SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
January 13, 1969
IN THE MATTER OF CORAL INN, INC., APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal from a decision of the Unemployment Insurance Appeal Board which sustained an assessment of additional contributions for the period January 1, 1960 -- December 31, 1963.
Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.
Author: Per Curiam
The appellant, the operator of a restaurant, upon booking music for the entertainment of its patrons, in each instance executed the familiar Form B contract, prepared by the musicians' union, which designated appellant, the purchaser of the music, as the employer of the musicians and provided that such employer "shall at all times have complete control over the services of employees under this contract." Appellant resisted the assessments and predicates this appeal upon its contention that the Form B contract is fictional, at least insofar as it assumes to fix the employment status of the musicians; but we cannot, upon this record, disturb the board's determination that: "The proof submitted indicates that the employer not only had the contractual right of control but did in fact exercise control." (Matter of Basin St. [ Lubin ], 6 N.Y.2d 276; Matter of Slovack [ Les & Larry Elgart Orchestra-Catherwood ], 28 A.D.2d 1185; Matter of Geuvara [ Hotel Syracuse-Catherwood ], 17 A.D.2d 876; Matter of Restani [ Catherwood ], 11 A.D.2d 612.)
Decision affirmed, with costs to respondent.
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