OPINION and ORDER

JOHN F. KEENAN, U.S.D.J.

Before the Court are motions for Summary Judgment filed by Defendant/Third Party Plaintiff Annie Liebovitz Studios ("Liebovitz") and Defendant/Third Party Defendant Weinhoff Studios ("Weinhoff"). For the reasons discussed below, Liebovitz' motion is granted in its entirety and Weinhoff's motion is denied.

Background

Plaintiff Sam Arcure is a citizen and resident of the State of Florida. Defendant/Third Party Plaintiff Annie Liebovitz Studios, Inc. ("Liebovitz") is a corporation incorporated under the laws of New York. Defendant/Third Party Defendant Marla Weinhoff Studios ("Weinhoff") is also a corporation organized under the laws of New York. This Court has jurisdiction over Arcure's claim pursuant to 28 U.S.C. § 1332, since the amount in controversy exceeds $75,000 and the suit is between a citizen of a State and citizens of another state. Jurisdiction over the Third Party Complaint is pursuant to 28 U.S.C. § 1367.

This suit arises from an accident which occurred on April 13, 1998 during a photo shoot in hanger #7 at Floyd Bennett Field, in Brooklyn, New York, and the basic facts are not in dispute. Sony Music hired Liebovitz to take photos of cehist Yo Yo Ma for a CD cover, and Liebovitz hired Weinhoff to design the set. Weinhoff in turn hired two workers, Paul Nowell ("Nowell") and Nick Gaskin ("Gaskin"), to help her. Shortly after arriving at the shoot, Nowell and Gaskin were asked to assemble a backdrop, which consisted of two tall rolling poles, called highboys, with a crossbar between them, over which fabric would be draped. The crossbar was attached to the poles by C-clamps. Plaintiff, a lighting technician employed by another independent contractor, RGH Lighting Co., was allegedly injured when the crossbar fell and struck him on the head as it was being pushed by Nowell and Gaskin; apparently one of the C-clamps had not been tightened sufficiently. Arcure testified at his deposition that Gaskin accepted responsibility following the accident, apologizing to Arcure at the scene. See Alamon Affirmation in Supp. of Liebovitz' Mot., Ex. P at 75; Bohrer Affirmation in Opp. to Defs.' Mots., Ex. D at 88-89. There has been no evidence submitted that the backdrop equipment was defective.

Arcure claims he was seriously injured in the accident. He filed a lawsuit against Liebovitz on December 28, 1998, seeking five million dollars in damages. Liebovitz filed a Third Party Complaint against Weinhoff, alleging that the accident was caused by Weinhoff and/or her agents and further asserting that Weinhoff was contractually obliged to indemnify Liebovitz for any judgments or settlements resulting from lawsuits "arising out of the loading, handling, transportation, unloading or delivery and setting up of any equipment" used by Weinhoff. Third Party Compl. ¶ 11. Weinhoff responded by filing a Counterclaim against Liebovitz, seeking indemnification and/or contribution. On October 29, 1999, Plaintiff filed an Amended Complaint against Liebovitz, Weinhoff, Nowell and Gaskin. Liebovitz then filed Crossclaims against Nowell and Gaskin, and Weinhoff filed Crossclaims against Liebovitz, Nowell and Gaskin. Both Liebovitz and Weinhoff now move for summary judgment, seeking dismissal of all claims and cross claims pending against them.

Summary Judgment Standards

A motion for summary judgment may be granted under Fed.R.Civ.P. 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990); see also McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Although the movant initially bears the burden of showing that there are no genuine issues of material fact, once such a showing is made, the opposing party must produce sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial," Anderson v. Liberty Lobby, 477 U.S. at 248, 256. Since "unsupported allegations do not create a material issue of fact,"Weinstock v. Columbia Univ., No. 99-7979, 2000 WL 1200161, at *5 (2d Cir. Aug. 23, 2000), a summary judgment motion "will not be defeated merely . . . on the basis of conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Gonepa v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

