This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff Attorney: Eaton Torrenzano.
Defense Attorney: Herzfeld Ruben.
Yvonne Lewis, J.
In the matter sub judice, it is alleged that the plaintiff, Mr. Edward Simon, after exiting the offices of distributor Lorenz Schneider Co., Inc., his employer, fell and sustained injuries as a result of icy conditions in the defendant's, PABR ASSOCIATES, LLC's (hereinafter, PABR) parking lot. The defendant, a holding company also owned by Mr Simon's employer's owners, has the same managing member and CEO, no offices or employees, and is insured under the same insurance policy. PABR notes that Mr. Simon testified at his deposition that he never observed any icy conditions either prior to or at the time of his fall; Mr. Simon applied for and received Workers' compensation benefits for his injuries; and, it, PABR, had leased the subject premises to Yorkshire Food Sales, Corp., who had assumed all duties with regards to its maintenance, as evidenced by specifically referenced lease provisions. PABR adds that 11 of the Workers' Compensation Law specifically renders it the exclusive remedy of an employee injured in the course of his or her employment. In addition, case law establishes that the protection conferred thereby to employers extends to those companies that are the employer's "alter ego" as determined by "relevant elements," such as same stockholders, same directors and officers, insurance under the same policy, engagement in the same or related enterprises, and/or etc. (citing, Thompson v. Janowitz Construction Corp., et. al., 301 A.D.3d 588, 754 N.Y.S.2d 50 [2d Dept., 2003]).
Accordingly, PABR, by its attorney, has moved this court for an order, pursuant to CPLR 3112, to summarily dismiss the plaintiff's complaint in its entirety since PABR is an out-of-possession landlord who had not retained control over the premises or was contractually obligated to repair or maintain the same, had not created or had actual or constructive notice of any alleged dangerous condition, and the plaintiff received the exclusive benefits of New York Workers' Compensation Law.
In opposition, Mr. Simon contends that 1. PABR's motion (filed 8/21/07; partially served 8/13/07 8/17/07) is untimely since it was not filed within sixty (60) days of the filing of the Note of Issue herein (filed 6/12/07) and made without any demonstration of good cause for said delay; 2. not only was PABR not an out-of-possession landlord, but it knew or should have known that fluctuating temperatures following a heavy snowstorm with accumulations of twelve point two (12.2) inches would cause the snow that had both amassed on the canopy overhang in front of plaintiff's employer's business and that it had piled on the sides of the parking lot to form into ice, thereby creating the hazardous condition of which it had actual and/or constructive knowledge; and, 3. since PABR was neither the alter ego of or engaged in a joint venture with his employer, the exclusivity provision of the Workers' Compensation Law is inapplicable. Mr. Simon asserts that issues of fact exists with regards to whether or not PABR is his employers' alter ego inasmuch as the case law makes it clear that "[i]n order for two corporations to constitute alter egos, there must be direct intervention by the parent in the management of the subsidiary to such an extent that "the subsidiary's paraphernalia of incorporation, directors and officers' are completely ignored. " (Citing, Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879 ; Lowendahl v. Baltimore Ohio R.R. Co., 247 A.D. 144, 287 NYS 62 [1st Dept., 1936], aff'd 272 N.Y. 360). In addition, Mr. Simon stresses that the defendant by failing to include any certificates of incorporation, corporate minutes, shareholders' agreements, filings for each entity, or tax returns in support of its motion, has failed to provide sufficient proofs to establish the existence of a joint venture or alter ego relationship with his employer. Finally, Mr. Simon argues that an issue of fact exists as to whether or not PABR is an out-of-possession landlord given that 1. the affidavit of Mr. Bruce Brown wherein he avowed that as the managing partner of PABR and a shareholder and CEO of Lorenz Schneider Co., Inc., he is required to make decisions that directly affect the two entities; and, 2. Yorkshire Food Sales Corp., which PABR alleges was contractually obligated to maintain the subject premises, is also owned by Mr. Bruce Brown and Ms. Patricia Ihlenburg, the co-owners of Lorenz Schneider Co., Inc. and PABR.
