SHORT FORM ORDER. Present: HON. THOMAS P. PHELAN, Justice TRIAL/IAS, PART 14 NASSAU COUNTY

Transcription

1 SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. THOMAS P. PHELAN, Justice MAUREEN KOLMELHAYES, DANIEL HAYES and DANIEL HAYES, as Administrator of the Estate of CHRISTOPHER HAYES, Plaintiffs bring this action to recover for personal injuries sustained by plaintiffs Maureen Kolmel Hayes and infant decedent Christopher Hayes as well as the, alleged wrongful death of infant decedent. against Plaintiff(s), TRIAL/IAS, PART 14 NASSAU COUNTY ORIGINAL RETURN DATE:09/08/03 SUBMISSION DATE: 10/20/03 INDEX No.: /02 SOUTH SHORE CRUISE LINES, INC., NAUTICAL CRUISE LINES, INC., NAUTICAL BELLE CRUISES, INC., NAUTICAL QUEEN CRUISES, INC., CAPTAIN LOU S FLEET and MICHAEL DANON, MOTION SEQUENCE #1,2 Defendant(s). The following papers read on this motion: Notice of Motion ~... 1 CrossMotion... 2 Answering Papers... 3 Reply SurReply... 5 Motion by plaintiffs for an order pursuant to CPLR 5305 and $203 amending the caption of this action to add Mike s Party Boat Corp. and Captain Mike s Inc. as defendants is granted to the extent that Mike s Party Boat Corp. and Captain Mike s Inc. shall be substituted for Captain Lou s Fleet. Crossmotion by defendants to dismiss plaintiffs complaint against all defendants as barred by Workers Compensation Law $11 and 29(6) and imposing sanctions is denied in all respects except that plaintiffs claims against defendant Michael Danon are dismissed.

2 RE: KOLMELHAYES v.. SOUTH SHORE, et al. Page 21 Plaintiff Maureen KolmelHayes was employed by nonparty Majesty Enterprises LLC when on various dates in June and July, 2000 she allegedly sustained injury when during the course of her employment she was exposed to toxic fumes at 395 Woodcleft Avenue, Freeport, NY. Said premises are leased by Majesty from defendant South Shore Cruise Lines, Inc. (South Shore). Majesty operated a casino business utilizing a ship known as the Majesty (Transcript, pp. 5455). Defendant Nautical Cruise Lines, Inc. (Nautical Cruise), with offices at 28 Woodcleft Avenue, Freeport, NY, operates a ship called the Nautical Princess. Defendant Nautical Belle Cruises, Inc. (Nautical Belle), also with offices at 28 Woodcleft Avenue, Freeport, NY, operates a ship called Nautical Belle. Defendant Nautical Queen Cruises, Inc. is the former name of Nautical Belle Cruises, Inc. Defendant Captain Lou s Fleet is a trade name used by Mike s Party Boat Corp. (Mike s) and Captain Mike s Inc. (Captain Mike s). Mike s operate a ship called Captain Lou VI, and Captain Mike s operates a ship called Captain Lou VII. Both Mike s and Captain Mike s have offices at 33 Woodcleft Avenue, Freeport, NY. Defendant Michael Danon is principal shareholder, president and director of Majesty, defendant Nautical Cruise, defendant Nautical Belle, Mike s and Captain Mike s. By their complaint plaintiffs allege, inter alia, that defendants each engaged in the use, handling, storage and/or disposal of dangerous toxic chemicals including, but not limited to, epoxy, glue, resin, TlO thinner containing xylene, methylamyl ketone and ethyl benzene which were negligently allowed to seep, leak, drain, vaporize and pour onto the premises located at 395 Woodcleft Avenue (see, e.g., Complaint at l/ ). Plaintiff Maureen KolmelHayes has previously sought and received Workers benefits against her employer Majesty. Defendants crossmotion to dismiss is addressed first since if successful, plaintiffs amend would be rendered academic. Compensation motion to Defendants contend that since defendant Danon is a coemployee of plaintiff Maureen Kolmel Hayes, her recovery against him is barred by the Workers Compensation Law. Workers Compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as coemployees, at the time of injury (citation omitted) (Macchirole v. Giamboi, 97 NY2d 147). Since it is undisputed that Danon was plaintiff Maureen KolmelHayes boss at the relevant time, he is clearly entitled to the protection afforded by the exclusivity provision of the Workers Compensation Law regardless of his status with regard to any other named defendant (Id.). Indeed, plaintiffs do not dispute defendant Danon sentitlement to dismissal of Maureen Kolmel

