Opinion
2012-12-28
Pia THOMAS, Plaintiff–Appellant, v. DUNKIRK RESORT PROPERTIES, LLC, Defendant–Respondent, et al., Defendants.
Law Offices of Eugene C. Tenney, Buffalo (Nathan C. Doctor of Counsel), for Plaintiff–Appellant. Goldberg Segalla LLP, Buffalo (Kathleen J. Martin Of Counsel), for Defendant–Respondent.
Law Offices of Eugene C. Tenney, Buffalo (Nathan C. Doctor of Counsel), for Plaintiff–Appellant. Goldberg Segalla LLP, Buffalo (Kathleen J. Martin Of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action to recover damages for injuries she allegedly sustained during the course of her employment at a hotel owned by defendant Dunkirk Resort Properties, LLC (Dunkirk Resort) and managed by her employer, nonparty S & K Hospitality, LLC (S & K). She now appeals from an order granting Dunkirk Resort's motion for summary judgment dismissing the complaint against it.
Supreme Court erred in granting Dunkirk Resort's motion insofar as it contended that it was an out-of-possession landlord and thus was not responsible for the allegedly dangerous condition that caused plaintiff's injuries. “To begin, we reject the out-of-possession landlord standard as applied by the court ... as no leasehold was created by the agreement” between Dunkirk Resort and S & K ( Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219,rearg. denied19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780). Although that agreement is called a “Lease Operating Agreement,” such a designation alone does not make it a lease ( see Feder v. Caliguira, 8 N.Y.2d 400, 404–405, 208 N.Y.S.2d 970, 171 N.E.2d 316;Women's Interart Ctr., Inc. v. New York City Economic Dev. Corp., 97 A.D.3d 17, 21, 944 N.Y.S.2d 137). Rather, it is a management agreement concerning the hotel ( see generally Matter of Davis v. Dinkins, 206 A.D.2d 365, 366–368, 613 N.Y.S.2d 933,lv. denied85 N.Y.2d 804, 626 N.Y.S.2d 756, 650 N.E.2d 415;Slutzky v. Cuomo, 114 A.D.2d 116, 118, 498 N.Y.S.2d 550,appeal dismissed68 N.Y.2d 663, 505 N.Y.S.2d 1027, 496 N.E.2d 240). In addition, Dunkirk Resort's own submissions raise a triable issue of fact whether it was indeed an out-of-possession landlord, inasmuch as it maintained its principal address at the hotel ( see generally Kolmel–Hayes v. South Shore Cruise Lines, Inc., 23 A.D.3d 530, 530–531, 806 N.Y.S.2d 649;Massucci v. Amoco Oil Co., 292 A.D.2d 351, 352, 738 N.Y.S.2d 386). In sum, “[v]iewing all of the evidence in the light most favorable to the plaintiff, as we must on this motion for summary judgment, we cannot say ... that, as a matter of law, [Dunkirk Resort] relinquished complete control of the [hotel] to [S & K]” ( Gronski, 18 N.Y.3d at 381, 940 N.Y.S.2d 518, 963 N.E.2d 1219).
With respect to the alternative ground for affirmance advanced by Dunkirk Resort ( see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241), namely, that it should have been granted summary judgment based on the exclusivity provision of Workers' Compensation Law § 11, we conclude that it failed to meet its burden of establishing the applicability of that dispositive defense as a matter of law ( see generally Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 594–595, 906 N.Y.S.2d 67). Although Dunkirk Resort and S & K have the same two members, one of those members testified at his deposition that the two companies were formed for different purposes, have their own bank accounts, and file separate tax returns ( see Longshore v. Davis Sys. of Capital Dist., 304 A.D.2d 964, 965, 759 N.Y.S.2d 204;Wernig v. Parents & Bros. Two, 195 A.D.2d 944, 945–946, 600 N.Y.S.2d 852), and there is no evidence that either company is involved in the day-to-day operations of the other ( see Samuel, 75 A.D.3d at 595, 906 N.Y.S.2d 67). We thus conclude that triable issues of fact remain with respect to whether Dunkirk Resort is the alter ego of S & K and therefore entitled to the protection of Workers' Compensation Law § 11 ( see Shelley v. Flow Intl. Corp., 283 A.D.2d 958, 960, 724 N.Y.S.2d 244,lv. dismissed96 N.Y.2d 937, 733 N.Y.S.2d 375, 759 N.E.2d 374).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendant Dunkirk Resort Properties, LLC is denied and the complaint against it is reinstated.