FRANCES TAITT PLAINTIFF RESPONDENT v. THE SHIPWRECK TAVERN INC DEFENDANT APPELLANT (2018)

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

FRANCES J. TAITT, PLAINTIFF–RESPONDENT, v. THE SHIPWRECK TAVERN, INC., DEFENDANT–APPELLANT.

CA 18–00016

Decided: June 29, 2018

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (DONALD DIBENEDETTO OF COUNSEL), FOR DEFENDANT–APPELLANT. BOUSQUET HOLSTEIN, PLLC, SYRACUSE (RYAN S. SUSER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

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 AD3d 1246, 1248–1249 [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 AD3d 1524, 1525 [4th Dept 2016] ).

Mark W. Bennett

Clerk of the Court

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