In reply, counsel for PABR asserts that the issue of untimeliness is mere subterfuge inasmuch as ". . . the final day for service of the motion for summary judgment was August 11, 2007, but the motion is dated August 13, 2007. . . .However, plaintiff's counsel failed to advise the court that August 11, 2007 was a Saturday. Pursuant to 25-a of New York's General Construction Law. . . . when any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or public holiday, such an act may be done on the next succeeding business day'. " The "additional papers" allegedly served on August 17, 2007 was merely a letter providing a copy of an exhibit that had been inadvertently omitted from the motion papers. Lastly, the Appellate Division, Second Department, in Davidson v. Brisman, et al, 40 A.D.3d 574, 833 N.Y.S.2d 406 (2d Dept., 2007), recently held that "[i]t is undisputed that Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, required that the defendant's motion for summary judgment be served within 60 days of the filing of the note of issue. " PABR's counsel then reiterated his bases; i.e, the criteria hereinabove set forth which explains why PABR should be considered the alter ego of Lorenz Schneider Co., Inc.. Counsel also highlighted the insufficiency of Mr. Simon's counsel's affirmation to substantiate the notion that PABR was not an out-of-possession landlord or that work was done on behalf of PABR at the Lorenz Schneider Co., Inc. premises since he is not a person with personal knowledge of those facts, and especially in light of the fact that PABR is nothing more than a holding company for two pieces of property. Finally, PABR contends that the case law only establishes liability in instances when snow piles created by the defendant melted and re-froze, reflecting negligence in regard to snow removal. However, here snow was piled to the side and back of the parking lot whereas the plaintiff fell in front of his offices and hence not as a consequence of snow removal. In any event there is no evidence that snow melted off the canopy much less that PABR had actual and/or constructive knowledge of any icy condition created thereby.
"A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v. Grevasioi, 81 N.Y.2d 1062, 601 N.Y.S.2d 463; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra ). " In weighing a motion for summary judgment, the court must accept as true the non-moving party's evidence and make all justifiable inferences' in the non-moving party's favor" [and] the standard for review is "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. " (Anderon v. Liberty Lobby, Inc., supra ).
The defense aptly noted that 25-a of New York's General Construction Law clearly provides that "when any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or public holiday, such an act may be done on the next succeeding business day," as well as the Appellate Division, Second Department's holding in Davidson v. Brisman, et al, 40 A.D.3d 574, (2d Dept., 2007), supra, that "[i]t is undisputed that Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, required that the defendant's motion for summary judgment be served within 60 days of the filing of the note of issue. " (See also Crawford v. Liz Claiborne, Inc., 844 N.Y.S.2d 273 (1st Dept., 2007). In light of the preceding, there can be no doubt that PABR served its summary judgment motion within the proper time frame in the matter sub judice.
As a general rule, liability for a dangerous condition on real property must be predicated on ownership, occupancy, control, special use of the property, or the right or obligation to maintain the property (See Ellers v. Horwitz, et. al., 36 A.D.3d 849, 831 N.Y.S.2d 417; citing Morgan v. Chong Kwan Jun, 30 A.D.3d 386, 817 N.Y.S.2d 325; Marrone v. South Shore Props., 29 A.D.3d 961, 816 N.Y.S.2d 530; and Franks v. G H Real Estate Holding Corp., 16 A.D.3d 619). Here, the plaintiff has made no such demonstration on the part of PABR. In fact, the undisputed fact is that maintenance of the subject parking lot was contractually transferred to yet a third entity, Yorkshire Food Sales, Corp.. More importantly, however, is the fact that the plaintiff's irrefuted deposition established that he never observed any icy conditions either prior to or at the time of his fall from which constructive notice could be inferred, much less that he or anyone else ever gave actual notice of any such condition to anyone responsible for the maintenance of the parking lot. In the event that plaintiff's employer (or Yorkshire Food Sales Corp.) had received notice (actual or constructive) of a defective condition, it would have been difficult to argue that PABR had not simultaneously obtained the same given the coincidence of their personnel, albeit by different job titles per entity.
The law with regards to the sufficiency of proofs in support of summary judgment is clear; "[j]ust as the burden of a party opposing a motion for summary judgment is not met merely by repeating or incorporating by reference the allegations contained in the pleadings or bills of particulars ( Indig v. Finklestein,23 N.Y.2d 728), neither is that burden met by the unsubstantiated assertions or speculations of plaintiff's counsel that a defendant may have breached a possible duty of care ( Fileccia v. Massapequa Gen. Hosp.,63 N.Y.2d 639; Zuckerman v. City of New York,49 N.Y.2d 557). However, the fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion (See Alvarez v. Prospect Hosp., supra, citing Olan v. Farrell Lines,64 N.Y.2d 1092). In this case, the suggestions that iciness resulted from ...