Opinion
520258
11-19-2015
In the Matter of the Claim of Christopher NORTH, Respondent. Young People's Chorus Of New York, Appellant. Commissioner of Labor, Respondent.
Locke Lord, LLP, New York City (David R. Marshall of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.
Locke Lord, LLP, New York City (David R. Marshall of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.
Opinion
PETERS, P.J.
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed February 27, 2014, which ruled that Young People's Chorus of New York is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Young People's Chorus of New York (hereinafter YPCNY) presents concerts performed by a children's chorus at various venues. YPCNY engages musicians to play the accompanying music, and claimant played the bass during concerts held between April 2003 and December 2008. Claimant thereafter applied for unemployment insurance benefits and the Department of Labor determined that claimant was an employee of YPCNY and that YPCNY was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. YPCNY objected on the ground that claimant was an independent contractor and, following a hearing, the Administrative Law Judge sustained the initial determination. The Unemployment Insurance Appeal Board affirmed and YPCNY now appeals.
We affirm. “The existence of an employer-employee relationship is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” (Matter of Ruano [Legal Interpreting Servs., Inc.-Commissioner of Labor], 118 A.D.3d 1088, 1088, 987 N.Y.S.2d 491 2014, lv. dismissed 24 N.Y.3d 1039, 998 N.Y.S.2d 163, 22 N.E.3d 1031 2014; accord Matter of Klotz [Blue Perimeter, Inc.-Commissioner of Labor], 127 A.D.3d 1459, 1460, 7 N.Y.S.3d 674 2015 ). Here, YPCNY provided claimant with the date, time and place for the concerts, the rehearsal times and the music to be performed. Claimant was paid a set rate of between $250 and $600 per concert and YPCNY paid his travel expenses. YPCNY would inform claimant of the required dress code for the concerts and claimant was required to inform YPCNY if he was going to be late or absent. YPCNY's president was the musical conductor at the concerts and was responsible for handling complaints about the musicians. While there is other evidence in the record that would support a different result, the foregoing constitutes substantial evidence supporting the Board's decision that YPCNY exercised sufficient control over the services provided by the musicians to establish an employment relationship (see Matter of Franks [McClure–Commissioner of Labor], 255 A.D.2d 844, 845, 680 N.Y.S.2d 322 1998; Matter of Sybco Intl. [Sweeney], 244 A.D.2d 614, 663 N.Y.S.2d 932 1997; Matter of New York Philomusica Chamber Ensemble [Hartnett], 165 A.D.2d 963, 561 N.Y.S.2d 850 1990 ).
ORDERED that the decisions are affirmed, without costs.
GARRY, ROSE and CLARK, JJ., concur.