Matter of Tekmitchov (Musika LLC)

Matter of Tekmitchov (Musika LLC) 2013 NY Slip Op 06915 Decided on October 24, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 24, 2013
516112 In the Matter of the Claim of

[*1]VARTHOLOME K. TEKMITCHOV, Respondent.

and

MUSIKA LLC, Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 18, 2013
Before: Rose, J.P., Lahtinen, Stein and McCarthy, JJ.


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.


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 NY2d 734, 736-737 [1983]; Matter of Faculty Tutoring Serv. [Sweeney], 244 AD2d 744, 744 [1997]; Matter of Rubin [Freelance Advantage-[*2]Sweeney], 236 AD2d 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.