Opinion
No. 2019-10056 (Index No. 28261/08)
06-01-2022
Frank Samoleski, etc., respondent, v. Revival Home Health Care Agency, et al., defendants, Caring Home Care, Inc., appellant.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, NY (James M. Skelly and Robert Fein of counsel), for appellant. Law Offices of Michael A. Cervini, P.C. (The Altman Law Firm, PLLC, Woodmere, NY [Michael T. Altman], of counsel), for respondent.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, NY (James M. Skelly and Robert Fein of counsel), for appellant.
Law Offices of Michael A. Cervini, P.C. (The Altman Law Firm, PLLC, Woodmere, NY [Michael T. Altman], of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.
DECISION & ORDER
In a consolidated action, inter alia, to recover damages for personal injuries, the defendant Caring Home Care, Inc., appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated April 15, 2019. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
This consolidated action was commenced, inter alia, to recover damages for personal injuries based on allegations, among other things, that the negligence of the defendants caused or contributed to the injuries of the plaintiff's decedent. After discovery, the defendant Caring Home Care, Inc. (hereinafter the defendant), moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it could not be held liable because it was an entity that did not exist on the date of the alleged injuries sustained by the plaintiff's decedent. In the order appealed from, dated April 15, 2019, the Supreme Court denied the motion, and the defendant appeals.
The defendant established, prima facie, through the submission of its certificate of incorporation, that it was not incorporated until a date subsequent to the date on which the plaintiff's decedent sustained her injuries (see 61st & Park Ave. Corp. v Port Morris Tile & Marble Corp., 208 A.D.2d 397, 397; Rivera v Citgo Petroleum Corp., 181 A.D.2d 818, 819). However, the defendant failed to eliminate all triable issues of fact as to whether there had been a de facto merger between itself and a predecessor entity, or whether it was a mere continuation of that predecessor entity, sufficient to render it liable for the alleged torts of its alleged predecessor in the instant action (see Nationwide Mut. Fire Ins. Co. v Long Is. A.C., Inc., 78 A.D.3d 801, 802; see also Menche v CDx Diagnostics, Inc., 199 A.D.3d 678, 680-681; Shea v Salvation Army, 169 A.D.3d 1081, 1082; cf. Washington Mut. Bank, F.A. v SIB Mtge. Corp., 21 A.D.3d 953, 954-955).
In light of our determination, we need not consider the defendant's remaining contention.
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
DILLON, J.P., ROMAN, MALTESE and GENOVESI, JJ., concur.