3 RE: KOLMELHAYES v. SOUTH SHORE, et al. Page3; Hayes claim and consent to dismissal of all plaintiffs claims against him. Plaintiffs claims are accordingly dismissed against defendant Danon without costs. Regarding the remaining defendants, they proffer no rational basis for extension of the exclusivity protection of the Workers Compensation Law for their benefit. There is no dispute that each of the corporate defendants are distinct legal entities. As a consequence, the exclusivity provisions of the Workers Compensation Law simply do not apply to them regardless of the fact that they may be owned by the same principal (O Connor v. Snencer (1997) Investment Ltd. Partnership, AD2d, 2003 NY App.Div. LEXIS [2nd Dept.]; Laudisio v. Diamond D Const. Corn., AD2d_, 765 NYS2d 720; Richardsons v. Benoit s Elec., 254 AD2d 798). Having denied dismissal of plaintiffs claims against all defendants other than Danon, sanctions are denied. Insofar as defendants by their reply papers seek to assert additional theories for dismissal, they are not properly before the court and are rejected. Arguments advanced for the first time in reply papers are entitled to no consideration by a court entertaining a summary judgment motion (Lumberman s Mu&d Cas. Co. v. Morse Shoe Co., 218 AD2d 624, 626). However, notwithstanding the principle that multiple summary judgment motions in the same action are generally disfavored, under the circumstances of this case, defendants may again seek summary judgment at the conclusion of all disclosure (see, Detko v. McDonald s Rests., 198 AD2d 208,209). Resolution of plaintiffs motion to amend is predicated upon the holding and rationale of the Appellate Division, Second Department, in Ober v. Rye Town Hilton, 159 AD2d 16, as applied to the factual circumstances of this case. A somewhat detailed recitation of underlying facts in Ober is warranted. Plaintiff in Ober sued to recover for personal injuries sustained in a certain hotel on July 28, On May 2, 1986, plaintiff s process server delivered the surnrnons and complaint to a person in an office within the hotel premises. Plaintiff named the Rye Town Hilton (Rye) as defendant but such an entity did not exist. An answer was nevertheless served by a law firm purporting to represent the named defendant. However, while denying that Rye was a foreign corporation and that it operated the subject hotel, the answer did not contain any affirmative defense that Rye did not exist as a legal entity at all or that it lacked capacity to be sued. The answer merely asserted a claim of lack of jurisdiction. On July 25, 1988, three days before the Statute of Limitations would expire, plaintiff served a summons and complaint naming The Hilton Hotel Corporation a/k/a The Rye Town Hilton as defendant. Thirtyfour days later, on August 29, 1988, the same attorneys which appeared for

4 RE: KOLMELHAYES v. SOUTH SHORE, et al. Page Rye appeared for Hilton Hotels Corporation (Hilton) by moving to dismiss the complaint on the ground that Hilton had been added as a party defendant without court leave. Plaintiff crossmoved (1) to amend the caption to name Hilton as party defendant, and (2) for a default judgment against Hilton. 4; Taking pains to distinguish an amendment of pleadings which corrects the misidentification of an existing defendant from an amendment which adds a new defendant, plaintiff Ober s crossmotion was characterized as a motion to amend the complaint to correct the misnomer. Analyzed as such, plaintiff was granted the amendment, but denied entry of a default against Hilton. Hilton was denied dismissal of the complaint. In so holding, the court cited the well settled general rule governing leave to amend to correct a misnomer of a party: Generally such an amendment should be granted where (1) there is evidence that the correct defendant (misnamed in the original process) had in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought (citations omitted). (Id., at p.20) The court found jurisdiction to have been obtained without regard to plaintiff s first attempt at service since the second attempt was made upon the Secretary of State. More importantly, for purposes of the pending motion by plaintiffs KolmelHayes, the Second Department found an absence of prejudice reasoning as follows: The attorneys who appeared on behalf of The Rye Town Hilton admitted that The Rye Town Hilton was a mere trade name, with no independent existence. Given the indisputable fact that an attorney cannot represent a thing which does not exist, it must be inferred that the attorneys who served an answer on behalf of The Rye Town Hilton did so in the course of their representation of some other party. Furthermore, it must be inferred, in the absence of proof to the contrary, that the real party on whose behalf this original answer was served was, in fact, the party which the plaintiffs now seek permission to name, and on whose behalf the same attorneys have appeared, i.e., Hilton Hotels Corporation. Of further significance to resolution of the pending motion is the Second Department s reasoning in denying plaintiff Ober a default judgment against Hilton. When Hilton did not timely answer the second complaint served upon the Secretary of State, the court reasoned that since Hilton had, in fact, appeared by the service of a first answer in 1986, albeit under a misnomer it could not be found to be in default for failing to timely answer. In the present case, following plaintiffs service of its summons and complaint naming, among others, Captain Lou s Fleet as a party defendant, counsel for plaintiffs received correspondence from an attorney dated November 6,2002 which began:

