Met Opera’s motion to dismiss a star’s negligence action against it was properly denied.

In a decision by Justice Rolando Acosta, the First Department affirmed Special Term’s denial of the Met Opera’s motion to dismiss plaintiff’s negligence action.  The Met based its motion on plaintiff’s status as the Met’s employee or special employee, which would have relegated plaintiff to the exclusive remedy of worker’s compensation per WCL §11.

By way of background, the New York Times reported on December 18, 2011 that mezzo soprano Wendy White, while singing the role of Marthe in Gounod’s “Faust” the preceding evening, fell from a platform eight feet above the stage as she made her entrance in Act III.   http://www.nytimes.com/2011/12/18/arts/music/opera-singer-wendy-white-in-stable-condition-after-a-fall-at-the-met.html.   As she walked onto a platform from a staircase, a hinge on a piece of plywood that connected the platform to the stairway broke, and Ms. White disappeared from view.  The curtain was dropped and Ms. White was taken to the hospital.  Id.  Ms. White broke no bones but suffered nerve and muscle damage that has prevented her from singing professionally.  http://www.nytimes.com/2012/10/02/arts/music/wendy-white-says-met-refuses-to-pay-her-after-injury.html.

At issue on the Met’s motion to dismiss was Workers’ Comp. Law§ 2(4), which was enacted in 1986 to define “employee” to include those in the performing arts:

“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.”

WCL §2(4) (emph. supplied).

Plaintiff performed at the opera house pursuant to a “Standard Contractor’s Agreement (Per Performance”) between the Met and her corporation, Wendy White, Inc. (WW, Inc.), which defined WW, Inc. as the “Contractor”.

Notwithstanding various provisions of the Standard Contract and the collective bargaining agreement covering Ms. White, which gave the Met a certain amount of control over Ms. White in her performances, the First Department found the following factors important in denying the Met’s motion to dismiss:

• The Standard Contractor’s Agreement was between the Met and plaintiff’s corporation and specified that plaintiff was an employee of her corporation.
• The Standard Contractor’s Agreement did not cede total control of Ms. White’s performance to the Met, so the Met did not become her special employer.
• Plaintiff’s corporation received only 1099’s, not W-2’s from the Met.
• The Met paid her no employment benefits and had told her she did not qualify for the Met’s health insurance because she was not an employee.
• The Met provided her with no training, supervision, or direction from the Met with respect to how to perform her role and did not pay for her voice lessons or coaching.
• The legislative history behind section 2(4) stated that the section was intended to cover the vast majority of musicians and performers who are not in the star category, as opposed to star performers who are independent professionals able to negotiate the terms of their engagements.
• Without plaintiff’s consent, the Met filed a worker’s compensation claim in New York with its worker’s compensation, which the Met’s WC carrier accepted “without prejudice”.
• The Worker’s Compensation Board cancelled its proposed decision of accident, notice and causal relationship on the ground that claimant wanted the case to be discontinued because she had filed her own WC claim in New Jersey against her corporation-employer.
• The Met had previously taken the opposite position in an unrelated case, Inre Metropolitan Opera Assn., Inc. and Operatic Artists of America, (327 NLRB No. 136, 327 NLRB 740, 744-745 1999 WL 112550, *9, 1999 NLRB LEXIS 113, *29-30 [NLRB 1999]).

Plaintiff’s corporation therefore met the definition of an “employer covered by this chapter,” inasmuch as it is a corporation “having one or more persons in employment” per WCL § 2(3).

Lastly, the failure of plaintiff’s corporation to have obtained a workers’ compensation policy compliant with WCL §50(2) did not mean that plaintiff was necessarily covered by the Met’s worker’s compensation policy, because the statutory consequence of failing to obtain such a policy is simply payment of a penalty.  In addition, WCL §54(6)(c) provides that a corporation such as plaintiff’s, whose sole employee is an executive officer who owns 100% of the stock, need not purchase workers’ compensation for the employee.  Moreover, plaintiff’s corporation was not seeking to invoke the benefits of the immunity provision of WCL §11 without fulfilling its corresponding obligation under the statute.

White v. Metropolitan Opera Ass’n, 2017 NY Slip Op. 00093 (Jan. 5, 2017)   http://nycourts.gov/reporter/3dseries/2017/2017_00093.htm