In re the Claim of Wolf

Appellate Division of the Supreme Court of New York

In re the Claim of Wolf

178 A.D.2d 700, 577 N.Y.S.2d 164, 1991 N.Y. App. Div. LEXIS 16023

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 5, 1991

StatusPublished

Cited by2 cases

This text of 178 A.D.2d 700 (In re the Claim of Wolf) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Wolf, 178 A.D.2d 700, 577 N.Y.S.2d 164, 1991 N.Y. App. Div. LEXIS 16023 (N.Y. Ct. App. 1991).

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Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 14, 1990, which, inter alia, assessed Upstate [701]*701Music & Promotion, Inc. for additional unemployment insurance contributions.

There is substantial evidence in the record to support the conclusion by the Unemployment Insurance Appeal Board that the disc jockeys hired by Upstate Music & Promotion, Inc. were its employees and not independent contractors. Upstate provides its clients, generally bars and restaurants, with the disc jockeys. The customers pay Upstate directly and it then pays the disc jockeys. Either Upstate or the customer provides the equipment and Upstate also provides the records to the disc jockeys. If a disc jockey cannot keep an engagement, Upstate has a list of substitutes that either it or the disc jockey can call. Claimant was told when and where to appear and what type of music to play, and claimant distributed Upstate’s business cards to potential customers. The existence of an employer-employee relationship is an issue of fact for the Board to resolve (see, Matter of Cameryn Entertainment Co. [Hartnett], 174 AD2d 859). Despite other evidence in this record which could support a different result, the evidence presented provided sufficient indicia of control to support the Board’s conclusion of an employment relationship (see, Matter of Via Otto Ristorante [Hartnett] 158 AD2d 825; Matter of Captain Kishka [Hartnett] 158 AD2d 814, lv denied 76 NY2d 708). Upstate’s remaining contentions have been considered and rejected as being without merit.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Mercure, JJ., concur. Ordered that the decision is affirmed, without costs.

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— Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 14, 1990, which, inter alia, assessed Upstate [701]*701Music & Promotion, Inc. for additional unemployment insurance contributions.

There is substantial evidence in the record to support the conclusion by the Unemployment Insurance Appeal Board that the disc jockeys hired by Upstate Music & Promotion, Inc. were its employees and not independent contractors. Upstate provides its clients, generally bars and restaurants, with the disc jockeys. The customers pay Upstate directly and it then pays the disc jockeys. Either Upstate or the customer provides the equipment and Upstate also provides the records to the disc jockeys. If a disc jockey cannot keep an engagement, Upstate has a list of substitutes that either it or the disc jockey can call. Claimant was told when and where to appear and what type of music to play, and claimant distributed Upstate’s business cards to potential customers. The existence of an employer-employee relationship is an issue of fact for the Board to resolve (see, Matter of Cameryn Entertainment Co. [Hartnett], 174 AD2d 859). Despite other evidence in this record which could support a different result, the evidence presented provided sufficient indicia of control to support the Board’s conclusion of an employment relationship (see, Matter of Via Otto Ristorante [Hartnett] 158 AD2d 825; Matter of Captain Kishka [Hartnett] 158 AD2d 814, lv denied 76 NY2d 708). Upstate’s remaining contentions have been considered and rejected as being without merit.

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Mercure, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

178 A.D.2d 700, 577 N.Y.S.2d 164, 1991 N.Y. App. Div. LEXIS 16023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-wolf-nyappdiv-1991.

Opinion

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