Key Points

  • The First Department, 3-2, reversed the denial of Carsey-Werner's motion to dismiss the negligent hiring, retention and supervision claim and dismissed the complaint against it.
  • The majority held that allegations that Cosby used the Cosby Show set and his star status to impress the plaintiff, without any tortious act on Carsey-Werner premises or with its property, do not plead the employment nexus that Moore v PJT Partners requires.
  • The majority held that B.B. v Cosby (2026) cannot be meaningfully distinguished, and that the nature, not the number, of studio visits may be relevant to the nexus.
  • Justices Gesmer and Kennedy dissented, reading Moore to cover an employee who uses the employer's premises and the prospect of work on its show to gain a victim's trust, and noting that Moore rejected any requirement of a relationship between employer and plaintiff.

A divided New York appeals court on Thursday dismissed a claim that the production company behind "The Cosby Show" negligently supervised Bill Cosby, holding that his alleged use of the show's set to impress a woman he is accused of later drugging and sexually assaulting did not tie the company to the assaults.

The Appellate Division, First Department, ruled 3-2 in an unsigned decision that reversed a Manhattan trial judge and dismissed the complaint against the Carsey-Werner Company LLC. Justices Manzanet-Daniels, who presided, Friedman and Rosado formed the majority. Justice Gesmer, joined by Justice Kennedy, dissented, writing of the majority's central conclusion that "The Court of Appeals has held precisely to the contrary."

The decision limits when an employer can be held answerable because an employee used its workplace to gain a victim's confidence before harming her elsewhere. The majority held that Carsey-Werner's premises or property would have had to serve as the "situs or instrumentality for committing independently tortious or illegal conduct," not merely as a means for Cosby to "impress and possibly bait" the plaintiff.

The plaintiff, identified in court papers as M.P., alleges that she first met Cosby in or around 1987, at his invitation, on the set of the show, whose production and set she says Carsey-Werner "owned, operated, controlled, managed, and/or supervised." According to the dissent's account of the complaint, Cosby told her there that the show wanted to hire her to appear, and potentially sing, on a special episode. She alleges that on "multiple occasions" from 1987 to 1990 he gave her drinks that caused her to pass out, and that she later came to understand he had drugged the drinks and sexually assaulted her while she was unconscious.

Her claim against Carsey-Werner was for negligent hiring, retention and supervision. Under the Court of Appeals' 2023 decision in Moore Charitable Foundation v. PJT Partners, the plaintiff must show, among other things, that the employee acted "on the employer's premises or using property or resources available to the employee only through their status as an employee." Justice Shlomo S. Hagler of Supreme Court, New York County, denied Carsey-Werner's motion to dismiss that claim in an order entered in July 2025.

The majority found the case controlled by B.B. v. Cosby, a 2026 ruling in which the same court dismissed a claim against Carsey-Werner brought by another woman over similar alleged misconduct by Cosby. That plaintiff had never visited the studio. M.P. argued that her visit made the difference, contending that the studio was instrumental to Cosby's grooming of her and to gaining her trust.

The majority disagreed. It wrote that M.P. "does not allege that Cosby assaulted or even touched her on CW's premises or that he used any CW property or resources in committing any tortious act." The court added that "it is not the number of visits to the studio, but rather the nature of those visits that may be potentially relevant" to whether the required connection had been shown.

The majority also distinguished Moore, in which an investment bank employee used the bank's email account, documents and letterhead to carry out a fraud, and a 2022 First Department case against the New York City Ballet, in which employees allegedly shared intimate images of a student at the ballet's school during work hours and on work premises. Each case, the majority wrote, "involved the use of the defendants' property or resources to commit an independently tortious or illegal act." In M.P.'s case, the majority wrote, "plaintiff does not allege that anything remotely illegal or tortious occurred during this one innocuous studio visit."

In dissent, Justice Gesmer wrote that Cosby had used Carsey-Werner's premises "as a backdrop for dangling his claim that The Cosby Show wanted to hire her to appear, and possibly sing, on a special episode." She noted that the plaintiff in Moore was never alleged to have set foot on the bank's premises, and that the banker had used company letterhead and email to lend his scheme an air of legitimacy. "That is no less true here as to plaintiff's allegations that Cosby used The Cosby Show set and potential work on the show to lure plaintiff in so that he could obtain her trust and assault her," she wrote.

Justice Gesmer also rejected the majority's emphasis on M.P.'s lack of any relationship with Carsey-Werner, citing Moore's express holding that such a relationship is not a required element. In a footnote, she characterized the majority as arguing that "an employer can never be found liable for the acts of an employee who causes harm by abusing the position and authority granted by the employer." The complaint, she wrote, alleged that Carsey-Werner let Cosby meet with women alone or without adequate supervision despite notice of his conduct. "It was certainly within the ambit of CW's control to have prohibited Cosby from meeting with women alone or without adequate supervision on CW's premises or in connection with The Cosby Show," she wrote.

Carsey-Werner was represented by Kimberly Klein of Moses & Singer LLP. M.P. was represented by Annette Hasapidis of Hasapidis Law Offices in Scarsdale.

The appeals court directed the clerk to enter judgment dismissing the complaint against Carsey-Werner. The appeal concerned only the production company's motion. Cosby is also named as a defendant in the case caption.