| Matter of DeSantis (Commissioner of Labor) |
| 2008 NY Slip Op 06901 [54 AD3d 1103] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Maria DeSantis, Doing Business as Mario DeSantisBand & Orchestra, Appellant. Commissioner of Labor, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forrespondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 5,2006, which assessed Maria DeSantis for additional unemployment insurance contributions.
Maria DeSantis has a band which she operates as a business. She contracts with clients tohave the band perform at various events, such as weddings and graduations, and retainsmusicians to play in the band, which she selects from a pool of 40 to 70 individuals dependingupon the type of engagement. The band can vary in size from 3 to 16 members. DeSantis meetswith clients to ascertain the musical selection, attire to be worn by the musicians as well as thelogistics, such as the duration of the performance and the length of breaks, and thencommunicates these details to the band members. In addition, DeSantis negotiates the fee for theband's services, including any overtime, and pays the members by check after each performance.As the result of an audit, the Unemployment Insurance Appeal Board assessed DeSantis foradditional unemployment insurance contributions based upon remuneration paid to the bandmembers whom it found were DeSantis's employees.
Although DeSantis maintains that the subject band members are independent contractors, theexistence of an employment relationship is a factual issue for the Board to resolve and itsdetermination in this regard will not be disturbed so long as it is supported by substantialevidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,[*2]736 [1983]). Given that professional musicians do not easilylend themselves to direct supervision or control (see e.g. Matter of Cameryn EntertainmentCo. [Hartnett], 174 AD2d 859, 860 [1991]; Matter of Captain Kishka [Hartnett], 158AD2d 814, 815 [1990], lv denied 76 NY2d 708 [1990]), the relevant inquiry is whetherthe purported employer exercises control over important aspects of their work (see Matter ofConcourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736; Matter of Singh [Thomas A. Sirianni,Inc.—Commissioner of Labor], 43 AD3d 498, 499 [2007]). In the case at hand,DeSantis was closely involved in many aspects of the band members' work, including selectingwhich musicians were appropriate for different assignments, communicating client preferenceswith respect to musical selections, attire and break times, and negotiating the fee to be paid forthe band's services. Significantly, DeSantis made it a point to be present at the band'sengagements and acted as a music coordinator. In view of this and other proof, substantialevidence supports the Board's finding of an employment relationship, notwithstanding thepresence of evidence in the record that might suggest otherwise (see Matter of Franks[McClure—Commissioner of Labor], 255 AD2d 844, 845 [1998]; Matter of Faze 4Orchestras [Sweeney], 245 AD2d 929 [1997]; see also Matter of Sims [Hudacs], 196AD2d 912 [1993]). Accordingly, we decline to disturb the Board's decision.
Cardona, P.J., Peters, Carpinello, Lahtinen and Malone Jr., JJ., concur. Ordered that thedecision is affirmed, without costs.