| Campone v Pisciotta Servs., Inc. |
| 2011 NY Slip Op 06819 [87 AD3d 1104] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Joseph Campone et al., Respondents, v Pisciotta Services,Inc., et al., Appellants, et al., Defendant. (And a Third-PartyAction.) |
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Ronald K. Friedman, PLLC, Fishkill, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Pisciotta Services,Inc., and Salvatore J. Pisciotta, Jr., appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Dutchess County (Sproat, J.), dated April 22, 2010, as denied their motionfor summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
On January 25, 2006, Joseph Campone (hereinafter the injured plaintiff) allegedly wasinjured when he slipped and fell on a patch of ice on the sidewalk abutting the entrance of abuilding located in Poughkeepsie (hereinafter the subject premises). The injured plaintiff and hiswife commenced this action against, among others, the owner of the subject premises, PisciottaServices, Inc. (hereinafter PSI), and the sole shareholder of PSI, Salvatore J. Pisciotta, Jr.(hereinafter Pisciotta).
The Supreme Court properly denied the motion of PSI and Pisciotta (hereinafter together thedefendants) for summary judgment dismissing the complaint insofar as asserted against them.The defendants made a prima facie showing of their entitlement to judgment as a matter of lawby submitting evidence that they neither created nor had actual or constructive notice of the icepatch on which the injured plaintiff allegedly slipped and fell (see Brown v Outback Steakhouse, 39AD3d 450 [2007]; Schmidt vDiPerno, 25 AD3d 545, 546 [2006]; Price v EQK Green Acres, 275 AD2d 737,737-738 [2000]). In opposition, however, the plaintiffs submitted sufficient evidence to raise atriable issue of fact as to whether the defendants had actual notice of an alleged recurrentdangerous condition regarding water runoff from the roof of the subject premises, which pooledin the area where the injured plaintiff fell, and were, thus, chargeable with constructive notice ofeach specific occurrence of the condition (see Schmidt v DiPerno, 25 AD3d at 546; Mondello v DiStefano, 16 AD3d637, 639 [2005]; Loguidice v Fiorito, 254 AD2d 714 [1998]; Migli vDavenport, 249 AD2d 932, 933 [1998]).
Further, the Supreme Court properly denied that branch of the defendants' motion which wasfor summary judgment dismissing the complaint insofar as asserted against Pisciotta,individually. Pisciotta demonstrated his prima facie entitlement to judgment as a matter of law by[*2]showing that he did not own the subject premises. In thisregard, Pisciotta produced a copy of the 1994 deed transferring title of the subject premises fromhimself to PSI. In opposition, the plaintiffs raised a triable issue of fact as to whether the courtshould disregard the corporate form and pierce the corporate veil in order to achieve equity."Generally, a plaintiff seeking to pierce the corporate veil must show that 'complete domination'was exercised over a corporation with respect to 'the transaction attacked,' and 'that suchdomination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff'sinjury' (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141[1993]; see TNS Holdings v MKI Sec. Corp., 92 NY2d 335, 339 [1998])" (Williams v Lovell Safety Mgt. Co.,LLC, 71 AD3d 671, 671-672 [2010]). "Additionally, 'the corporate veil will be piercedto achieve equity, even absent fraud, [w]hen a corporation has been so dominated by anindividual or another corporation and its separate entity so ignored that it primarily transacts thedominator's business instead of its own and can be called the other's alter ego' (Matter ofIsland Seafood Co. v Golub Corp., 303 AD2d 892, 893 [2003] [internal quotation marksomitted]; see Austin Powder Co. v McCullough, 216 AD2d 825, 827 [1995]; PebbleCove Homeowners' Assn. v Fidelity N.Y. FSB, 153 AD2d 843 [1989])" (id. at 672).Here, the plaintiffs presented evidence that PSI was dissolved in 1997 and that in January 2005,Pisciotta, the sole shareholder of PSI, instructed the injured plaintiff to pay rent for the subjectpremises directly to him rather than to PSI. Under the circumstances, the defendants were notentitled to summary judgment dismissing the complaint insofar as asserted against Pisciotta.
The defendants' remaining contentions are either not properly before this Court or withoutmerit. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.