SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
IN THE MATTER OF THE CLAIM OF FLOYD WILLIAMS, RESPONDENT. CLASSIC LOUNGE, APPELLANT; MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, dated July 20, 1966. Claimant is a musician and was the leader of a group of four musicians known as a combo. He was employed by appellant for about eight months. Appellant paid claimant one sum for the four musicians and made no withholdings. The personnel of the combo was discussed before hiring by appellant and claimant and when for any reason appellant was dissatisfied with one of the combo, claimant was informed and the person was replaced. The combo was hired to play rock and roll music and whenever they deviated from this, appellant directed claimant to play only rock and roll. The combo was also required to furnish music for talent night programs when, in effect, amateur performers auditioned for later appearances at appellant's cabaret. Claimant was initially denied unemployment insurance benefits on the ground he did not have sufficient weeks of covered employment. The Unemployment Insurance Appeal Board found that claimant was not an independent agent as claimed by appellant, but an employee and, therefore, he was entitled to credit for covered employment while employed by appellant. The record here contains substantial evidence to sustain the board's determination that claimant was subject to appellant's supervision, direction and control sufficient to negate the claim of independent contractor and to establish an employer-employee relationship.
Decision affirmed, with costs to respondent Williams.
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