Nationwide Mut. Fire Ins. Co. v. Long Island Air Conditioning, Inc.

Decision Date09 November 2010
Citation78 A.D.3d 801,912 N.Y.S.2d 226
CourtNew York Supreme Court — Appellate Division
PartiesNATIONWIDE MUTUAL FIRE INSURANCE COMPANY, etc., plaintiff-respondent, v. LONG ISLAND AIR CONDITIONING, INC., appellant, Christopher Nappe Plumbing & Heating, Inc., et al., defendants-respondents, et al., defendant. (and a third-party action).

Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly, Sarah M. Ziolkowski, and Heather A. Morante of counsel), for appellant.

Sheps Law Group, P.C., Melville, N.Y. (Robert C. Sheps of counsel), for plaintiff-respondent.

Loccisano & Larkin, Hauppauge, N.Y. (Erica L. Ingebretsen of counsel), for defendant-respondent Christopher Nappe Plumbing & Heating, Inc.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.

In a subrogation action, inter alia, to recover damages for breach of contract, the defendant Long Island Air Conditioning, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated June 23, 2009, as granted the motion of the defendant Christopher Nappe Plumbing & Heating, Inc., for summary judgment dismissing the amended complaint insofar as asserted against that defendant, and denied that branch of its motion which was for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted the motion of the defendant Christopher Nappe Plumbing & Heating, Inc., for summary judgment dismissing the amended complaint insofar as asserted against that defendant is dismissed, as the appellant is not aggrieved by that portion of the order ( see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

As a general rule, a corporation which acquires the assets of another corporation is not liable for the torts of its predecessor ( see Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 244, 464 N.Y.S.2d 437, 451 N.E.2d 195). However, a corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed thepredecessor's tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction was entered into fraudulentlyto escape such obligations ( id. at 245, 464 N.Y.S.2d 437, 451 N.E.2d 195; see Hartford Acc. & Indem. Co. v. Canron, Inc., 43 N.Y.2d 823, 825, 402 N.Y.S.2d 565, 373 N.E.2d 364; Kretzmer v. Firesafe Prods. Corp., 24 A.D.3d 158, 805 N.Y.S.2d 340; Matter of AT & S Transp., LLC v. Odyssey Logistics & Tech. Corp., 22 A.D.3d 750, 803 N.Y.S.2d 118; Hansen v. Filtron Mfg. Co., 282 A.D.2d 433, 723 N.Y.S.2d 85). This doctrine is also applicable in breach of contract actions ( see Kretzmer v. Firesafe Prods. Corp., 24 A.D.3d at 158, 805 N.Y.S.2d 340; Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573, 730 N.Y.S.2d 70). For a successor corporation to establish that it is entitled to summary judgment on the ground that it is not liable, it must demonstrate that none of the four aforementioned exceptions applies ( see Meadows...

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  • Ranieri v. Adirondack Dev. Grp., LLC
    • United States
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    ...the assets of another corporation is not liable for the torts of its predecessor.” Nationwide Mut. Fire Ins. Co. v. Long Island A.C., Inc. , 78 A.D.3d 801, 801, 912 N.Y.S.2d 226 (N.Y.App.Div. 2d Dept. 2010) (citing Schumacher v. Richards Shear Co. , 59 N.Y.2d 239, 244, 464 N.Y.S.2d 437, 451......
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