Opinion
August 19, 1996
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 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 N.Y.2d 270, 273).
Considering the relevant factors ( see, e.g., Scott v Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429; Szabados v Quinn, 156 A.D.2d 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 plaintiff's 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 N.Y.2d 928, revg 9 A.D.2d 214, inter alia, on dissent of Rabin, J. at App. Div.; see also, Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 658; Broderick v Cauldwell-Wingate Co., 301 N.Y. 182). Miller, J.P., O'Brien, Sullivan and Florio, JJ., concur.