PICILLO v. IMG WORLDWIDE, INC.

Full title: JUSTIN PICILLO, Plaintiff, v. IMG WORLDWIDE, INC. IMG FASHION, 7TH ON…

Court: Supreme Court of the State of New York, New York County

Date published: Mar 14, 2008

2008 N.Y. Slip Op. 30780 (N.Y. Sup. Ct. 2008)

Opinion

0117589/2006.

March 14, 2008.

For Plaintiff: Robert J. Epstein, Esq., New York, NY.

For Defendants: IMG Worldwide, IMG Fashion, Wilson, Elser, Moskowitz, Edelman Dicker LLP, By: Joseph A. D'Avanzo, Esq., White Plains, NY.

PAUL G. FEINMAN, J.:

The following papers, numbered 1 to were read on this motion to/for

PAPERS NUMBERED

Notice of Motion/Petition — Affidavits — Exhibits Answering Affidavits — Exhibits (Memo) Replying Affidavits (Reply Memo)

Cross-Motion: Yes [x] No

Upon the foregoing papers, it is

ORDERED that this motion is granted in part and denied in part in accordance with the annexed decision and order and it is further

ORDERED that the movant shall serve a copy of this decision and order on all parties with notice of its entry and upon [x] the Clerk of the Court, 60 Centre St., Basement; [x] the Trial Support, 60 Centre St., Room 158; [x] and the DCM Clerk, 80 Centre Street, Room 102.

DECISION AND ORDER

Counsel for other parties did not submit papers.

Papers considered in review of this motion to dismiss: Papers Numbered

Notice of Motion and Affidavits Annexed .............. 1 Plaintiff's Opposition to Notice of Motion ........... 2 Reply to Opposition of Motion to Dismiss ............. 3

Defendant IMG Worldwide, Inc. moves pursuant to CPLR 3211(a) (1), (7), and (8) to dismiss the complaint and all cross-claims against it, IMG Fashion, and 7^th on Sixth, Inc. Plaintiff opposes the motion. The other defendants did not appear on the motion. For the reasons set forth below, the motion is granted in part and denied in part.

Factual Allegations

Plaintiff Justin Picillo alleges that on August 28, 2005, he sustained severe personal injuries as the result of being thrown from the motorcycle on which he was traveling after it hit a defect in the roadway at Bryant Park.(Not. of Mot., Ex. A, Ver. Compl.). Plaintiff alleges that defendants breached their duty to maintain Bryant Park in a reasonably safe condition (Not. of Mot., Ex. A, Ver. Compl. ¶¶ 87-89). Plaintiff also claims that defendants should be found liable for Labor Law violations.

Sometime in August 2004, International Merchandising Corporation (IMC) d/b/a 7^th on Sixth, was granted a permit by Bryant Park Restoration Corporation for the purposes of holding events of multiple fashion shows, sponsor activities and related ancillary activities in Bryant Park on the following dates: September 8-15, 2004, February 2005, and September 2005.¹ This series of activities, in part, is referred to as Fashion Week (Not. of Mot., Ex. D).

1 The actual dates for the February 2005 and September 2005 Fashion Week were not provided in this agreement, although the agreement indicated that 7^th on Sixth must propose the actual dates in writing, which will then be subject to the approval of Bryant Park (Not. of Mot., Ex. D).

According to John Raleigh, IMG's Assistant Secretary, IMC, is a wholly-owned subsidiary of IMG (Not. of Mot., Ex. C, [hereinafter Raleigh Aff.] ¶ 2). He avers that IMG was not involved in the September 2005 Fashion Week that allegedly caused plaintiff's accident. Specifically, he contends that, IMG did not stage, organize, sponsor, promote, direct, supervise or control any of the events that took place in Bryant Park during the September 2005 Fashion Week (Raleigh Aff. ¶ 5). He also states that, IMG Fashion was not in existence at the time of plaintiff's motorcycle accident² (Raleigh Aff. ¶ 6). According to Mr. Raleigh, the name "IMG Fashion" was not filed with the New York Secretary of State until December 22, 2006 (Raleigh Aff. ¶ 6). He further avers that, IMG did not use the name "IMG Fashion" in connection with its business prior to December 22, 2006 (Raleigh Aff. ¶ 6, 7).

2 According to the Assumed Name Certificate issued by New York Department of State, IMG, as of December 22, 2006, does business under the assumed name of "IMG Fashion" (Not. of Mot., Ex. E).

