In re King's Brass Ceremonial

• Decision Date: 01 July 2010
• Citation: 75 A.D.3d 712,904 N.Y.S.2d 543
• Parties: In the Matter of KING'S BRASS CEREMONIAL, Appellant. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 543
75 A.D.3d 712

In the Matter of KING'S BRASS CEREMONIAL, Appellant.
Commissioner of Labor, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 1, 2010.

904 N.Y.S.2d 544

Gallagher, Gosseen, Faller & Crowley, Garden City (Robert I. Gosseen of counsel), for appellant.

Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Before: PETERS, J.P., ROSE, MALONE JR., STEIN and GARRY, JJ.

75 A.D.3d 712

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 2, 2009, which assessed King's Brass Ceremonial for additional unemployment insurance contributions.

King's Brass Ceremonial is an entertainment company that provides professional musicians, mainly trumpeters, to play ceremonial brass music at various events, including weddings,

75 A.D.3d 713

parties and receptions. The president of the company is himself a trumpeter who plays at some of these events. King's Brass was assessed additional unemployment insurance contributions based upon remuneration paid to the trumpeters, among others. The Unemployment Insurance Appeal Board ruled that there was an employment relationship between King's Brass and the trumpeters, and it upheld the assessment of additional contributions with respect to such individuals. King's Brass appeals.

We affirm. The existence of an employment relationship is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence ( see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983]; Matter of DeSantis [Commissioner of Labor], 54 A.D.3d 1103, 1104, 864 N.Y.S.2d 196 [2008]; Matter of Franks [McClure-Commissioner of Labor], 255 A.D.2d 844, 845, 680 N.Y.S.2d 322 [2008] ). Where the services of professional musicians are involved, the pertinent inquiry is whether the purported employer

904 N.Y.S.2d 545

exercised control over important aspects of the work ( see Matter of Piano School of New York City [Commissioner of Labor], 71 A.D.3d 1358, 1359, 897 N.Y.S.2d 750 [2010]; Matter of DeSantis [Commissioner of Labor], 54 A.D.3d at 1104, 864 N.Y.S.2d 196; Matter of Brevis Music Inc. [Commissioner of Labor], 54 A.D.3d 1084, 1085, 863 N.Y.S.2d 526 [2008], lv. denied 11 N.Y.3d 712, 872 N.Y.S.2d 717, 901 N.E.2d 208 [2008] ).

Here, King's Brass arranged to have musicians, primarily trumpeters, appear for performances it contracted to provide to its...