Board to resolve and its determination, if supported by substantial evidence, will not be disturbed, even where the record could support a contrary conclusion ( see, Matter of Cameryn Entertainment Co. [Hartnett], 174 A.D.2d 859). Recognizing that professional musicians are not subject to direct supervision or control ( see, Matter of Sims [Hudacs], 196 A.D.2d 912), we nonetheless find that the record here contains substantial evidence to support the Board's decision ( see, id.; Matter of Cameryn Entertainment Co. [Hartnett], supra; Matter of Captain Kishka [Hartnett], 158 A.D.2d 814, lv denied 76 N.Y.2d 708) and, accordingly, affirm.
Cardona, P.J., Mikoll, Crew III, Yesawich Jr. and Peters, JJ., concur.
Ordered that the decision is affirmed, without costs.