Opinion
157064/2013
05-10-2019
Wendy WHITE, Plaintiff, v. METROPOLITAN OPERA ASSOCIATION, INC., Defendant.
Plaintiff is represented by Edelman & Edelman, P.C. — David M. Schuller, Esq. (212) 943-1200 Defendant is represented by Katz & Rychik, P.C. — Abe M. Rychik, Esq. (212) 766-4700
Plaintiff is represented by Edelman & Edelman, P.C. — David M. Schuller, Esq. (212) 943-1200
Defendant is represented by Katz & Rychik, P.C. — Abe M. Rychik, Esq. (212) 766-4700
Shlomo S. Hagler, J. This negligence action arises out of plaintiff Wendy White's claims that she sustained personal injuries as a result of falling from an on-stage platform while performing at the Metropolitan Opera House at Lincoln Center, a venue owned and operated by defendant Metropolitan Opera Association, Inc. (the "Met"). Plaintiff moves, pursuant to CPLR 3211(b) and 3212, for an order dismissing the second affirmative defense in the Met's amended answer, which alleges that the action is barred by the Workers' Compensation Law, and for an order granting partial summary judgment on the issue of liability. As set forth below, plaintiff's motion is granted in its entirety.
BACKGROUND AND FACTUAL ALLEGATIONS
The relevant facts and procedural history of this long-standing dispute are as follows: Plaintiff is an opera singer who, "[f]or the past 22 years, [has] performed at the Met as a ‘Principal Artist’ in over 500 performances nearly all of which were in title, starring or leading roles." Plaintiff's exhibit 7, plaintiff's aff, ¶ 9. On December 17, 2011, while performing the role of Marthe in the Met's production of Faust, plaintiff fell and sustained serious injuries. Plaintiff alleged that her accident was the result of the Met's negligence in failing to keep the "facility, stage and set," in a safe condition. Specifically, during the performance, while "attempting to gain access from the backstage staircase to the on-stage set's elevated platform to perform ...she was caused to fall from the elevated platform/balcony level of the set to the ground level backstage ...." Plaintiff's Exhibit 1, Complaint, ¶ 48.
Plaintiff indicated that, at the time of the accident, she was an employee of Wendy White, Inc., and also a member of the American Guild of Musician Artists, Inc. ("AGMA"), a labor union. She stated that, on the date of the accident, she was performing her role as a "Principal Solo Singer" pursuant to a Standard Contractor's Agreement dated December 22, 2010, entered into by Wendy White, Inc. and the Met. According to this agreement, Wendy White, Inc. "agreed to furnish to the [Met] the services of [plaintiff] on an Individual Per Performance Basis." Id. , ¶ 28. The contract, set forth, among other things, the various performances between October 2011 and May 2012 where plaintiff guaranteed to sing and the rehearsal schedule. Plaintiff's Exhibit 1, Exhibit A.
The Met moved for dismissal pursuant to CPLR 3211 (a) (1) and (7), on the ground that plaintiff's claims are barred by the exclusive remedy provision of the Workers' Compensation Law. In brief, Workers' Compensation Law § 11 indicates that employees are precluded from suing their employer for injuries sustained during the course of employment. Workers' Compensation Law 2 § (4) provides the definition for an "employee," and was amended in 1986 to include theatrical and other performers. It sets forth, in pertinent part:
See Workers' Compensation Law § 11 : "The liability of an employer ...shall be exclusive and in place of any other liability whatsoever, to such employee ...on account of such injury ...."
" ‘Employee’ shall also mean, for purposes of this chapter, a professional musician or a person otherwise engaged in the performing arts who performs services as such for a television or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter. ‘Engaged in the performing arts’ shall mean performing service in connection with the production of or performance in any artistic endeavor
which requires artistic or technical skill or expertise."
Workers' Compensation Law § 2 (4).
The Met argued that, pursuant to Workers' Compensation Law § 2 (4) plaintiff is considered an employee of the Met and is thereby precluded from maintaining this action. Further, among other things, the Met stated that, after plaintiff's accident, it submitted a workers' compensation claim to its insurance provider. In the alternative, the Met argues that plaintiff should be considered a "special employee," based on the extent that the Met controlled plaintiff's work performance. As a special employee of the Met, plaintiff's action would also be barred by the Workers' Compensation Law.
