| Matter of King's Brass Ceremonial (Commissioner of Labor) |
| 2010 NY Slip Op 05841 [75 AD3d 712] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of King's Brass Ceremonial, 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 September 2,2009, which assessed King's Brass Ceremonial for additional unemployment insurancecontributions.
King's Brass Ceremonial is an entertainment company that provides professional musicians,mainly trumpeters, to play ceremonial brass music at various events, including weddings, partiesand receptions. The president of the company is himself a trumpeter who plays at some of theseevents. King's Brass was assessed additional unemployment insurance contributions based uponremuneration paid to the trumpeters, among others. The Unemployment Insurance Appeal Boardruled that there was an employment relationship between King's Brass and the trumpeters, and itupheld the assessment of additional contributions with respect to such individuals. King's Brassappeals.
We affirm. The existence of an employment relationship is a factual issue for the Board toresolve and its decision will be upheld if supported by substantial evidence (see Matter ofConcourse 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 the servicesof professional musicians are involved, the pertinent inquiry is whether the purported employerexercised control over important aspects of the work (see Matter of Piano School of N.Y. City [Commissioner of Labor], 71AD3d 1358, 1359 [2010]; Matter of DeSantis [Commissioner [*2]of Labor], 54 AD3d at 1104; Matter of Brevis Music Inc.[Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712[2008]).
Here, King's Brass arranged to have musicians, primarily trumpeters, appear forperformances it contracted to provide to its clients for special events. It paid the musicians amutually agreed upon fee for each performance, typically lasting two hours, which came fromthe proceeds of the larger amount it charged to the client. It required the musicians to wearcertain clothing, usually tuxedos, and sometimes provided supplies and/or equipment, includingrequested music. Moreover, the president of King's Brass was occasionally present performing atthe events and was responsible for handling any customer complaints about the musicians.Notwithstanding the evidence presented that would support a contrary conclusion, the foregoingconstitutes substantial evidence of an employment relationship (see Matter of Piano Schoolof N.Y. City [Commissioner of Labor], 71 AD3d at 1359; Matter of Brevis Music Inc.[Commissioner of Labor], 54 AD3d at 1085). Therefore, we find no reason to disturb theBoard's decision.
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the decision isaffirmed, without costs.