John Raleigh, IMG's Assistant Secretary, is also the Senior Vice President and Assistant Secretary of IMC. According to Mr. Raleigh, it was IMC, d/b/a 7^th on Sixth, not IMG, that organized and staged the September 2005 Fashion Week as shown on the agreement (Raleigh Aff. ¶ 5; Not. of Mot., Ex. D). In Mr. Raleigh's affidavit, he states that IMG does not own an entity known as 7^th of Sixth, Inc., and that to his knowledge, an entity bearing that name sold its assets to IMC in 2001 and is no longer in business³ (Raleigh Aff. ¶ 9).

3 According to the Assumed Name Certificate issued by New York Department of State, IMC, as of July 17, 2001, does business under the assumed name of "7^th on Sixth," a division of IMC (Not. of Mot., Ex. F).

IMG contends that it is not an appropriate defendant in this action. On March 14, 2007, defendant IMG notified plaintiff that the incorrect parties were named as defendants in the lawsuit, and without admitting liability, offered plaintiff the opportunity to substitute the correct party (Not. of Mot., Ex. G). IMG specifically stated that if plaintiff seeks to sue the producer of the September 2005 Fashion Week, that IMG would stipulate to accept an amended complaint, naming IMC as a defendant and dropping IMG, IMG Fashion, and 7^th on Sixth as defendants (Not. of Mot., Ex. G). Plaintiff refused IMG's offer, and on April 25, 2007, commenced a second action, naming IMC as a defendant (Not. of Mot., Ex. H, Ver. Compl; Aff. in Opp. to Not. of Mot., Ex. C). On May 10, 2007, after plaintiff had commenced the second action, defendant IMG again requested plaintiff to discontinue the initial action against IMG, IMG Fashion, and 7^th on Sixth, Inc. (Not. of Mot., Ex. I). Plaintiff refused to discontinue the earlier action, naming IMG as a defendant.

IMG now moves on three grounds for dismissal of the complaint and all cross-claims as against it, IMG Fashion, and 7^th on Sixth, Inc. First, IMG seeks dismissal of the action based on documentary evidence to establish that there is no colorable claim against IMG, IMG Fashion, or 7^th on Sixth, Inc. (CPLR 3211 [a] [1]). Second, IMG seeks dismissal on the ground that the New York Labor Law violations alleged by plaintiff fail to state a cause of action (CPLR 3211 [a] [7]). Third, IMG seeks to have the complaint dismissed as against 7^th on Sixth, Inc. for plaintiff's alleged failure to serve process on this defendant, and to serve it within one hundred twenty days of the filing of the summons and complaint in the action (CPLR 3211 [a] [8]; CPLR 306-b).

Legal Analysis

Generally, on a motion to dismiss brought pursuant to CPLR 3211, the court must "accept the facts as alleged in the complaint as true, and accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory" ( Morgenthow Latham v Bank of N.Y. Co., Inc., 305 AD2d 74, 78, lv denied 100 NY2d 512, quoting Leon v Martinez, 84 NY2d 83, 88; see also, Bishop v Maurer, 33

AD3d 497, 498 [1^st Dept. 2006]). The court, however, is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are clearly contradicted by documentary evidence or where the legal conclusions are unsupportable based upon the undisputed facts ( Igarashi v Higashi, 289 AD2d 128 [1^st Dept. 2001]; Robinson v Robinson, 303 AD2d 234, 235 [1^st Dept. 2003]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1^st Dept. 1999], af f'd 94 NY2d 659, [2001]).

On a motion to dismiss pursuant to CPLR 3211 (a) (1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law ( Leon v Martinez, 84 NY2d at 87-88). The defendant has the burden of demonstrating that the documentary evidence conclusively resolves all factual issues and that plaintiff's claims fail as a matter of law ( Robinson v Robinson, 303 AD2d at 235; Fortis Fin. Servs, LLC., v Fimat Futures USA, Inc., 290 AD2d 383 [1^st Dept. 2002]). Generally, liability for a dangerous or defective condition on property is hinged upon establishing ownership, control or special use of the property ( Turrisi v Ponderosa, Inc., 179 AD2d 956, 957 [3^rd Dept. 1992]; see also, Kiselis v Speculator Chamber of Commerce, 234 AD2d 677, 678 [3^rd Dept. 1996]).