In opposition, plaintiff argued that she is not barred by the exclusive remedy provision of the Workers' Compensation Law because she is not an employee under the statute. Plaintiff had argued that she has always performed at the Met pursuant to the Standard Contractor Agreement, and her employer was identified as Wendy White, Inc. Moreover, plaintiff had always received her salary from Wendy White, Inc., and had only received 1099s from the Met.
Plaintiff stated that she has had a "long and successful operatic career," and that she is "considered one of the most respected mezzo sopranos of [her] era." Plaintiff's aff, ¶ 13. She explained that the Met decided to retain her consistently for performances, despite hundreds of other artists to choose from.
Further, plaintiff argued that she was not a special employee, as the Met did not provide her with any direction on how to perform her role. No one from the Met trained, supervised or directed her and she had "full artistic control" over her performance. Id. , ¶ 27. She was only advised when to attend rehearsals and performances and where to enter and exit the stage. "This is the deference accorded stars of the opera world, of which I am one." Id. Plaintiff notes that the Met provided her with makeup, costumes and wigs, but that this was "usual and customary," regardless of the performer's status.
The parties made additional arguments, such as the significance of plaintiff's membership in the AGMA labor union.
Plaintiff claimed that Wendy White, Inc., purchased a workers' compensation policy for plaintiff. The coverage was purchased for New Jersey, as this is where "where my corporation was formed, where my residence was located and where any medical treatment and recuperation would take place, if I were injured." Id. , ¶ 18. Plaintiff claimed that she did not realize until weeks after the accident that "the Met was trying to arrange for their workers' compensation carrier to pay my medical bills and lost wages." Id. , ¶ 20. Plaintiff stated that she "rejected" attempts by the Met to pay her medical bills by the Met's compensation carrier. She did not deposit or accept the wage checks received by the compensation carrier as she was not an employee.
Plaintiff also noted that, at one point, she and other principal artists had asked the Met about being added to its group health insurance policy. However, the Met advised the principal artists that they were not employees and did not qualify for the group health insurance.
This Court denied the Met's motion to dismiss. The Court noted that it reviewed the relevant documentary evidence, including the Standard Contractor Agreement, the collective bargaining agreement, the Met's insurance policy and the insurance payments made to plaintiff and found that the Met did not present "sufficient evidence to prove that the plaintiff was an employee of the Met at the time of the accident in which the plaintiff was injured." See plaintiff's Exhibit 4. White v. Metropolitan Opera Assn., Inc., 2015 N.Y. Slip Op. 32639(U), 2015 WL 6956879, *13 (Sup. Ct., N.Y. County 2015), affd 148 A.D.3d 13, 44 N.Y.S.3d 412 (1st Dept. 2017). In pertinent part, this Court also distinguished Fouchécourt v. Metropolitan Opera Assn., 537 F.Supp.2d 629, 633 (S.D.N.Y. 2008) a decision relied upon by the Met. In Fouchécourt , although an injured opera singer was found to be an employee of the Met, that singer was directly employed by, and contracted with, the Met. On the contrary, in the instant situation, in the Standard Contractor Agreement, the Met acknowledged that plaintiff was Wendy White Inc.'s employee, not an employee of the Met. This Court added that, in an unrelated case, the Met took the contrary position, arguing that "solo artists retained by the Met, including corporate artists engaged on a ‘per performance’ basis, are not considered employees of the Met." White v. Metropolitan Opera Assn., Inc., 2015 N.Y. Slip Op. 32639(U), 2015 WL 6956879 at *13.
On appeal, the Appellate Division, First Department, affirmed this Court's determination that the Met "did not present sufficient evidence to prove that plaintiff was its ‘employee’ at the time of the accident." White v. Metropolitan Opera Assn., Inc., 148 A.D.3d at 18, 44 N.Y.S.3d 412. The Appellate Division examined the definition of "employee" in Workers' Compensation Law 2 § (4), noting that it excludes professional performers who, " ‘by written contract ....[are] stipulated to be an employee of another employer covered by this chapter.’ " Id. It noted that "plaintiff's services were provided to the Met pursuant to a per-performance contractor's agreement ....." Id. The Appellate Division again distinguished the decision in Fouchécourt , adding that, here, "by written contract plaintiff was stipulated to be an employee of another employer." Id.
