Beeker v. Islip U-Slip, LLC

• Decision Date: 12 October 2016
• Citation: 2016 N.Y. Slip Op. 06673,143 A.D.3d 749,39 N.Y.S.3d 76
• Parties: Jeffrey BEEKER, respondent, v. ISLIP U–SLIP, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 749

39 N.Y.S.3d 76

2016 N.Y. Slip Op. 06673

Jeffrey BEEKER, respondent,

v.ISLIP U–SLIP, LLC, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2016.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, NY (Angelo M. Bianco of counsel), for appellants.

Rosenberg & Gluck, LLP, Holtsville, NY (Matthew H. Bligh of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County(Molia, J.), dated July 10, 2014, which denied their motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed, with costs.

On October 14, 2008, the plaintiff allegedly sustained physical injuries when he fell while descending an exterior staircase at a commercial warehouse owned, at the time, by the defendantIslip U–Slip, LLC(hereinafter Islip U–Slip).At the time of the accident, the plaintiff was employed by nonparty Raymours Furniture Company, Inc.(hereinafter RFC), which stored furniture for delivery at the warehouse, and the defendantRaymour & Flanigan Properties, LLC(hereinafter RFP), had entered into a contract to purchase the warehouse.After the plaintiff commenced this personal injury action, the defendants moved for summary judgment dismissing the amended complaint.They argued that Islip U–Slip owed no duty to the plaintiff because it was an out-of-possession landlord, and RFP was either a joint venture with or an alter ego of the plaintiff's employer, RFC, and therefore the exclusivity provisions of the Workers' Compensation Law applied.

The Supreme Court denied the defendants' motion, and we affirm.

The defendants failed to establish, prima facie, that the action insofar as asserted against RFP was barred by the plaintiff's receipt of Workers' Compensation benefits from his employer.In this regard, the defendants came forward with no evidence to suggest the existence of either a joint venture or an alter ego relationship between RFP and the plaintiff's employer (seeMasley v. Herlew Realty Corp.,45 A.D.3d 653, 654, 846 N.Y.S.2d 252;Mournet v. Educational & Cultural Trust Fund of Elec. Indus.,303 A.D.2d 474, 756 N.Y.S.2d 433;Estevez v. We Transp.,286 A.D.2d 365, 728 N.Y.S.2d 707 ).

An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct (seeNotskas v. Longwood Assoc., LLC,112 A.D.3d 599, 976 N.Y.S.2d 176;Lee v. Second Ave. Vil. Partners, LLC,100 A.D.3d 601, 602, 953 N.Y.S.2d 259;Lugo v....