Opinion
810 CA 18–00016
06-29-2018
Frances J. TAITT, Plaintiff–Respondent, v. The SHIPWRECK TAVERN, INC., Defendant–Appellant.
COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (DONALD DIBENEDETTO OF COUNSEL), FOR DEFENDANT–APPELLANT. BOUSQUET HOLSTEIN, PLLC, SYRACUSE (RYAN S. SUSER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (DONALD DIBENEDETTO OF COUNSEL), FOR DEFENDANT–APPELLANT.
BOUSQUET HOLSTEIN, PLLC, SYRACUSE (RYAN S. SUSER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she sustained when she fell through a hole in a deck located on premises owned by defendant and leased to her employer. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Contrary to its contention, defendant failed to meet its initial burden of establishing that it did not affirmatively create the dangerous condition that resulted in plaintiff's injury, and, in any event, plaintiff raised an issue of fact (see Boice v. PCK Dev. Co., LLC, 121 A.D.3d 1246, 1248–1249, 995 N.Y.S.2d 250 [3d Dept. 2014] ). Contrary to its alternative contention, defendant failed to meet its initial burden of establishing that it functioned as an alter ego of plaintiff's employer (see Cleary v. Walden Galleria LLC, 145 A.D.3d 1524, 1525, 44 N.Y.S.3d 305 [4th Dept. 2016] ).