the, alleged wrongful death of infant decedent. Kolmel- Hayes and ...

SHORT FORM ORDER
SUPREME COURT
- STATE OF NEW YORK
Present:
HON. THOMAS P. PHELAN,
Justice
MAUREEN KOLMEL-HAYES, 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.,
CAPTAIN LOU’S FLEET and
MICHAEL DANON, MOTION SEQUENCE #1,2
The following papers read on this motion:
ORIGINAL RETURN DATE:09/08/03
Plaintiff(s), SUBMISSION DATE:
Defendant(s).
Notice of Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..~.............. 1
Cross-Motion ....................................................... 2
Answering Papers..................................................
3
Reply. ................................................................ 4
SurReply .............................................................
TRIAL/IAS, PART 14
NASSAU COUNTY
10/20/03
INDEX No.: 012291/02
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.
Cross-motion 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.
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.
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RE: KOLMEL-HAYES
v.. SOUTH SHORE, et al. Page 21
Plaintiff Maureen Kolmel-Hayes was employed by non-party 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. 54-55).
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/7100-105).
Plaintiff Maureen Kolmel-Hayes has previously sought and received Workers ’ Compensation
benefits against her employer Majesty.
Defendants ’ cross-motion to dismiss is addressed first since if successful, plaintiffs ’ motion to
amend would be rendered academic.
Defendants contend that since defendant Danon is a co-employee 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 co-employees, at the time of injury
(citation omitted) ” (Macchirole v. Giamboi, 97 NY2d 147).
Since it is undisputed that Danon was plaintiff Maureen Kolmel-Hayes ’ 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 ’s entitlement to dismissal of Maureen Kolmel-
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RE: KOLMEL-HAYES v. SOUTH SHORE, et al.
Hayes’ claim and consent to dismissal of all plaintiffs ’ claims against him.
Plaintiffs’ claims are accordingly dismissed against defendant Danon without costs.
Page3;
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 13077 [2nd
Dept.]; Laudisio v. Diamond “D” Const. Corn.,
v. Benoit ’s Elec., 254 AD2d 798).
AD2d_, 765 NYS2d 720; Richardsons
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,
1985. 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. Thirty-four days later, on August 29, 1988, the same attorneys which appeared for
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RE: KOLMEL-HAYES 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 cross-moved
(1) to amend the caption to name Hilton as party defendant, and (2) for a default judgment against
Hilton.
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 cross-motion
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 Kolmel-Hayes, 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:
4;
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RE: KOLMEL-HAYES 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. ”
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
affh-rnative 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 co-defendants, 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 affh-rnative defense that “defendants are not
proper parties to this action ”, this is clearly not related to the non-existence of Captain Lou ’s Fleet
as a legal entity. As revealed by the November 6, 2002 correspondence as well as defendants ’
cross-motion, 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.
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RE: KOLMEL-HAYES 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:
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 Cross-Motion and In Opposition ”, dated
September 9, 2003).
This decision constitutes the order of the court.
Dated:
“MAUREEN KOLMEL-HAYES, DANIEL HAYES
and DANIEL HAYES, as Administrator of the
Estate of CHRISTOPHER HAYES,
/d-/943
-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,
Defendants.
”
-v V-,
6;
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J.S.C.
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