The Appellate Division agreed that the definition of employee in Workers' Compensation Law 2 § (4), "draws no distinction between regular performers and stars." However, it discussed the legislative history of Workers' Compensation Law § 2 (4), holding that it "supports plaintiff's suggested distinction, since it indicates that the statutory definition of employee was intended to protect the vast majority of performers, who are not ‘stars,’ and that the statutory exception was designed to exclude those performers with the clout to negotiate the terms of their own engagements." White v. Metropolitan Opera Assn., Inc., 148 A.D.3d at 19, 44 N.Y.S.3d 412.
The Appellate Division noted that, in Fouchécourt, "all musicians and performing artists are deemed to be ‘employees’ for [Workers' Compensation Law] purposes." Id. (citation omitted). However, the it distinguished Fouchécourt again, noting that "the court in Fouchécourt was not addressing the question at issue here, i.e., whether Workers' Compensation Law § 2 (4) applies to ‘stars’ who negotiate the terms of their appearance through a company that employs them." Id.
The Appellate Division concluded that "[p]laintiff's corporation meets the definition of an ‘employer covered by this chapter,’ inasmuch as it is a corporation ‘having one or more persons in employment’ ( Workers' Compensation Law § 2 [3 ] )." Id. at 18, 44 N.Y.S.3d 412. It added that, plaintiff does not have to prove that her corporation maintained a workers' compensation policy in New York to establish employer status. Further, there was "no policy reason to find that plaintiff's corporation is not her employer ....." Id. at 20, 44 N.Y.S.3d 412. Finally, the Appellate Division addressed the application of the "common-law special-employee doctrine," noting that "the Met failed to submit documentary evidence establishing conclusively that it assumed exclusive control over the manner, details and ultimate result of the employee's work." Id. (internal quotation marks and citation omitted).
Instant Motion
Now, on the basis of new legislation enacted after the decision in White v. Metropolitan Opera Assn., Inc., 148 A.D.3d 13, 44 N.Y.S.3d 412 ), plaintiff moves to dismiss the Met's second affirmative defense that the action is barred by the exclusive remedy provision of the Workers' Compensation Law. As set forth below, in 2017, a bill was proposed, enacted and signed into law by the governor, excluding this particular plaintiff from the definition of employee for purposes of the Workers' Compensation Law. See Plaintiff's Exhibit 8, Bill S3353, Chapter 23 (Laws of New York 2017) (Bill S3353).
As indicated in the record, the memo in support of Bill S3353 explained that, prior to the amendment of the Workers' Compensation Law in 1986, the determination of whether a performing artist was an employee or an independent contractor for "purposes of workers' compensation coverage was made on a case-by-case basis with analysis of common-law factors ...." Id. at 5. At that time, if the performers were injured, they would have to commence the time-consuming process of proving their employee status in front of a workers' compensation board, who "almost invariably found for the injured performer." Id. at 6. The law was amended in 1986 to "eliminate the necessity for hearings in the case of performers who were, under traditional principles, actually employees." Id.
The purpose behind proposing Bill S3353 was to "amend the unconsolidated law to clarify that a particular musician ...is not an ‘employee’ of the venue of the performance." Id. at 5. The memo summarized that "[t]his narrowly tailored bill is in response to a specific situation that resulted in an unfair inequity for a specific performer ...." Id. at 6. In essence, the bill "clarifies that a particular executive officer of a corporation," namely plaintiff, "who happened to be a performing artist, was on the same footing as any other corporative executive who owns his or her own corporation," and would be able to "elect to forego workers' compensation insurance, and, in the event of injury, to maintain their right of action under traditional tort principles." Id. The memo reiterated that Bill S3353 will not change the 1986 amendment to the Workers' Compensation Law as it impacts performing artists and their rights to workers' compensation.
