MNORX, Inc. v. Ross

• Decision Date: 22 March 1979
• Citation: 46 N.Y.2d 985,389 N.E.2d 823,416 N.Y.S.2d 228
• Parties: , 389 N.E.2d 823 In the Matter of MNORX, INC., et al., Appellants, v. Phillip ROSS, as Industrial Commissioner, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 228

416 N.Y.S.2d 228

46 N.Y.2d 985, 389 N.E.2d 823

In the Matter of MNORX, INC., et al., Appellants, v. Phillip ROSS, as Industrial Commissioner, Respondent.

Court of Appeals of New York.

March 22, 1979.

Richard B. Thaler, Ithaca, for appellants

Robert Abrams, Atty. Gen. (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester, Asst. Attys. Gen., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

On the record as a whole there exists substantial evidence to support the findings of the Unemployment Insurance Appeal Board. True, the evidence is in conflict: the contracts executed by the parties constitute proof of the existence of employment relationships, while the testimony of the witnesses indicates that no such relationships were contemplated. But the board was free to choose between these alternative factual versions (State Div. of Human Rights v. Columbia Univ. in City of N. Y., 39 N.Y.2d 612, 616, 385 N.Y.S.2d 19, 21, 350 N.E.2d 396, 397; Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247, 252) and, since the evidence reasonably supports the board's choice, we may not interpose our judgment to reach a contrary conclusion (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 56, 379 N.E.2d 1183, 1185). Indeed, the execution by appellants of the various contracts containing language evincing employment status, being inconsistent with their positions at the hearing, constituted admissions, not only for the purpose of discrediting their contentions but also as evidence of the facts admitted (see Richardson, Evidence (10th ed. Prince), §§ 209, 210; 4 Wigmore, Evidence (3d Ed.), § 1048, pp. 5-6).

JONES, Judge (dissenting).

I cannot concur in the determination reached by the majority that there is in this record substantial evidence to support the determination by the Unemployment Insurance Board that the musicians, payment to whom served as the basis for the disputed assessments, were employees of appellants. Recognizing, as I do, that an appellate court may upset a determination by the appeal board only if it may be said, as a matter of law, that a contrary determination is required by the record (Matter of Sierant (Catherwood-Gen. Mills), 24 N.Y.2d 675, 679, 301 N.Y.S.2d 604, 607, 249 N.E.2d 455, 456), examination of the record here convinces me that this is just such a case.

The evidence adduced at the hearing before the unemployment insurance referee, on which the board's decision must be predicated, admits of only one conclusion that no employment relationship existed between the establishments on which assessments have been imposed by the Industrial Commissioner and the individual musicians in question.

It is not disputed that the finding of an employer-employee relationship between appellants and the union musicians engaged by them under the American Federation of Musicians' Form B contract was based solely on the provision in the contract that purports to vest in the owner of the facility "complete supervision, direction and control" over the services of the musicians so engaged. The uncontradicted proof however from owners, musicians and a musicians' booking agent alike was that the right of such supervision was not in fact retained by the owners. On the contrary the testimony was that they exercised no control whatsoever over the details of the musicians' performances, did not select the music to be performed, did not prescribe the dress of the performers, did not provide musical instruments, did not define the number or length of time-outs taken during a performance, did not determine or even know who the individual members of a musical group would be and likewise did not even determine the number of musicians who would be present at a performance. Additionally, no income taxes were withheld by the owners from moneys paid to the groups who performed under Form B contracts, no W-2 forms were issued, no worker's compensation coverage was provided and no Social Security taxes were collected with respect to the musicians. In short, none of the indicia or characteristics of an employer-employee relationship existed.

Not only was the evidence uncontroverted that the owners did not in fact exercise or retain any form or control over union musicians who played on their premises under the union contracts; there was more. It is the additional proof in this case which in my analysis is determinative, for I recognize that a finding of employer-employee relationship...