In this case, IMG has not produced documentary evidence sufficient to establish that it did not organize, direct, supervise or control any of the events that took place in Bryant Park during the September 2005 Fashion Week. Plaintiff offers materials from IMG's website and other affiliated websites as evidence that IMG was involved in the production of the September 2005 Fashion Week⁴ (Aff. in Opp. to Not. of Mot., Ex.F-Q). According to IMG's web site, IMG Worldwide published a statement on September 23, 2005, concerning the Fashion Week event that took place in September 2005. The article entitled "Did You Know? A summary of things you might not know about IMG's global activities," states that "IMG Fashion's 7^th on Sixth organized the very successful Olympus Fashion Week Spring 2006 collections in New York City earlier this month." (Aff. in Opp. to Not. of Mot., Ex.G). Plaintiff argues that this statement is IMG's own admission that IMG Fashion was in existence prior to the date of plaintiff's accident (Aff. in Opp. to Not. of Mot.). Further, plaintiff offers as proof of IMG's involvement, a statement posted on IMG's website from IMG and 7^th on Sixth concerning the September 2005 Fashion Week at Bryant Park, which advised interested persons to "please feel free to contact us with questions: 7^th on Sixth/IMG." The statement also included IMG and 7^th on Sixth's contact information, including address, telephone number, and email address (Aff. in Opp. to Not. of Mot., Ex.I). Plaintiff produces a statement on IMG's and 7^th on Sixth's website, which indicates that, 7^th on Sixth was created in 1993 to accomplish several purposes, including organizing, centralizing, and modernizing the American Collections (Aff. in Opp. to Not. of Mot., Ex. H, J, K). This same web page also contains a statement indicating that IMG acquired 7^th on Sixth in July 2001 from the Council of Fashion Designers of America (Aff. in Opp. to Not. of Mot., Ex. H). Finally, plaintiff produces a web page advertisement in which IMG requests that, anyone interested in events and opportunities with either IMG Fashion or 7^th on Sixth, contact its Director of Special Projects (Aff. in Opp. to Not. of Mot., Ex.Q).

4 None of the defendants have objected to the accuracy of the content of the plaintiff's downloading of the defendant's websites.

The materials produced by plaintiff in opposition to IMG's motion to dismiss present significant contradictions to IMG's contentions that it was not involved in the production of the event that allegedly caused plaintiffs injuries. IMG's contention that it was IMC alone that was responsible for the events of Fashion Week, as indicated by its contract with Bryant Park, has been sufficiently refuted to permit plaintiff an opportunity to have the defendants answer and move the case forward into the discovery phase. While the initial agreement was entered into by Bryant Park and IMC, IMG's own statement on its website credits the success of the September 2005 Fashion Week in Bryant Park to "IMG Fashion's 7^th on Sixth." Furthermore, as indicated in the materials produced by plaintiff, IMG, as the parent company of IMC, has considerable and significant ties to the activities of IMC. IMG fails to meet its burden, since the documentary evidence it submits does not conclusively resolve all of the factual issues in the case, including its own potential liability. Thus, its motion to dismiss based on documentary evidence is denied.

As to IMG's second basis for dismissal of plaintiff's complaint. It is well-settled that, in assessing a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause upon which relief may be granted, any facts in the complaint must be accepted as true and construed in the light most favorable to the plaintiff ( 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152; Bovino v Village of Wappingers Falls, 215 AD2d 619, 620 [2nd Dept. 1995]). The court must consider the factual allegations in plaintiffs complaint to determine whether plaintiff can succeed upon any reasonable understanding of the facts ( Manfro v McGivney, 11 A.D.3d 662, 663 [2nd Dept. 2004]).

When evidentiary material is considered, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co. 40 NY2d at 636; Rappaport v International Playtex Corp., 43 AD2d 393, 394-395 [3^rd Dept. 1974]). Dismissal of plaintiff's complaint should not be granted unless it can be shown that no significant dispute exists ( Guggenheimer v Ginzburg, 40 NY2d at 275; Rappaport, 43 AD2d at 394-395).

Labor Law § 200 codifies the common law duty of an owner or employer to provide employees with a safe place to work ( Jock v Fien, 80 NY2d 965, 967; Yearke v Zarcone, 57 AD2d 457, 459 [4^th Dept.], lv denied 43 NY2d 643). This includes providing reasonable and adequate protection for the lives, health, and safety of employees (Lab. Law § 200). To establish liability under Labor Law § 240 (1), a plaintiff must demonstrate a violation of the statute, and that the violation was the proximate cause of plaintiff's injuries ( Blake v Neighborhood Hous. Servs of N.Y. City, Inc., 1 NY3d 280, 287).

The legislative history and precedent of the court demonstrate that the primary purpose of New York's Labor Law §§ 200, 240, and 241 was the protection of workers ( Mordkofsky v V.C.V, Dev. Corp., 76 NY2d 573, 577). In order to invoke the protections of the Labor Law and to come within the class of persons for whom liability is imposed against contractors, owners and their agents, "a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure, and that he was hired by someone, be it owner contractor or their agent" ( Whelen v Warwick Val. Civic Social Club, 47 NY2d 970, 971).

In this case, plaintiff was a motorist traveling on the alleged defective roadway during the September 2005 Fashion Week. Plaintiff was not an "employee" within the meaning of the statute, nor does he fall within the class of persons sought to be protected by the legislature when it enacted the statute. Therefore, the statute is inapplicable in this case, and IMG's motion to dismiss under CPLR 3211 (a) (7) is granted as to plaintiff's third cause of action only. This court need not reach plaintiff's contention that the defendants converted the park into a construction site, and is therefore, liable under provisions of New York's Labor Law.