Liebovitz' Motion for Summary Judgment

Under New York law, "[t]he general rule is that the employer of an independent contractor is not liable for injury caused to a third party by an act or omission of the independent contractor or its employees." See Wright v. Esplanade Gardens, 540 N.Y.S.2d 805, 806 (App.Div. 1989); see also Kleeman v. Rheingold, 81 N.Y.2d 270, 274 (N.Y. 1993) (noting that "the risk of loss is more sensibly placed on the contractor"). Defendant/Third Party Plaintiff Liebovitz argues that all claims and cross claims against it should be dismissed because those allegedly responsible for the accident were either independent contractors or the employees or agents of independent contractor Weinhoff. The Court agrees. "Control of the method and means by which the work is to be performed . . . is a critical factor in determining whether one is an independent contractor or an employee for the purposes of tort liability." Melbourne v. New York Live Ins. Co., 707 N.Y.S.2d 64, 66 (App.Div. 2000). All parties concede that Gaskin and Nowell were not Liebovitz employees; it was Weinhoff who hired Gaskin and Nowell, see Alamon Affirmation in Supp. of Liebovitz' Mot., Ex. O at 15 (Weinhoff's Deposition testimony), and Weinhoff who allegedly instructed them to assemble the backdrop. See id., Ex. M at 25. While an employer can be liable for the tort of an independent contractor if the employer "directed the act from which the injury resulted or [took] an affirmative, active part in its commission," Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 143 (S.D.N.Y. 1991), there is no evidence on the record that any Liebovitz employee supervised or directed Gaskin and Nowell while they assembled or moved the backdrop. In fact, there is no evidence that anyone other than Nowell and Gaskin assembled or moved the backdrop prior to the accident, or that anyone other than Nowell and Gaskin even witnessed the accident. See Alamon Affirmation in Supp. of Liebovitz' Mot., Ex. K at 44. Arcure even testified at his deposition that Gaskin admitted responsibility for the accident. See id., Ex. P at 75; Bohrer Affirmation in Opp. to Defs.' Mots., Ex. D at 88-89. Since there is no evidence that Gaskin and Nowell were Liebovitz' employees or that Liebovitz "directed the act from which the injury resulted or [took] an affirmative, active part in its commission." Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. at 143, summary judgment dismissing all claims and cross claims against Liebovitz is warranted.

Defendant/Third Party Defendant Weinhoff maintains that Liebovitz' motion should be denied since there is a dispute over whether a Liebovitz employee, Mr. Oh ("Oh"), was involved in the accident, but there is no factual basis for Weinhoff's contention. A party opposing summary judgment has the burden to raise sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial," Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 256. The only evidence present in the record to suggest that Oh might have had some involvement in the accident is Weinhoff's deposition testimony that she believed that Oh re-assembled the backdrop after Arcure was injured; Weinhoff did not even see Oh work on the apparatus. See Robinson Affirmation in Opp. to Pl.'s Mot., Ex. A at 38. There is no testimony that Oh helped assemble the backdrop, that he was pushing it when the accident occurred or even that he witnessed the accident. On the contrary, Nowell has testified that he and Gaskin assembled the backdrop before the accident and that only they were pushing it when the crossbar fell, striking Arcure. See Alamon Affirmation in Supp. of Liebovitz' Mot., Ex. M at 27-31. Weinhoff's suggestion that Oh could have been involved in the accident is purely speculative, and a motion for summary judgment cannot be defeated by "conjecture and surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)

Recognizing that she cannot present evidence that Oh was actually involved in Plaintiff's accident, Weinhoff invokes Federal Rule of Civil Procedure 56(f), requesting that Oh be deposed before Liebovitz' motion is considered. See Robinson Affirmation in Opp. to Liebovitz' Mot., ¶ 13-14. Rule 56(f) provides that: "[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance." F.R.C.P. 56(f). However Rule 56(f) is not a substitute for general pre-trial discovery; it is a limited remedy, providing relief only "if the nonmoving party has not had an opportunity to make full discovery." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2d Cir. 1985), the Second Circuit held that:

"Rule 56(f) requires the opponent of a motion for summary judgment who claims to be unable to produce evidence in opposition to the motion to file an affidavit explaining:

1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and

2) how those facts are reasonably expected to create a genuine issue of material fact; and

3) what efforts the affiant has made to obtain those facts; and

4) why those efforts were unsuccessful."

Id. at 926.

The Affirmation filed by Weinhoff's attorney neither outlines previous efforts to secure Oh's deposition nor explains why those efforts were unsuccessful; it merely states that Oh "was not produced." Robinson Affirmation in Opp., ¶¶ 13-14. The Third Party Complaint against Weinhoff was filed over a year before Liebovitz filed its motion for summary judgment, so Weinhoff had ample opportunity to obtain full discovery in this case. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d at 927. Weinhoff cannot claim that she had previously been unaware that Oh's testimony might be relevant, since all speculation regarding Oh stems from Weinhoff's belief that Oh helped reassemble the backdrop. Given the fact that Weinhoff has not explained why she was unable to depose Oh during the regular course of discovery, and given the fact there is no evidence on the record to suggest that Oh had anything to do with Plaintiff's accident, Weinhoff's request that the Court delay consideration of this motion until Oh can be deposed is denied. See Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 143-44 (S.D.N.Y. 1991) ("The Court may reject a request for further discovery pursuant to Rule 56(f) if . . . the request is based on pure speculation as to what would be discovered."); see also Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir. 1981) (same).

