NEILL v. National Amusements, Inc., respondent. (2021)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated February 23, 2018.  The order granted the motion of the defendant National Amusements, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On December 22, 2013, the plaintiff allegedly was injured when she slipped and fell on a wet condition in a restroom at a movie theater.  The plaintiff commenced this personal injury action against the defendant National Amusements, Inc. (hereinafter National), which allegedly operated the movie theater, and another defendant.  National moved for summary judgment dismissing the complaint insofar as asserted against it.  In support of the motion, National submitted evidence that it had leased the premises from a nonparty landlord, and that, pursuant to an assignment and assumption of lease agreement dated October 1, 2010, it had assigned all of its rights and obligations under the lease to its wholly owned subsidiary, NAI Entertainment Holdings, LLC. National argued that it did not own, control, occupy, or make special use of the premises and that it could not be held liable for the negligence of its subsidiary.  The Supreme Court granted the motion, and the plaintiff appeals.

“Premises liability, as with liability for negligence generally, begins with duty” (Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 13, 929 N.Y.S.2d 620;  see Church v. Callanan Indus., 99 N.Y.2d 104, 110, 752 N.Y.S.2d 254, 782 N.E.2d 50).  Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Reynolds v. Avon Grove Props., 129 A.D.3d 932, 932, 12 N.Y.S.3d 199).  “Where none of these factors are present, a party cannot be held liable for injuries caused by the allegedly defective condition” (Gover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 730, 869 N.Y.S.2d 593;  see Zylberberg v. Wagner, 119 A.D.3d 675, 676, 990 N.Y.S.2d 52).  In addition, liability cannot be solely predicated upon the fact of a parent corporation's ownership of a controlling interest in the shares of its subsidiary (see Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 163, 432 N.Y.S.2d 879, 412 N.E.2d 934).  A parent company will not be held liable for the torts of its subsidiary unless it can be shown that the parent exercises complete domination and control over the subsidiary (see id. at 163, 432 N.Y.S.2d 879, 412 N.E.2d 934;  Nassau County v. Richard Dattner Architect, P.C., 57 A.D.3d 494, 495, 868 N.Y.S.2d 727;  Mitchell v. TAM Equities, Inc., 27 A.D.3d 703, 708, 812 N.Y.S.2d 611).

Here, National established, prima facie, that it did not own, occupy, control, or make special use of the premises where the accident occurred, that the movie theater was being operated by its wholly owned subsidiary, and that it owed no duty of care to the plaintiff (see generally Church v. Callanan Indus., 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50;  Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934;  Reynolds v. Avon Grove Props., 129 A.D.3d 932, 12 N.Y.S.3d 199).  In opposition, the plaintiff failed to raise a triable issue of fact.

In light of our determination, it is not necessary to reach the plaintiff's remaining contention.

Accordingly, the Supreme Court properly granted National's motion for summary judgment dismissing the complaint insofar as asserted against it.

CHAMBERS, J.P., BARROS, WOOTEN and DOWLING, JJ., concur.