Ward v Cross County Multiplex Cinemas, Inc.

2009 NY Slip Op 03675 [62 AD3d 466]

May 7, 2009

Appellate Division, First Department

As corrected through Wednesday, July 1, 2009

Olivia Ward, Respondent, v Cross County MultiplexCinemas, Inc., et al., Appellants, et al., Defendant.

—[*1]Law Offices of John W. Manning, Tarrytown (John W. Manning of counsel), forappellants.

Law Offices of Jay H. Tanenbaum, New York (Laurence Warshaw of counsel), forrespondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 18, 2008,which, in an action for personal injuries, denied defendants' motion for summary judgmentdismissing the complaint and granted plaintiff's cross motion for leave to serve a supplementalsummons and amended complaint naming Quincy Amusements, Inc. (Quincy) as a defendant,unanimously reversed, on the law, without costs, defendants' motion granted and the crossmotion denied. The Clerk is directed to enter judgment in favor of defendants dismissing thecomplaint.

The complaint should have been dismissed as against National Amusements, Inc. (NAI), theparent corporation of Quincy, the owner of the theater where plaintiff's accident occurred.Plaintiff fails to allege the type of domination which must be shown to pierce the corporate veilso as to hold NAI liable for the purported negligence of Quincy (see Sheridan Broadcasting Corp. vSmall, 19 AD3d 331 [2005]). Moreover, since defendant Cross County MultiplexCinemas, Inc. (Cross County) had no legally cognizable existence at the time of plaintiff'saccident in February 2004, having merged into Quincy in January 2002, the complaint isdismissed as against it as well.

Nor may plaintiff rely on the relation-back doctrine to assert claims against Quincy. The factthat Quincy is a wholly-owned subsidiary of NAI, without more, does not demonstrate that theyare united in interest (see Achtziger v Fuji Copian Corp., 299 AD2d 946, 948 [2002],lv dismissed in part and denied in part 100 NY2d 548 [2003]). Furthermore, although asurviving corporation succeeds to the liabilities of the merged corporation, Cross County ceasedto exist more than two years prior to plaintiff's accident and thus, Quincy could not haveassumed liabilities which had not yet arisen. Concur—Mazzarelli, J.P., Sweeny, Nardelli,Freedman and Richter, JJ.