Weinhoff further maintains that Liebovitz' motion should be denied since there is a dispute of fact regarding whether Liebovitz directed or controlled Gaskin's and Nowell's actions at any time on the day of the accident. See Weinhoff's Counter 56.1 Stmt. in Opp. to Liebovitz' Mot. ¶ 12iii. While there is a genuine dispute over whether Gaskin and Nowell worked with Liebovitz and her employee Rick Floyd ("Floyd") constructing a frame on the day of the accident, the resolution of that dispute is arguably material to the issue of Weinhoff's liability for the accident, not Liebovitz'. If Gaskin and Nowell did work with Floyd that day, that fact might support Weinhoff's contention that Gaskin and Nowell were independent contractors rather than her employees. Liebovitz' liability is the same, however, whether Gaskin and Nowell were independent contractors or Weinhoff's employees. See Wright v. Esplanade Gardens, 540 N.Y.S.2d 805, 806 (App.Div. 198 9). It is settled law that "only facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The question of whether Gaskin and Nowell worked with Floyd after the accident cannot affect the outcome of the claim against Liebovitz, therefore Liebovitz' motion should not be denied on the basis of this immaterial factual dispute.

Plaintiff Arcure opposes Liebovitz' motion for summary judgment on the basis of his allegations that Liebovitz negligently hired independent contractor Weinhoff. Under New York law an employer can be held liable for injuries caused by an independent contractor if that employer was negligent in hiring the contractor, see also Cichon v. Brista Estates Ass., 597 N.Y.S.2d 819, 820 (App.Div. 1993) (noting that "a situation where an employer engages an unqualified or careless contractor is an exception to the general rule absolving an employer from liability for the torts of an independent contractor or an employee thereof"), but the plaintiff must show that "the employer either failed to exercise reasonable care in the selection of the contractor or had actual or constructive knowledge of the contractor's insufficiency." Waite v. American Airlines, Inc., 73 F. Supp.2d 349, 355 (S.D.N.Y. 1999); see also Sanchez v. United Rental Equip. Co., 667 N.Y.S.2d 410, 412 (App.Div. 199 8). Arcure has not presented any evidence either that Weinhoff was unqualified or that Liebovitz was irresponsible in hiring her. On the contrary, it is undisputed that Weinhoff was an experienced, reputable set designer, with whom Liebovitz had worked on several occasions prior to the date of the accident. See Lieboviz' Reply Mem. at ¶ 15. Furthermore, Plaintiff does not contradict Liebovitz' contention that it had no notice of any complaints against Weinhoff before Arcure was injured. Unable to allege that Liebovitz cavaherly hired an inept contractor, Plaintiff argues that Liebovitz breached a duty to insure workplace safety by, among other things, failing to 1) institute formal safety training programs, 2) designate a person in charge of job site safety, 3) establish specific standards for its contractors, and 4) monitor contractors' hiring practices. See Pl.'s Mem. in Opp. at 13-14. Under New York law, however, Liebovitz had no duty to do any of these things. Plaintiff has failed to present any evidence that Liebovitz acted negligently when it hired Weinhoff, and therefore he has not met the burden required to defeat Liebovitz' motion for summary judgment. See Anderson v. Liberty Lobby, 477 U.S. at 248, 256.

Accordingly, since there are no facts on the record which could support a claim against the Defendant/Third Party Plaintiff, Liebovitz' Motion for Summary Judgment dismissing all claims and cross-claims against it is hereby granted in its entirety.

Weinhoff's Motion for Summary Judgment

Defendant/Third Party Defendant Weinhoff also moves for summary judgment, seeking dismissal of all claims and cross-claims against her, but since there remain genuine issues of material fact regarding Weinhoff's liability, summary judgment in her favor is not warranted. Weinhoff claims that the accident was caused by Gaskin and Nowell, and further asserts that Gaskin and Nowell were independent contractors, not her employees. As was noted earlier, an employer is not generally liable for the negligence of independent contractors. See Melbourne v. New York Life Insurance Co., 707 N.Y.S.2d 64, 66 (App.Div. 2000); see also Kleeman v. Rheingold, 81 N.Y.2d 270, 274 (N.Y. 1993). Weinhoff cites several factors to support her contention that Gaskin and Nowell were independent contractors; she notes that she hired them only for the day, she did not withhold employment taxes, and neither Nowell nor Gaskin filled out a job application or submitted to a job interview. Weinhoff Mem. in Supp. of Mot. at 5-6. These factors are not dispositive, however.