The new act, signed into legislation by the governor on March 15, 2017, states the following, in pertinent part:
"Section 1. Notwithstanding the fourth undesignated paragraph of subdivision 4 of section 2 of the workers' compensation law or any other provision
of law to the contrary, for purposes of the workers' compensation law, the term ‘employee’ shall not include a musician or person who is an executive officer of a corporation who contracts for the musician or person's services, and who if not a musician or person otherwise engaged in performing arts would be deemed excluded from coverage under paragraphs (c) and e of subdivision 6 of section 54 of the workers' compensation law and who is not a musician or officer who elects to be overed under paragraphs (c) and e of subdivision 6 of section 54 of the workers' compensation law and who has a date of workplace accident on December 17, 2011 and whereby there is no workers' compensation claim established as compensable by the workers' compensation board that was filed by the musician or person for such accident."
Workers' Compensation Law § 54 (6) (c) sets forth, in pertinent part:
"An executive officer of any corporation who at all times during the period involved owns all of the issued and outstanding stock of the corporation ...who is the executive officer of a corporation that has no other persons who are employees required to be covered under this chapter shall be deemed to be excluded from coverage under this chapter unless such officer elects to be covered. Such coverage may be effected by obtaining an insurance policy ...."
The Appellate Division determined that plaintiff's corporation falls into this category. "Moreover, Workers' Compensation Law § 54 (6) (c) provides that corporations, such as plaintiff's, whose sole employee is an executive officer who owns 100% of the stock, need not purchase workers' compensation insurance for the employee." White v. Metropolitan Opera Assn., Inc. , 148 A.D.3d at 20, 44 N.Y.S.3d 412.
Plaintiff asserts that she meets the six qualifications as enumerated in Bill S3353, thereby establishing, as a matter of law, that she is not the Met's employee for purposes of the Workers' Compensation Law. Plaintiff alleges that the legislative history indicates that Bill S3353 was enacted to remove her in particular from the provisions in the Workers' Compensation Law. Furthermore, plaintiff argues that the plain words of the statute preclude any proposed argument by the Met relating to the common law definition of special employee. Therefore, according to plaintiff, as this new legislation establishes that plaintiff was not the Met's employee for purposes of the Workers' Compensation Law, the exclusive remedy provision is inapplicable and this defense should be dismissed. In opposition, the Met concedes that plaintiff was successful in passing in what it refers to as the " ‘Wendy White Law,’ a special-purpose law affecting only Plaintiff ...." Rychik affirmation in opposition, ¶ 2. However, the Met argues that the "Wendy White Law" does not affect the common law doctrine of the special employee defense and that factual questions remain as to whether plaintiff was a special employee of the Met. It reiterates that the Wendy White Law, "which only affects Workers [sic] Compensation Law, does not alter Plaintiff's status as a special employee of the Met." Memo of law at 7.
In addition, the Met argues that pursuant to the decision in White v. Metropolitan Opera Assn., Inc. ,148 A.D.3d 13, 44 N.Y.S.3d 412, the Appellate Division already determined, as the law of the case, that questions of fact remain and that the Met should be able to present the special employment defense. The Met continues that it was the Met, and not Wendy White, Inc., that controlled and directed plaintiff's work.
Plaintiff also moves for partial summary judgment on the issue of liability, arguing there are no liability issues remaining for trial. In support of this contention, plaintiff points to the Met's amended answer whereby the Met "admit[s] that the Met was negligent and that negligence caused Plaintiff to fall during its production of the opera Faust." Plaintiff's Exhibit 3, Amended Verified Answer, ¶ 49. Plaintiff asserts that, by virtue of its Amended Answer, the Met withdrew all other defenses to liability.
In opposition, in addition to plaintiff's possible status as a special employee, the Met argues that a question of fact remains as to whether plaintiff meets the sixth qualification as listed in the Wendy White Law. As noted above, Bill S3353 is applicable when six factors are met. In the last factor, plaintiff is required to establish that "here is no workers' compensation claim established as compensable by the workers' compensation board that was filed by the musician or person for such accident." According to the Met, the record indicates that plaintiff made an application to the New Jersey Division of Workers' Compensation and submitted medical records. It states, "[o]ne can draw a conclusion that as a result of Ms. White's application a claim was established as compensable and the Spine Pain Consultants of New York was paid." Rychik affirmation in opposition, ¶ 14. The Met is seeking further discovery on this issue. DISCUSSION
CPLR 3211 (b) -Second Affirmative Defense/Exclusive Remedy Provision
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." CPLR 3211 (b). On a motion to dismiss an affirmative defense pursuant to CPLR 3211 (b), "the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed. A defense should not be stricken where there are questions of fact requiring trial." 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542, 935 N.Y.S.2d 23 (1st Dept. 2011) (citations omitted). Furthermore, plaintiff bears the "heavy burden of showing that the defense is without merit as a matter of law." Pugh v. New York City Hous. Auth. , 159 A.D.3d 643, 643, 74 N.Y.S.3d 522 (1st Dept. 2018) (internal quotation marks and citation omitted).
