| Thomas v Dunkirk Resort Props., LLC |
| 2012 NY Slip Op 09203 [101 AD3d 1721] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| Pia Thomas, Appellant, v Dunkirk Resort Properties, LLC, Respondent,et al., Defendants. |
—[*1] Goldberg Segalla LLP, Buffalo (Kathleen J. Martin of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Michael F. Griffith, A.J.), enteredNovember 29, 2011 in a personal injury action. The order granted the motion of defendant DunkirkResort Properties, LLC for summary judgment and dismissed the complaint against it.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the motion of defendant Dunkirk Resort Properties, LLC is denied and the complaint against it isreinstated.
Memorandum: Plaintiff commenced this action to recover damages for injuries she allegedlysustained during the course of her employment at a hotel owned by defendant Dunkirk ResortProperties, 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 judgmentdismissing the complaint against it.
Supreme Court erred in granting Dunkirk Resort's motion insofar as it contended that it was anout-of-possession landlord and thus was not responsible for the allegedly dangerous condition thatcaused plaintiff's injuries. "To begin, we reject the out-of-possession landlord standard as applied bythe court . . . as no leasehold was created by the agreement" between Dunkirk Resort andS & K (Gronski v County of Monroe,18 NY3d 374, 379 [2011], rearg denied 19 NY3d 856 [2012]). Although thatagreement is called a "Lease Operating Agreement," such a designation alone does not make it a lease(see Feder v Caliguira, 8 NY2d 400, 404-405 [1960]; Women's Interart Ctr., Inc. v New York City Economic Dev. Corp., 97AD3d 17, 21 [2012]). Rather, it is a management agreement concerning the hotel (seegenerally Matter of Davis v Dinkins, 206 AD2d 365, 366-368 [1994], lv denied 85NY2d 804 [1995]; Slutzky v Cuomo, 114 AD2d 116, 118 [1986], appeal dismissed68 NY2d 663 [1986]). In addition, Dunkirk Resort's own submissions raise a triable issue of factwhether it was indeed an out-of-possession landlord, inasmuch as it maintained its principal address atthe hotel (see generally Kolmel-Hayes vSouth Shore Cruise Lines, Inc., 23 AD3d 530, 530-531 [2005]; Massucci v Amoco OilCo., 292 AD2d 351, 352 [2002]). In sum, "[v]iewing all of the [*2]evidence in the light most favorable to the plaintiff, as we must on thismotion for summary judgment, we cannot say . . . that, as a matter of law, [DunkirkResort] relinquished complete control of the [hotel] to [S & K]" (Gronski, 18 NY3d at 381).
With respect to the alternative ground for affirmance advanced by Dunkirk Resort (seegenerally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]),namely, that it should have been granted summary judgment based on the exclusivity provision ofWorkers' Compensation Law § 11, we conclude that it failed to meet its burden of establishingthe applicability of that dispositive defense as a matter of law (see generally Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594,594-595 [2010]). Although Dunkirk Resort and S & K have the same two members, one of thosemembers testified at his deposition that the two companies were formed for different purposes, havetheir own bank accounts, and file separate tax returns (see Longshore v Davis Sys. of CapitalDist., 304 AD2d 964, 965 [2003]; Wernig v Parents & Bros. Two, 195 AD2d 944,945-946 [1993]), and there is no evidence that either company is involved in the day-to-day operationsof the other (see Samuel, 75 AD3d at 595). We thus conclude that triable issues of fact remainwith respect to whether Dunkirk Resort is the alter ego of S & K and therefore entitled to theprotection of Workers' Compensation Law § 11 (see Shelley v Flow Intl. Corp., 283AD2d 958, 960 [2001], lv dismissed 96 NY2d 937 [2001]). Present—Smith, J.P.,Carni, Lindley, Sconiers and Whalen, JJ.