DECISION AND ORDER Petro’s Beverage Co. Inc. d/b/a Anchor Beverage II (hereinafter Petro’s Beverage) and defendant Oropallo’s Wine & Liquor, Inc. (hereinafter Oropallo) are located adjacent to one another in a building owned by defendant VTLM Enterprises LLC, which building is located at 376 Dix Avenue in the Town of Queensbury, Warren County. On February 14, 2017, plaintiff Robert D. Holcomb (hereinafter plaintiff) — an employee of Petro’s Beverage — slipped and fell in the parking lot while leaving work and broke his ankle. He thereafter received workers’ compensation benefits from the insurance carrier for Petro’s Beverage. On January 9, 2020, plaintiff commenced this action seeking to recover damages for his injuries, with plaintiff Shelly Holcomb — his wife — asserting a derivative claim for loss of consortium. VTLM Enterprises, defendant VTLM, LLC and defendant William Petrosino (hereinafter collectively referred to as VTLM) served an answer on February 28, 2020, asserting a cross claim against Oropallo for indemnification. Oropallo then served an answer on June 12, 2020, asserting cross claims against VTLM for indemnification and apportionment of liability. Discovery has not yet begun. Presently before the Court is (1) VTLM’s motion to dismiss the complaint and Oropallo’s cross claims; and (2) Oropallo’s cross motion for summary judgment to dismiss the complaint and VTLM’s cross claims. The motion and cross motion will be considered ad seriatim. VTLM’s Motion At the outset, VTLM has failed to indicate whether it is moving to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) or, alternatively, moving for summary judgment to dismiss the complaint under CPLR 3212. That being said, insofar as its arguments appear directed toward summary judgment and plaintiffs have submitted opposition in this regard, counsel for the parties were apprised during oral argument that the motion would be treated as one for summary judgment under CPLR 3212 (see Tomhannock, LLC v. Roustabout Resources, LLC, 115 AD3d 1074, 1075 [2014]; Matter of Dashnaw v. Town of Peru, 111 AD3d 1222, 1224 [2013]). All counsel consented to such treatment of the motion and, further, agreed to rest upon the papers submitted. Turning now to the merits of the motion, VTLM first contends that the complaint must be dismissed with respect to VTLM, LLC, as it “does not exist as a corporate entity related to the subject premises.” To the extent that this aspect of the motion has not been opposed, it is hereby granted with the caption amended accordingly. VTLM next contends that Workers’ Compensation Law §29 (6) requires dismissal of the complaint as against VTLM Enterprises and Petrosino. This statute provides that “[t]he right to compensation or benefits under [the Workers' Compensation Law] shall be the exclusive remedy to an employee…when such employee is injured…by the negligence or wrong of another in the same employ…(while acting within the scope of his or her employment).” Under Workers’ Compensation Law §29 (6), where a “defendant [is] both the owner of the building and an officer of the corporation which employed plaintiff,…his [or her] responsibilities to provide [plaintiff] with a safe place to work [are] merged[, and p]laintiff’s receipt of workers’ compensation benefits is [his or her] exclusive remedy” (Parrinello v. Mancuso, 251 AD2d 856, 857 [1998]; see Garelle v. Geinitz, 145 AD3d 1383, 1384 [2016]; McFarlane v. Chera, 211 AD2d 764, 764 [1995]). Indeed, this protection “‘also extends to entities which are alter egos of the entity which employs…plaintiff’” (Ciapa v. Misso, 103 AD3d 1157, 1159 [2013], quoting Samuel v. Fourth Ave. Assoc., LLC, 75 AD3d 594, 594-595 [2010]; accord Buchwald v. 1307 Porterville Rd., LLC, 160 AD3d 1464, 1465 [2018]). “A defendant may establish itself as the alter ego of a plaintiff’s employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity” (Buchwald v. 1307 Porterville Rd., LLC, 160 AD3d at 1465 [internal quotation marks and citation omitted]; see Quizhpe v. Luvin Constr. Corp., 103 AD3d 618, 619 [2013]). “Factors relevant to the determination of that issue include whether the two entities share a common purpose, have integrated or commingled assets, share a tax return, are treated by the owners as a single entity, share the same insurance policy, and share managers or are owned by the same person” (Buchwald v. 1307 Porterville Rd., LLC, 160 AD3d at 1465). Here, VTLM has submitted the affidavit of Petrosino, who states that he is “the sole