As a result of the recent enactment of Bill S3353, plaintiff now moves to dismiss the Met's second affirmative defense asserting that the action is barred by the exclusive remedy provision in the Workers' Compensation Law. " Workers' Compensation Law § 11 ...restrict[s] an employee from suing his or her employer ...for an accidental injury sustained in the course of employment." Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357, 850 N.Y.S.2d 359, 880 N.E.2d 845 (2007). As amended in 1986, the term "employee" includes professional musicians and performing artists. However, performing artists who, by written contract, are "stipulated to be an employee of another employer covered by this chapter," are excluded from workers' compensation coverage. Workers' Compensation Law § 2 (4).
"For purposes of the Worker's Compensation Law, a person may be deemed to have more than one employer- a general employer and a special employer." James v. Crystal Springs Water, 164 A.D.3d 660, 661, 81 N.Y.S.3d 553 (2d Dept. 2018) (internal quotation marks and citations omitted). A special employment relationship is found where there is a "working relationship with the injured plaintiff sufficient in kind and degree so that the third party ...may be deemed plaintiff's employer." Fung v. Japan Airlines Co., Ltd. , 9 N.Y.3d at 359, 850 N.Y.S.2d 359, 880 N.E.2d 845.
The Met argues that it should be entitled to assert its affirmative defense that plaintiff's action is barred by the Workers' Compensation Law. According to the Met, even if plaintiff is not the Met's employee under the Workers' Compensation Law, she can still be its special employee. It argues that the Wendy White Law "makes no mention of the common law special employee doctrine, which is entirely unmodified by Plaintiff's special statutory amendment." Rychik affirmation, ¶ 2.
However, this Court is not persuaded by the Met's argument. The legislative intent and language of the Wendy White Law clearly rejects the possibility of any employee/employment relationship between plaintiff and the Met for purposes of Workers' Compensation Law, including the one of special employment. For instance, the memorandum in support of Bill S3353 indicates that its purpose is to "amend the unconsolidated law to clarify that a particular musician ...is not an ‘employee’ of the venue of the performance." The memo clarifies that Bill S3353 is only meant to "remedy an unfair interpretation of law for a particular performer." Further, the statutory language of Bill S3353 specifically indicates that, in connection to the injury occurring on December 17, 2011, plaintiff, whose corporation contracted with the Met for plaintiff's services, does not meet the definition of employee for purposes of the workers' compensation law. It is well settled that, "[i]n interpreting any statute, we are required, first and foremost, to pay heed to the intent of the legislature, as reflected by the plain language of the text ....[M]odification of a statute by implication is disfavored." UMG Recs., Inc. v. Escape Media Group, Inc. , 107 A.D.3d 51, 57, 964 N.Y.S.2d 106 (1st Dept. 2013).
