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In re Claim of Tekmitchov

Supreme Court of New York, Third Department

October 24, 2013

In the Matter of the Claim of VARTHOLOME K. TEKMITCHOV, Respondent. and MUSIKA LLC, Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 18, 2013

Pepper Hamilton, LLP, New York City (Richard J. Reibstein of counsel), for appellant.

Cynthia Feathers, Glens Falls, for Vartholome K. Tekmitchov, respondent.

Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.

Before: Rose, J.P., Lahtinen, Stein and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 15, 2012, which ruled that Musika LLC was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.

Claimant offered guitar lessons for Musika LLC, a business that matches music teachers it deems qualified with students. Musika required its teachers to execute a contract that set the fee for lessons, prohibited them from competing with Musika or soliciting its students, and obliged teachers to perform any services "reasonably requested" by it. The teachers were required to report their work activities to Musika which, in turn, billed the students and paid the teachers by check. Moreover, teachers were expected to notify Musika if they were unavailable to work and could not use a substitute teacher without prior approval. Notwithstanding the proof in the record that could support a contrary result, the above constitutes substantial evidence for the determination of the Unemployment Insurance Appeal Board that claimant and those similarly situated were Musika's employees and not independent contractors (see Matter of Concourse Opthamology Assoc. [Roberts], 60 N.Y.2d 734, 736-737 [1983]; Matter of Faculty Tutoring Serv. [Sweeney], 244 A.D.2d 744, 744 [1997]; Matter of Rubin [Freelance Advantage- Sweeney], 236 A.D.2d 679, 680-681 [1997]).

As a final matter, we reject Musika's contention that the Board disregarded factually indistinguishable precedent in rendering its decision.

Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.


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