Under New York law, "an independent contractor is `one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.'" Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 142-43 (S.D.N.Y. 1991), quoting Murray Hill Films, Inc. v. Martinair Holland, N.V., 1987 WL 14918 *3, 1987 U.S. Dist. LEXIS 6500, *7-*8 (S.D.N.Y. July 17, 1987). "Control of the method and means by which the work is to be done . . . is the critical factor" in determining whether the employer is liable for injuries caused by an independent contractor. Mason v. Spendiff, 656 N.Y.S.2d 462, 463 (App.Div. 199 7). An employer might be liable for injuries caused by an independent contractor even if it can establish that the alleged tortfeasor was not a regular employee. "[I]f the employer assumes control of the details of the work or some part of it, then the general rule will not apply and the employer may himself be liable." Wright v. Esplanade Gardens, 540 N.Y.S.2d 805, 806 (App.Div. 198 9); see also Royal Ins. Co. of Am. v. Ru-Val Electric Corp., 981 F. Supp. 647, 653 (E.D.N.Y. 1996) ("Courts look for the exertion of actual control, not formal indicia of control."), citing Restatement (Second) of Torts, § 409 cmt a.

In Lazo v. Mak's Trading Co., Inc., the New York Court of Appeals held that workers hired to unload rice from a truck were independent contractors since "[t]he alleged tortfeasor came and went as he and his companion pleased, worked at their own convenience, were free to hold other employment, were never placed on defendant's payroll, received no fringe benefits, and had no taxes withheld from the flat rate, single payment." Lazo v. Mak's Trading Co., Inc., 84 N.Y.2d 896, 896 (N Y 1994). In Mason v. Spendiff, however, the Appellate Division found that despite the fact that a newspaper delivery worker used his own vehicle, was not reimbursed for gas or other work expenses, was free to work for competing businesses and worked under an agreement which expressly characterized him as an independent contractor, there were sufficient factual issues present to preclude a grant of summary judgment in favor of the employer.See Mason v. Spendiff, 656 N.Y.S.2d 462, 463, 464 (App.Div. 199 7). "The determination of whether one is an independent contractor typically involves a question of fact concerning which party controls the methods and means by which the work is to be done," Lazo v. Mak's Trading Co., Inc., 605 N.Y.S.2d 272, 273-74 (App.Div. 1993), aff'd, 84 N.Y.2d 896, 896 (N.Y. 1994), and only when "the proof on the issue of control presents no conflict in evidence [may the matter] properly be determined by the court as a matter of law." Id. at 274 (emphasis added).

The record in this case reveals a genuine dispute among the parties regarding the extent of control Weinhoff exerted over Gaskin and Nowell. Weinhoff maintains that Gaskin and Nowell were independent contractors, hired for the day, over whom Weinhoff exercised no control. See Weinhoff Mem. in Supp. of Mot. at 4-6. Plaintiff maintains, on the other hand, that Weinhoff actually did control Nowell and Gaskin, stating that they were Weinhoff's employees, physical laborers who "had no freedom to use their own discretion or judgment; the two men could not and did not act without direction, and that direction came directly from Weinhoff." Pl.'s Mem. in Opp. at 3. Nowell's testimony could support either argument. While he acknowledges that he did not formally apply for a job with Weinhoff and was paid as an independent contractor (filing taxes as a self-employed worker), Nowell nevertheless testified that Weinhoff transported Gaskin and him to the photo shoot site, provided all the equipment used that day and "told us what she wanted when we arrived there." Alamon Affirmation in Supp. of Liebovitz' Mot. Ex. M at 31, 51. The work Nowell performed was not skilled labor; in fact, Nowell testified that he had never assembled a backdrop before. See id. at 27. According to Nowell, he was not an independent contractor; he took direction from Weinhoff. The parties also dispute whether Nowell and Gaskin worked with Liebovitz employee Rick Floyd ("Floyd") to build a frame on the day of the accident, a fact that might support Weinhoff's contention that Nowell and Gaskin were independent contractors. Weinhoff testified that they did work with Floyd, see Robinson Affirmation in Supp. of Weinhoff's Mot., Ex. F at 46, while Nowell denied that he took direction from anyone but Weinhoff that day. See Alamon Affirmation in Supp. of Liebovitz' Mot., Ex. M at 46. Clearly there are factual disputes regarding the nature and extent of the control exerted by Weinhoff over Nowell and Gaskin. Accordingly, Weinhoff's Motion for Summary Judgment is hereby denied.

Conclusion

SO ORDERED.