| Matter of Piano School of N.Y. City (Commissioner ofLabor) |
| 2010 NY Slip Op 02461 [71 AD3d 1358] |
| March 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Piano School of New York City, 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 23,2008, which assessed Piano School of New York City for additional unemployment insurancecontributions.
The Piano School of New York City (hereinafter PSNYC) provides music programs forpiano instruction to public schools in New York City as well as to some private clients. PSNYCretains professional musicians to set up the programs and, after reviewing their qualifications,interviewing them and ascertaining their willingness to perform a specific assignment, assignsthem to work on particular projects. The Unemployment Insurance Appeal Board concluded thatthe musicians were employees of PSNYC and, consequently, assessed it additionalunemployment insurance contributions based upon remuneration paid to such individuals.PSNYC appeals and we affirm.
The existence of an employer-employee relationship is a factual question for the Board toresolve and its determination will be upheld if supported by substantial evidence (see Matterof Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of DeSantis [Commissioner ofLabor], 54 AD3d 1103, 1104 [2008]; Matter of Franks[McClure—Commissioner of Labor], 255 AD2d 844, 845 [1998]). Where, as here, theservices of professionals are involved, the pertinent inquiry in ascertaining the existence of anemployment relationship is whether the purported employer retains overall control of importantaspects of the services performed (see Matter of Concourse Ophthalmology Assoc.[Roberts], 60 NY2d at 736; Matter of DeSantis [Commissioner of Labor], 54 AD3dat 1104; Matter of Brevis Music Inc.[Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712[2008]).
The evidence adduced at the hearing reveals that PSNYC retained such control. Notably,PSNYC established the rate of pay the musicians would receive for each teaching session,required them to commit to teach for a specified period of time ending with a concert, providedguidelines for them to follow in creating a lesson plan, instructed the musicians to dress in aconservative fashion, had the musicians sign an agreement governing various aspects of theirassignment, held faculty meetings that the musicians were encouraged to attend and required themusicians to submit invoices detailing the hours worked in order to receive payment. Althoughthe musicians were permitted to hold outside jobs and take vacation, they were responsible forarranging for a substitute to teach for them if they were unavailable. In view of the foregoing,substantial evidence supports the Board's finding that the musicians were PSNYC's employees,notwithstanding the existence of evidence in the record that would support a contrary conclusion(see e.g. Matter of DeSantis [Commissioner of Labor], 54 AD3d at 1104-1105;Matter of Brevis Music, Inc. [Commissioner of Labor], 54 AD3d at 1085).
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the decision isaffirmed, without costs.