5 RE: KOLMELHAYES v. SOUTH SHORE, et al. Page We are in receipt of your Summons and Complaint herein naming South Shore Cruise Lines, Inc., Nautical Cruise Lines, Inc., Nautical Belle Cruises, Inc., Captain Lou s Fleet and Michael Danon as defendants. By now you should have received our Answer wherein we represent each said defendant. (underscoring added) The letter continued by renaming each defendant and clarifying their status. Notably, counsel for defendants wrote as follows with regard to named defendant Captain Lou s Fleet TO OUT knowledge, Captain Lou s Fleet is not an entity at all, but rather a trade named used by the corporate owners of the two vessels named Capt. Lou. Vessel Capt. Lou VI is berthed at 23A Woodcleft Avenue, Freeport, New York. Its office is 33 Davison Avenue, Oceanside, New York. Vessel: Capt. Lou VII is berthed at 23A Woodcleft Avenue, Freeport, New York. Its office is at 33 Davison Avenue, Oceanside, New York. 5; By answer dated November 7,2002 counsel formally appeared for all defendants including nonentity Captain Lou s Fleet which, as he and defendants were obviously aware, actually consists of two corporate entities. Just as in Ober v. Rve Town Hilton, defendants answer in this action does not include any affhrnative defense that Captain Lou s Fleet does not exist as a legal entity or that it lacked capacity to be sued. In fact, Captain Lou s Fleet, like its codefendants, do not even assert any jurisdictional defense and their time to do so is long since passed. While all defendants in this action do assert as an affhrnative defense that defendants are not proper parties to this action, this is clearly not related to the nonexistence of Captain Lou s Fleet as a legal entity. As revealed by the November 6, 2002 correspondence as well as defendants crossmotion, this defense is predicated upon the vagueness of plaintiffs complaint and all defendants claimed entitlement to the protection of the Workers Compensation exclusivity provision. Under the circumstances, the conclusion is inescapable that Captain Mike s Inc. and Mike s Party Boat Corp. (1) in fact appeared by the November 7, 2002 answer, albeit under a misnomer (Id.), (2) specifically acknowledged together with their counsel, that they were aware of the actual identities of the two corporate entities identified by the misnomer, and (3) voluntarily submitted to the jurisdiction of the court by appearing without either asserting an affirmative defense of lack of jurisdiction or moving to dismiss on jurisdictional grounds (see CPLR 321 l(e)). 1 The opening paragraph of the November 6,2002 letter appears mistaken insofar as it purports to have been sent after service of defendants answer dated November 7,2002. In any event, the letter and answer were sent and received nearly simultaneously.

6 RE: KOLMELHAYES v. SOUTH SHORE, et al. Page Accordingly, while the circumstances of this action are most unusual, including the existence of a single misnomer identifying two corporate entities, plaintiffs have demonstrated their entitlement to amend the complaint to substitute Mike s Party Boat Corp. and Captain Mike s Inc. in place of Captain Lou s Fleet. Consistent with the foregoing, the title of this action is amended to read as follows: MAUREEN KOLMELHAYES, DANIEL HAYES and DANIEL HAYES, as Administrator of the Estate of CHRISTOPHER HAYES, against SOUTH SHORE CRUISE LINES, INC., NAUTICAL CRUISE LINES, INC., NAUTICAL BELLE CRUISES, INC., NAUTICAL QUEEN CRUISES, INC., MIKE S PARTY BOAT CORP. and CAPTAIN MIKE S, INC., Plaintiffs complaint is deemed amended accordingly. Plaintiffs shall further particularize their claims against all defendants in the amended Bill of Particulars to be served upon completion of disclosure as previously directed during the July 9, 2003 conference (see footnote #2 at page 7 of counsel for defendants Affirmation in Support of CrossMotion and In Opposition, dated September 9, 2003). This decision constitutes the order of the court. Plaintiffs, Defendants. 6; Dated: /d/943 v V, \ry J.S.C.