"Where a defendant establishes that a plaintiff is its special employee, it may then claim the protection of workers' compensation exclusivity." Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 596, 906 N.Y.S.2d 67 (2d Dept. 2010). The purpose of applying the special employment doctrine in the context of a workers' compensation claim is to determine whether, after a plaintiff becomes injured on the job, there is an employer/employee relationship that would preclude the employee from commencing a negligence action against that employer. Here, however, there is no need for any additional analysis, as the statutory language explicitly precludes the Met from "claiming the protection of workers' compensation exclusivity," by a special employment relationship or otherwise. Therefore, as a matter of law, on December 17, 2011, plaintiff was not considered an employee of the Met for purposes of the Workers' Compensation Law. Accordingly, as plaintiff's action is not barred by the Workers' Compensation Law, the Met's second affirmative defense is without merit and is dismissed. The Met argues that the decision in White v. Metropolitan Opera Assn., Inc., 148 A.D.3d 13, 44 N.Y.S.3d 412, established, as the "law of the case," that the common-law special employee doctrine is still available as a defense in this motion. However, the Met is mistaken. As previously mentioned, courts apply a special employment analysis to see if someone has become an employee of someone other than her general employer for purposes of Workers' Compensation Law. The First Department in White v. Metropolitan Opera Assn., Inc. held that, on the motion to dismiss, applying any potential employer/employee relationship, including the one of special employment, the Met did not present sufficient evidence that plaintiff was its employee for purposes of Workers' Compensation Law. It noted that by contract, plaintiff was employed by her corporation, and that her corporation met the definition of employer under the Workers' Compensation Law. The Appellate Division held that the Met's documentary evidence did not establish that plaintiff was an employee, as defined in Workers' Compensation Law § 2 (4) and that the Met also failed to submit documentary evidence demonstrating that plaintiff was its special employee. There was no "law of the case," issued by the Appellate Division stating that, regardless of any subsequent motions, outstanding factual questions remain entitling the Met to produce evidence in support of the special employee defense.
The language in White v. Metropolitan Opera Assn., Inc., 148 A.D.3d at 15, 44 N.Y.S.3d 412 describing the procedural history of the motion is a prime example:
"The Met moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), arguing that documentary evidence conclusively established that plaintiff was an employee engaged in the performing arts, as defined by Workers' Compensation Law § 2 (4), or, alternatively, a special employee of defendant, since the Met controlled the manner in which she performed her work, and that therefore her claim was barred by the exclusive remedy provision of Workers' Compensation Law § 11."
Partial Summary Judgment
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v. Waisman , 39 A.D.3d 303, 306, 833 N.Y.S.2d 89 (1st Dept. 2007). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 (2013) (internal quotation marks and citation omitted). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v. Grasso, 50 A.D.3d 535, 545, 858 N.Y.S.2d 23 (1st Dept. 2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v. Griffin , 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590 (2d Dept. 2010) (internal quotation marks and citation omitted).
Plaintiff moves for partial summary judgment on the issue of liability. According to plaintiff, the Met concedes that it was negligent and that its negligence caused plaintiff to fall during her performance.
The Met does not address the issue of negligence but argues that questions of fact remain as to whether plaintiff satisfies the sixth predicate listed in Bill S3353; namely, "whereby there is no workers' compensation claim established as compensable by the workers' compensation board that was filed by the musician or person for such accident." According to the Met, records indicate that a claim and the associated medical records were filed with the New Jersey Division of Workers' Compensation. If a compensable claim was established, plaintiff would not meet the criteria for the "Wendy White Law" and would not be excluded from the definition of "employee‘‘ under the Workers' Compensation Law.
The Court holds that plaintiff has met her burden on summary judgment demonstrating there was "no workers' compensation claim established as compensable" and that, in opposition, the Met failed to raise a triable issue of fact. Plaintiff stated that she neither asked nor consented to payment from the Met's compensation carrier. Further, she initially filed a claim with Wendy White, Inc.'s compensation carrier in New Jersey because this is where she lived. The record indicates that, although plaintiff filed a claim in New Jersey, this was denied and ultimately dismissed on August 4, 2014 for failure to prosecute. The Met's Exhibit B at 29. This Court also notes that, by definition, the term " ‘Board’ means the workmen's compensation board of the state of New York," not New Jersey. Workers' Compensation Law § 2 (2).
Accordingly, as no liability issues remain for trial, plaintiff's motion for partial summary judgment on liability is granted. CONCLUSION, ORDER AND JUDGMENT
Accordingly, it is hereby
ORDERED that the branch of plaintiff Wendy White's motion seeking to dismiss the second affirmative defense of defendant Metropolitan Opera Association, Inc. is granted; and it is further
ORDERED that the branch of plaintiff's motion seeking partial summary judgment on the issue of liability is granted; and it is further
ORDERED that the action shall continue; and it is further
ORDERED that a conference will be held on June 24, 2019, at 11am, in Part 17; and it is further
ORDERED that all discovery shall be completed on or before September 23, 2019; and it is further
ORDERED that plaintiff shall file a Note of Issue for trial on the issue of damages on or before September 27, 2019.