Russo v. CBS Corp.

• Decision Date: 16 June 2016
• Docket Number: Index No. 104294/2011
• Citation: 2016 NY Slip Op 31091 (U)
• Parties: JOHN RUSSO, Plaintiff, v. CBS CORPORATION AND CBS BROADCASTING, INC. Defendants.
• Court: New York Supreme Court

2016 NY Slip Op 31091(U)

JOHN RUSSO, Plaintiff, v. CBS CORPORATION AND CBS BROADCASTING, INC. Defendants.

Index No. 104294/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35

June 16, 2016

DECISION/ORDER

Motion Seq. 008

HON. CAROL ROBINSON EDMEAD, J.S.C.

MEMORANDUM DECISION

In this personal injury action arising from a slip and fall incident, defendants CBS Corporation and CBS Broadcasting, Inc. ("CBS Broadcasting") (collectively, "defendants") move for summary judgment dismissing the complaint of the plaintiff John Russo ("plaintiff").

Factual Background

Plaintiff allegedly slipped and fell while working as a Production Assistant on the set of the production of "The Good Wife" (hereinafter also called, the "Series") The set at the time of plaintiff's fall was located in the parking lot of defendant Old Westbury Hebrew Congregation, which CBS Broadcasting (through "business unit CBS Productions") rented pursuant to a Parking Agreement. Specifically, plaintiff was fueling a wardrobe trailer, and slipped on ice as he "got out of the truck." (Injury Report Form). Plaintiff's bill of particulars alleges that defendants were negligent in permitting an ice condition to exist, of which they had notice, and inadequate lighting of subject area.

In support of summary judgment, defendants argue that they were plaintiff's special employer, and thus shielded from liability based on plaintiff's receipt of Workers' Compensation benefits from his general employer, Entertainment Partners. In support, defendants submit, inter alia, plaintiff's deposition testimony, certified employment records from Entertainment Partners, and an affidavit from Entertainment Partners. Such records indicate that Entertainment Partners was a mere payroll company responsible for issuing checks and maintaining workers' compensation policy coverage and that the "production company" delegated, directed, and controlled his work through plaintiff's Teamsters Locals union captain. Defendants also submit the Personnel Services Agreement, in which CBS Broadcasting is expressly identified as the "Special Employer" of all personnel paid by "the employer."

In opposition, plaintiff denies that he was a special employee of defendants. Plaintiff submits an affidavit, in which he attests that he was employed by Entertainment Partners at the time of his accident. Plaintiff also cites to the Workers' Compensation decision, which indicates that plaintiff's employer was "ESPG [sic] Management" (which is Entertainment Partners). Plaintiff maintains that defendants had knowledge of, and chose not to participate in, the Workers' Compensation proceeding, and is thus bound by the finding that Entertainment Partners is plaintiff's employer and collaterally estopped from now arguing that plaintiff was their special employee. Plaintiff points out that he testified at his deposition that he did not receive any formal benefits from defendants and that his Union Captain was "the only person" who told him "what to do," and that the Captain "tells the production company what they need and how many pieces of equipment and stuff like that. . . ." (pp. 37; 33). Plaintiff also points out that the Personnel Services Agreement, which the Court should ignore as improperly redacted, states that Entertainment Partners had the "right to direct, control and supervise the Personnel supplied thereunder. . . ." In addition, an issue of fact exists as to whether Entertainment Partners ceded away complete employment power over plaintiff. The Personnel Services Agreement, theEntertainment Partner's accident report form directing the production company as to how to handle employee accidents, the contract between Studio Transportation Drivers and of which Entertainment Partners is a participant, and Videotape Electronics Supplemental Basic Agreement of 2003, establish that Entertainment Partners was not a mere payroll company and did not surrender complete or exclusive control of its employee, plaintiff herein. Defendants did not supervise plaintiff's work, and plaintiff exercised autonomy in how to accomplish his work functions, such as driving the gas truck, preparing make-up trailer, and filling up the bigger trucks with gas or fuel. Defendants did not interview or train plaintiff.

Further, defendants are barred under CPLR 3018 from raising the special employer defense as they failed to raise same as an affirmative defense in their Answer.

In reply, defendants submit supplemental affidavits from their executives indicating that all operational supervision is provided by defendants' Series director to other departments such as Transportation including Teamster Captains, who in turn communicate the direction to the Union workers, such as plaintiff. The Union Captain's actions are at the direction of and approved by defendants' senior production management. Also, CBS was named as an "Alternate Employer Endorsement" as to coverage of plaintiff. Defendants point out that although the Court granted plaintiff permission to take the deposition of the Union Captain, plaintiff, after learning "new information," decided to forego such deposition. And, defendants offer to submit the unredacted version of the documentation.

Discussion

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1^st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Powers ex rel. Powers v 31 E 31 LLC, 24 NY3d 84 [2014]).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR 3212 [b]; Farias v Simon, 122 AD3d 466 [1st Dept 2014]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose" (Kosovsky v. Park South Tenants Corp., 45 Misc.3d 1216(A), 2014 WL 5859387 [Sup Ct New York Cty 2014] citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]).

The opponent "must assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions" (Genger v. Genger, 123 AD3d 445, 447 [1st Dept 2014] lv to appeal denied, 24 NY3d 917 [2015] citing Schiraldi v. U.S. Min. Prods., 194 A.D.2d 482, 483 [1st Dept 1993]). In other words, the "issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (American MotoristsIns. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept 1984]; see also, Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [1st Dept 2012]).

A general employee of one employer may also be in the special employ of another, "notwithstanding that the general employer is responsible for the payment of his/her wages, has the power to hire and fire, has an interest in the work that is performed by the employee, maintains workers' compensation and other benefits for the employee, and provides some, if not all, of the employee's equipment (Gannon v. JWP Forest Elec. Corp., supra; see also Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991] [citations omitted]).

A "special employer may avail itself of the Workers' Compensation Law to bar negligence claims against it for injuries sustained by a special employee in the course of special employment" (Bellamy v. Columbia University, 50 A.D.3d 160, 851 N.Y.S.2d 406 [1^st Dept 2008]). A special employee is described as one who is transferred for a limited time of whatever duration to the service of another (id.). "Although no single factor is dispositive in determining whether a special employment relationship exists, a number of factors must be weighed, including: the right to and degree of control by the purported employer over the manner, details, and ultimate result of the special employee's work; the method of payment; the right to discharge; the furnishing of equipment; and the nature and purpose of the work. Of primary importance amongst these factors is the degree of control the alleged special employer has over the work of the employee" (Gannon v. JWP Forest Elec. Corp., 275 A.D.2d 231, 712 N.Y.S.2d 494 [1^st Dept 2000]; Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 585 N.E.2d 355, 578 N.Y.S.2d 106 [1992]).

Here, defendants made a prima facie showing that they were the special employer of theplaintiff.

According to the affidavit of Jerry Brandt, Senior Vice President, Production Finance for CBS Studios Inc. and other related CBS entities, "CBS exercised sole control" over plaintiff's workplace, the duties he was requested to perform and all aspects of his employment while he was employed on the Series" (¶7) (emphasis added). Plaintiff was "to follow the instruction and direction of CBS directors and other supervisory personnel regarding their day to day work performance" (¶7). Eugene J. Mellevold, Vice President Risk Management & Insurance for defendants, also adds that Entertainment Partners "was not involved in directing the day-to-day work of John Russo or any other CBS employees on the Series." (Affidavit, ¶6)....