State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 19, 2015 520258
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In the Matter of the Claim of
CHRISTOPHER NORTH,
Respondent.
YOUNG PEOPLE'S CHORUS OF NEW
YORK, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: October 22, 2015
Before: Peters, P.J., Garry, Rose and Clark, JJ.
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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.
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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
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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 AD3d 1088, 1088 [2014], lv dismissed 24 NY3d 1039
[2014]; accord Matter of Klotz [Blue Perimeter, Inc.–Commissioner
of Labor], 127 AD3d 1459, 1460 [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 AD2d 844, 845 [1998]; Matter of Sybco Intl.
[Sweeney], 244 AD2d 614 [1997]; Matter of New York Philomusica
Chamber Ensemble [Hartnett], 165 AD2d 963 [1990]).
Garry, Rose and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court