IMG's third ground for dismissal is predicated upon CPLR 3211(a) (8) and CPLR 306-b for failure to serve process on defendant 7^th on Sixth. It moves pursuant to CPLR 3211 (a) (8) to asserting that the court lacks personal jurisdiction over the defendant, since it was not personally served in the action in compliance with CPLR 306-b. Service of process must be made on the defendant within one hundred twenty days after the filing of the summons and complaint (CPLR 306-b). Where service is not made upon a defendant in this time period, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon a showing of good cause or in the interest of justice, the court may extend the time for answer (CPLR 306-b). In this case, according to the court file, the complaint was filed with the County Clerk on November 24, 2006. Plaintiff submits an affidavit of service of the summons and complaint on defendant 7^th on Sixth, Inc. (Aff. in Opp. to Not. of Mot., Ex. R). According to the affidavit, service of process on defendant 7^th on Sixth, Inc. was effected on February 2, 2007 (Aff. in Opp. to Not. of Mot., Ex. R), thus it service was made within the one hundred twenty day period required by statute. Plaintiff's attorney, Mr. Epstein, avers that he personally delivered a true copy of the summons and complaint to this defendant via Ms. Erica Booze, an individual who represented herself as a legal assistant in the legal department at the defendant IMG, IMG Fashion and 7^th on Sixth's place of business located at 420 West 45^th Street, New York, New York⁵ (Aff. in Opp. to Not. of Mot., Ex. R). Mr. Epstein further states that the receptionist witnessed the service of process, and in fact, was the individual who produced Ms. Booze as a person authorized to accept service on behalf of IMG, IMG Fashion, and 7^th on Sixth. (Aff. in Opp. to Not. of Mot., Ex. R). Ms. Booze signed, initialed, and dated her acceptance of service of process for each of the these three defendants (Aff. in Opp. to Not. of Mot., Ex. R).

5 Defendants IMG, IMG Fashion and 7^th on Sixth all maintain an office and place of business at 420 West 45^th Street, New York, NY (Not. of Mot., Ex. A, Ver. Compl. ¶ 5, 10, 17).

Where personal service is made on a defendant, neither CPLR 306-b or CPLR 311(personal service upon a corporation) require a copy of the summons and complaint to be filed with the County Clerk's office to give effect, or to otherwise complete service of process. Therefore, this court finds that plaintiff's affidavit of service serves as adequate proof that service of process was proper on defendant 7^th on Sixth. The court understands that IMG's position is that 7^th on Sixth, Inc. no longer exists, and that 7^th on Sixth is the assumed name of IMG's wholly-owned subsidiary, IMC. Nonetheless, the affidavit of service shows that all necessary parties were served. Accordingly,

ORDERED that the branch of the motion to dismiss brought pursuant to CPLR 3211 (a) (1) is denied; and it is further

ORDERED that the branch of the motion to dismiss brought pursuant to CPLR 3211 (a) (7) is granted to the extent of dismissing all of the plaintiff's causes of action premised on Labor Law §§ 200, 240 and 241 and the Clerk of Court shall, upon proof of service of notice entry of this order, enter judgment accordingly; and it is further

ORDERED that the remainder of the complaint is severed and continued under this index number; and it is further

ORDERED that the branch of the motion to dismiss brought pursuant to CPLR 3211 (a) (8) and CPLR 306-b is denied.

ORDERED that the moving defendants are to serve an answer in the time allotted by the CPLR and shall do so electronically along with a request to convert this action "e-filing"; and it is further

ORDERED that to the extent that if the plaintiff has not yet complied with the court's 2/21/08 order directing him to provide the Differentiated Case Management (DCM) Clerk with a Bill of Particulars in order for a case scheduling order to issue, then the DCM Clerk shall set this matter down for a preliminary conference forthwith; and it is further

ORDERED that the movant shall, within fifteen days of entry of this order, serve a copy of this decision and order on all parties, the DCM Clerk (80 Centre St., Rm. 102), the Trial Support Office (60 Centre, Rm. 158) and the Clerk of Court (60 Centre St., Bsmt.) with notice of entry; and it is further

ORDERED that movant shall serve on all parties, the DCM Clerk, the Trial Support Office, the Clerk of Court and the Motion Support Office (60 Centre, Rm. 119) a copy of the duplicate original of the decision and order of Justice Deborah Kaplan's dated October 31, 2007 which appears not to have been scanned by motion support and/or entered as disposed by the case management system.

This constitutes the decision and order of the court.