shareholder, CEO and president of Petro’s Beverage…and also the sole member of VTLM Enterprises.” Petrosino further states as follows: “VTLM [Enterprises] has no employees of its own. “As VTLM [Enterprises] does not have employees, it has a joint venture/affiliate agreement with Petro’s Beverage to provide the labor for the maintenance and upkeep of 376 Dix Avenue. “As part of the joint venture/affiliate agreement, [Petro's Beverage] maintains and repairs the premises of 376 Dix Avenue, including plowing, salting, clearing the parking lot and shoveling the walkway for the entirety of 376 Dix Avenue. “Under the joint venture/affiliate agreement, Petro’s Beverage…provides the labor and supervises the employees conducting the maintenance; VTLM [Enterprises] then compensates Petro’s Beverage for its related labor expenses[.] “As the sole shareholder and president of Petro’s Beverage, I sign all paychecks for all employees at Petro’s Beverage…. “As the sole member of VTLM [Enterprises], I am also the signatory on all checks written on behalf of VTLM. “All employees of Petro’s Beverage…ultimately report to me. “VTLM [Enterprises] and Petro’s Beverage share principals, officers, and an insurance policy.” To the extent that VTLM has not submitted a copy of the joint venture/affiliate agreement between VTLM Enterprises and Petro’s Beverage, the Court is left with Petrosino’s statements which establish — in sum — that VTLM Enterprises and Petro’s Beverage are owned by the same person and financially interdependent. While Petrosino indicates that the two companies share an insurance policy, he fails to specify what type of policy and again — a copy of the policy is not provided. Notably, also missing is any indication that VTLM Enterprises and Petro’s Beverage share a common purpose. “‘The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, and the evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference’” (Framan Mech., Inc. v. State Univ. Constr. Fund, 182 AD3d 947, 948 [2020], quoting Andrew R. Mancini Assoc., Inc. v. Mary Imogene Bassett Hosp., 80 AD3d 933, 935 [2011] [internal quotation marks and citations omitted]). Mindful of this standard, the Court finds that VTLM has failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint as against VTLM Enterprises and Petrosino (see Salinas v. 64 Jefferson Apts., LLC, 170 AD3d 1216, 1219 [2019]; Samuel v. Fourth Ave. Assoc., LLC, 75 AD3d at 595). While such failure “‘requires a denial of the motion, regardless of the sufficiency of the opposing papers’” (Framan Mech., Inc. v. State Univ. Constr. Fund, 182 AD3d at 948, quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [citation omitted]), the Court nonetheless notes that — were the papers to be considered — plaintiffs have succeeded in raising a triable issue of fact.1 Plaintiffs contend that Petro’s Beverage and VTLM Enterprises do not share a common purpose, as one is a beverage center and the other is a property management company. In this regard, plaintiffs state that “[t]he operation of Oropallo’s on the premises shows that VTLM Enterprises…has business and responsibilities outside of those associated with Petro’s Beverage.” Plaintiffs further contend that the motion for summary judgment is premature, as Petrosino’s affidavit comprises the sole evidentiary foundation for the motion, reciting matters exclusively within his knowledge. Indeed, such an affidavit “should not, without more, form the basis for an award of summary judgment before the opposing party has had an opportunity to conduct discovery” (Reohr v. Golub Corp., 242 AD2d 850, 851 [1997]; see Loder v. Nied, 89 AD3d 1197, 1201 Stockwell v. Town of New Berlin, 69 AD3d 1266, 1268 [2010]). With respect to that aspect of the motion which seeks dismissal of Oropallo’s cross claims, while this relief is included in VTLM’s notice of motion, issue had not yet been joined with respect to Oropallo when the notice of motion was filed and the papers do not — nor could they — include any arguments in support of such relief. Accordingly, this aspect of the motion is likewise denied. Based upon the foregoing, VTLM’s motion is granted to the extent that the complaint is dismissed as against VTLM, LLC and the motion is otherwise denied, without prejudice to renewal. Oropallo’s Cross Motion Turning now to Oropallo’s cross motion for summary judgment, Oropallo first contends that the complaint must be dismissed as against it because it did not control the premises in the area of plaintiff’s alleged slip and