Kelly v. Warner Bros.

—In an action to recover damages for personal injuries, the defendant Warner Bros., Inc., appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 26, 1995, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed, without costs or disbursements. The plaintiff, an actor, was injured while performing in a [830] music video which was being filmed for the defendant Warner Bros., Inc. (hereinafter Warner Brothers). Warner Brothers moved for summary judgment on the ground that the director and producer of the video, the defendants Mustapha Khan and The 339 Company, Inc., respectively, were independent contractors, and it was not liable for their alleged negligent acts (see, Kleeman v Rheingold, 81 NY2d 270, 273). Considering the relevant factors (see, e.g., Scott v Massachusetts Mut. Life Ins. Co., 86 NY2d 429; Szabados v Quinn, 156 AD2d 186), we agree with the Supreme Court that there are issues of fact as to whether the defendants Mustapha Khan and The 339 Company, Inc., were employees or independent contractors. In addition, we reject Warner Brothers’ contention that the plaintiffs claim is barred by the doctrine of assumption of the risk, since a question of fact is presented as to whether he acted in a reasonably prudent manner under the circumstances (see, Verduce v Board of Higher Educ., 8 NY2d 928, revg 9 AD2d 214, inter alia, on dissent of Rabin, J. at App Div; see also, Benitez v New York City Bd. of Educ., 73 NY2d 650, 658; Broderick v Cauldwell-Wingate Co., 301 NY 182). Miller, J. P., O’Brien, Sullivan and Florio, JJ., concur.