        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1274
CA 12-00358
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


PIA THOMAS, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme   Court, Erie County (Michael
F. Griffith, A.J.), entered November 29,   2011 in a personal injury
action. The order granted the motion of    defendant Dunkirk Resort
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 without costs, the motion of defendant
Dunkirk Resort Properties, LLC is denied and the complaint against it
is reinstated.

     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 NY3d 374, 379, rearg denied 19 NY3d 856).
Although that agreement 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; Women’s Interart Ctr., Inc. v New York City
Economic Dev. Corp., 97 AD3d 17, 21). Rather, it is a management
                                 -2-                          1274
                                                         CA 12-00358

agreement concerning the hotel (see generally Matter of Davis v
Dinkins, 206 AD2d 365, 366-368, lv denied 85 NY2d 804; Slutzky v
Cuomo, 114 AD2d 116, 118, appeal dismissed 68 NY2d 663). 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 AD3d 530, 530-531; Massucci v Amoco Oil
Co., 292 AD2d 351, 352). 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 NY3d at 381).

     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 NY2d 539, 545-546), 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
AD3d 594, 594-595). 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 AD2d 964, 965; Wernig v Parents & Bros. Two, 195
AD2d 944, 945-946), and there is no evidence that either company is
involved in the day-to-day operations of the other (see Samuel, 75
AD3d at 595). 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 AD2d 958, 960, lv dismissed 96
NY2d 937).




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