fall. In support of this contention, Oropallo has submitted a copy of its September 15, 2015 Lease Agreement with VTLM Enterprises, which Agreement has a 5-year term “ending October 30, 2020.”2 This Agreement provides, in pertinent part: “Care of Premises, Grounds: Tenant shall keep the grounds immediately adjoining the premises to be leased neat and clean. Landlord shall be responsible for repairs and maintenance of premises provided that damage is not caused by Tenant. Tenant shall be solely responsible for the proper disposal of trash, garbage, etc. “A party is not liable for injuries caused by dangerous or defective conditions on property unless the party owns, occupies, controls or has special use of the property” (Contreras v. Randi’s Enter., LLC, 126 AD3d 1199, 1200 [2015, Lynch, J., dissenting]; see Giglio v. Saratoga Care, Inc., 117 AD3d 1143, 1144 [2014]; Turrisi v. Ponderosa, Inc., 179 AD2d 956, 957-958 [1992). According to Oropallo, plaintiff alleges having "slipped and fell on ice… as [he] was leaving [his] job at Petro’s Beverage,” and — under the terms of the Lease Agreement — it did not own, occupy, control or have special use of this area. Rather, it was responsible for “keep[ing] the grounds immediately adjoining [its store] neat and clean.” Oropallo further contends that keeping the premises “neat and clean” does not include snow and ice removal, which “is more properly construed under the maintenance obligations of [the Agreement].” Oropallo relies heavily on Turrisi v. Ponderosa, Inc. (supra) (hereinafter Turrisi), wherein the plaintiff slipped and fell in the parking lot of a shopping center after leaving Ponderosa. Just as in this case, “[t]he issue to be resolved [was] whether Ponderosa had possession or control of the parking lot where [plaintiff] sustained her injuries” (id. at 958). In this regard, the Appellate Division, Third Department found as follows: “A review of the lease agreement between [the shopping center owner] and Ponderosa reveals that [the shopping center owner] agreed to maintain the common area in good repair, clean and clear of snow, ice, rubbish and debris, and to keep it properly striped and adequately lighted during normal business hours. Ponderosa’s lease defines the phrase common area as all portions of the shopping center except those parts which are covered by buildings. Ponderosa’s right to use the common area under the lease agreement is not exclusive, but rather shared with [the owner of the shopping center], patrons, repairmen and other tenants of the shopping center. The parking lot area of the shopping center was clearly a common area under the terms of the lease agreement. Ponderosa exercised no control over the parking lot which is evident by its inability to exclude others from this common area. Further, Ponderosa did not have a right of possession to the parking lot, but only a right to use it. Accordingly,…Ponderosa did not possess or control the parking lot area of the shopping center and cannot be held liable for injuries caused by the alleged dangerous condition of the property” (id. at 958; see Shire v. Ferdinando, 161 AD2d 573, 574 [1990], lv denied 76 NY2d 713 [1991]; Balsam v. Delma Eng’g Corp., 139 AD2d 292, 296-297 [1988], lv denied, lv dismissed 73 NY2d 783 [1988]; McGill v. Caldors Inc., 135 AD2d 1041, 1043 [1987]). In contrast to the lease agreement under consideration in Turrisi, the Lease Agreement between Oropallo and VTLM Enterprises does not expressly include snow and ice removal among VTLM Enterprises’ maintenance responsibilities. To that end, it is possible that Oropallo’s obligation to “keep the grounds immediately adjoining [its store] neat and clean” includes snow and ice removal (see Rose v. Kozak, 175 AD3d 1656, 1658 [2019]). The Lease Agreement also fails to define what constitutes “the grounds immediately adjoining [the store].” This is problematic, as the precise location of plaintiff’s slip and fall is unknown. Plaintiff alleges merely that he slipped while leaving his job at Petro’s Beverage, which is located next door to Oropallo’s Wine & Liquor. Viewing the evidence in a light most favorable to plaintiffs and affording them every favorable inference, the Court finds that Oropallo has failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint as against it (compare Turrisi v. Ponderosa, Inc., 179 AD2d at 958). Briefly, while plaintiffs have not submitted opposition to Oropallo’s cross motion, opposition need not be considered in any event given Oropallo’s failure