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.

__________

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