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METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED SHE WAS AN EMPLOYEE AND THE WORKERS’ COMPENSATION LAW WAS HER ONLY REMEDY.

The First Department, in a full-fledged opinion by Justice Acosta, determined the defendant Metropolitan Opera’s motion to dismiss the complaint was properly denied. Plaintiff is a singer who has performed with the Met for over twenty years as a featured soloist. Plaintiff, during a performance, fell from an elevated platform and was injured. She sued in negligence. The Met argued plaintiff was an employee and her only recourse was workers’ compensation benefits. The court concluded the negligence cause of action was viable:

WCL [Workers’ Compensation Law] § 2(4) defines “employee” to include “a professional musician or a person otherwise engaged in the performing arts who performs services as such for … a theatre … or similar establishment … unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter.” Here, plaintiff’s services were provided to the Met pursuant to a per-performance contractor’s agreement, entered into between her corporation and the Met, that provided that the corporation “agree[d] to furnish to The Met the services of its employee, Wendy White . . ., as singer on an individual performance basis.” Plaintiff’s corporation meets the definition of an “employer covered by this chapter,” inasmuch as it is a corporation “having one or more persons in employment” (WCL § 2[3]). Thus, by written contract, plaintiff was stipulated to be an employee of another employer … .

The Met is correct that the plain language of WCL § 2(4) … draws no distinction between regular performers and stars. * * * … Here, the legislative history supports plaintiff’s suggested distinction, since it indicates that the statutory definition of employees was intended to protect the vast majority of performers, who are not “stars,” and that the statutory exception was designed to exclude those performers with the clout to negotiate the terms of their own engagements. White v Metropolitan Opera Assn., Inc., 2017 NY Slip Op 00093, 1st Dept 1-5-17

NEGLIGENCE (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/WORKERS’ COMPENSATION LAW (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/STARS (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)/EMPLOYMENT LAW (METROPOLITAN OPERA STAR’S NEGLIGENCE SUIT STEMMING FROM A FALL DURING A PERFORMANCE SURVIVED A MOTION DISMISS WHICH ARGUED THE WORKERS’ COMPENSATION LAW WAS PLAINTIFF’S ONLY REMEDY)

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DEFENDANT’S SLOW MOVING TRUCK FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE CAUSE OF THE COLLISION, DIFFICULTY SEEING BECAUSE OF SUNLIGHT DID NOT CONSTITUTE A NON-NEGLIGENT EXCUSE (FIRST DEPT).
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).
PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT).
EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT).
FURTIVE MOVEMENTS JUSTIFIED POLICE OFFICER’S LIMITED SEARCH OF DEFENDANT’S CAR, USE OF BANK CARD READER ON CARDS IN DEFENDANT’S POSSESSION DID NOT REQUIRE A SEARCH WARRANT (FIRST DEPT).
EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
THERE IS A QUESTION OF FACT WHETHER A 16-YEAR-OLD SOFTBALL PLAYER ASSUMED THE RISK OF STEPPING IN A HOLE ON THE FIELD (FIRST DEPT).

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