to satisfy its initial burden on the motion (see Framan Mech., Inc. v. State Univ. Constr. Fund, 182 AD3d at 948; Alvarez v. Prospect Hosp., 68 NY2d at 324). Turning now to the remaining aspect of the cross motion, VTLM’s cross claim alleges “[t]hat any injuries or damages…sustained by plaintiffs… as a result of the alleged incident…were sustained in whole or in part by reason of the negligence, want of care or fault of [Oropallo]” and, further, “ [t]hat if it is determined that [VTLM is] liable in any degree to plaintiffs, [VTLM is] entitled to indemnification and/or to have the liability apportioned among and between…defendants in accordance with the applicable law.” Under the circumstances, the Court finds that Oropallo has also failed to make a prima facie showing of its entitlement to summary judgment dismissing the cross claim as a matter of law. In the Lease Agreement, Oropallo specifically “agree[d] to hold [VTLM Enterprises] harmless from any claim as a result of the…provisions [of the Agreement].” Given the issues of fact outlined above, there remains the possibility — even if remote — that Oropallo bears some liability for plaintiff’s slip and fall. Again, while VTLM’s opposition papers need not be considered (see Framan Mech., Inc. v. State Univ. Constr. Fund, 182 AD3d at 948; Alvarez v. Prospect Hosp., 68 NY2d at 324), it nonetheless succeeded in raising an issue of fact. In this regard, VTLM contends — somewhat ironically — that at this early “stage of litigation it is unknown whether any…actions or inactions on the part of [Oropallo] would trigger the hold harmless provision” of the Lease Agreement. Based upon the foregoing, Oropallo’s cross motion for summary judgment is denied in its entirety, without prejudice to renewal. Counsel for the parties are hereby directed to appear for a preliminary conference on November 24, 2020 at 10:00 A.M., with the conference to be conducted virtually. Further instruction in this regard will be provided by the Court under separate cover. Therefore, having considered the Affirmation of Andrea P. Demers, Esq. with exhibits attached thereto, dated May 14, 2020, submitted in support of the motion;3 Memorandum of Law of Andrea P. Demers, Esq., dated May 14, 2020, submitted in support of the motion; Affirmation of Jason A. Frament, Esq. with exhibits attached thereto, dated May 29, 2020, submitted in opposition to the motion; Affidavit of Robert D. Holcomb, sworn to June 1, 2020, submitted in opposition to the motion;4 Memorandum of Law of Jason A. Frament, Esq., dated May 29, 2020, submitted in opposition to the motion; Affirmation of Andrea P. Demers, Esq., dated June 5, 2020, submitted in further support of the motion; Affirmation of Steven V. DeBraccio, Esq. with exhibits attached thereto, dated July 7, 2020, submitted in support of the cross motion; Memorandum of Law of Steven V. DeBraccio, Esq., dated July 7, 2020, submitted in support of the cross motion; Affirmation of Andrea P. Demers, Esq., dated July 17, 2020, submitted in opposition to the cross motion; and Affirmation of Steven V. DeBraccio, Esq., dated July 23, 2020, submitted in further support of the cross motion; and oral argument having been heard on October 16, 2020 with Paul Wein, Esq. appearing on behalf of plaintiffs, Andrea P. Demers, Esq. appearing on behalf of VTLM Enterprises LLC, VTLM, LLC and William Petrosino, and Steven V. DeBraccio, Esq. appearing on behalf of Oropallo’s Wine & Liquor, LLC, it is hereby ORDERED that the motion for summary judgment of defendants VTLM Enterprises LLC, VTLM, LLC and William Petrosino is granted to the extent that the complaint is dismissed as against VTLM, LLC, with the caption amended to read as follows: Robert D. Holcomb and Shelly Holcomb, Plaintiffs v. VTLM Enterprises LLC, William Petrosino and Oropallo’s Wine & Liquor, Inc., Defendants; EF2020-67632; RJI 56-1-2020-0115 ; and it is further ORDERED that the motion is otherwise denied, without prejudice to renewal; and it is further ORDERED that the cross motion for summary judgment of Oropallo’s Wine & Liquor, LLC is denied in its entirety, without prejudice to renewal; and it is further ORDERED that counsel for the parties shall appear for a preliminary conference on November 24, 2020 at 10:00 A.M., with the conference to be conducted virtually. The above constitutes the Decision and Order of the Court. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiffs is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513. Dated: October 27, 2020
