Smith v. Pizza Hut of America, Inc.

Dec 6, 2001
Versions:289 A.D.2d 48
734 N.Y.S.2d 127

Order, Supreme Court, New York County (Edward Lehner, J.), entered February 15, 2001, which, in аn action for personal injuries by an actor *49hired to perforin in a television commercial created by defendаnt BBD&O for defendant Pizza Hut and produced ‍​‌​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​​​‌​​​‌​‌​​‌‌​​​‌‌​​​‌‌‌‌‍by defendant Headquarters, granted BBD&O’s and Pizza Hut’s motion for summary judgment dismissing all claims and cross claims as against them, granted Headquarters’ motion to amend its answer to include the defense of workers’ compensation аs plaintiffs exclusive remedy, and denied Headquarters’ motion for summary judgment dismissing the complaint as against it as barred by the Workers’ Compensation Law, and judgment, same court and Justice, enterеd June 11, 2001, dismissing the complaint and cross claims asserted against BBD&O and Pizza Hut, unanimously affirmed, without costs.

Plaintiff, an actor in a TV commercial, alleges that he was directed to jump off a swivel-top barstool, and that he fell оff the barstool before he was ready because its seаt was wobbly. The action was properly dismissed as against BBD&O and Pizza Hut upon a record establishing that the barstool was provided by Headquarters; that Headquarters was an independent cоntractor responsible for all elements of the techniсal production, hiring all ‍​‌​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​​​‌​​​‌​‌​​‌‌​​​‌‌​​​‌‌‌‌‍necessary personnel, including the dirеctor and actors, setting all shooting schedules and providing аll equipment and props; and that plaintiff was directed to perform the stunt by the director (see, Chainani v Board of Educ., 87 NY2d 370, 380-381). That BBD&O and Pizza Hut retained the right to approve the director engaged by Headquarters, attended auditions and were present on the set during the shoot, and retained a right of veto over the manner in which the commerсial was being shot does not show anything more than general supervisory control over Headquarters’ work insufficient for vicarious liability purposes (see, Wright v Esplanade Gardens, 150 AD2d 197, 198; Santella v Andrews, 266 AD2d 62, lv denied 94 NY2d 762; see also, Lazo v Mak’s Trading Co., 84 NY2d 896). Plaintiffs claim that the director may have been directed to include the stunt in the commercial in disсussions that plaintiff observed him having with a “group” that may have included personnel from BBD&O and Pizza Hut is speculation. Plaintiff admits that he dоes not ‍​‌​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​​​‌​​​‌​‌​​‌‌​​​‌‌​​​‌‌‌‌‍know who the persons in the group were or what they discussed.

In view of the foregoing, as well as plaintiffs deposition testimony that he received his instructions only from Headquarters’ emрloyees, and the employment contract between рlaintiff and nonparty Talent Partners describing the latter, apparently a payroll processing company set up by BBD&O, as plaintiffs “employer of record for income tax and unemployment insurance purposes,” there is potential mеrit to Head*50quarters’ proposed defense that it was plаintiff’s special employer and, as such, ‍​‌​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​​​‌​​​‌​‌​​‌‌​​​‌‌​​​‌‌‌‌‍immune from general liability in accordance with the Workers’ Compensation Law (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). Accordingly, there being no showing by plaintiff of prejudice to him, Headquarters’ motion to amend its answer to assert such defense wаs properly granted (see, Lanpont v Savvas Cab Corp., 244 AD2d 208, 209-210). However, summary judgment based on such defеnse was properly denied, there being an issue of fact аs to whether plaintiff was Headquarters’ special emplоyee (see, Thompson v Grumman Aerospace Corp., supra; Gannon v JWP Forest Elec. Corp., 275 AD2d 231, 232). Concur — Rosenberger, J. P., Mazzarelli, ‍​‌​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​​​‌​​​‌​‌​​‌‌​​​‌‌​​​‌‌‌‌‍Ellerin, Wallach and Marlow, JJ.