IN RE: FAZE 4 ORCHESTRAS LTD.

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

IN RE: FAZE 4 ORCHESTRAS LTD., Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: December 24, 1997

Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and PETERS, JJ. Pearl & MacKenzie P.C. (Alan B. Pearl, of counsel), Syosset, for appellant.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 1, 1996, which assessed Faze 4 Orchestras Ltd. for additional unemployment insurance contributions based upon remuneration paid to musicians.

 Faze 4 Orchestras Ltd. was a booking agent which supplied musical entertainment for private functions.   Toward that end, Faze 4 organized weekly showcases of bands for potential clients and arranged to hire the musicians chosen by the client for a particular performance.   Faze 4 negotiated and contracted with the client, set the band's fee and instructed the band with respect to the date, time and place of the assignment.   At each performance, a sign bearing the name of “Faze 4 Orchestras” was displayed before the band.   Faze 4 paid the band or its individual members according to a negotiated fee out of the proceeds of the contractual sum received from the client.   The Unemployment Insurance Appeal Board ruled that Faze 4 exercised sufficient direction and control over the musicians' work to establish their status as Faze 4's employees and sustained the initial determination assessing Faze 4 additional contributions for remuneration paid to the musicians.

 The factual question of whether an employer-employee relationship exists is for the Board to resolve and its determination, if supported by substantial evidence, will not be disturbed, even where the record could support a contrary conclusion (see, Matter of Cameryn Entertainment Co. [Hartnett], 174 A.D.2d 859, 571 N.Y.S.2d 150).   Recognizing that professional musicians are not subject to direct supervision or control (see, Matter of Sims [Hudacs], 196 A.D.2d 912, 602 N.Y.S.2d 225), we nonetheless find that the record here contains substantial evidence to support the Board's decision (see, id.;  Matter of Cameryn Entertainment Co. [Hartnett], supra;  Matter of Captain Kishka [Hartnett], 158 A.D.2d 814, 551 N.Y.S.2d 631, lv. denied 76 N.Y.2d 708, 561 N.Y.S.2d 548, 562 N.E.2d 873) and, accordingly, affirm.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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