Richard Bender, et al., Plaintiffs-Appellants, v. 101 (2011)

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for 101 Productions Ltd., respondent.

DeCicco, Gibbons & McNamara, P.C., New York (William A. Fitzgerald of counsel), for Jumpers Ltd., respondent.

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Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered on or about October 8, 2009, which, to the extent appealed from as limited by the briefs, granted defendant 101 Productions Ltd.'s motion for summary judgment, dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff Richard Bender was hired by the Nederlander Theater Group to, inter alia, move props for a production entitled Jumpers.   He performed this work under the direct supervision of his boss, Ron Knox, of Nederlander.   Plaintiff was injured while working.   We perceive no liability on the part of defendant 101 Productions, Inc. or the technical director, David Benken, who was selected by 101 Productions, and who contracted with defendant Jumpers, LLC, to oversee various aspects of the production of the play.   There is no evidence that Benken had notice of the movement of the prop, undertaken by plaintiff, Knox and a different Jumpers employee, that allegedly caused plaintiff's injuries (see Balaj v Equitable Life Assur.   Socy. of U.S., 211 A.D.2d 487 [1995], lv denied 85 N.Y.2d 811 [1995] ).   Knox testified only that he sought additional men to move a large bed, not the item causing plaintiff's injury, and that he may have spoken to Benken a second time, but nowhere testified that the subject of this possible second conversation concerned the movement of the injury-causing object.

We decline Jumpers' invitation to search the record and find in its favor, since triable issues of fact remain as to whether Jumpers' employee, Denise Grillo, acted negligently.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK