Buckstine v Schor
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Buckstine v Schor 2016 NY Slip Op 33209(U) December 23, 2016 Supreme Court, Westchester County Docket Number: Index No. 57710/2016 Judge: Lawrence H. Ecker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/27/2016 10:47 AM NYSCEF DOC. NO. 46 INDEX NO. 57710/2016 RECEIVED NYSCEF: 12/23/2016 To commence commence the the statutory statutory time for appeals time for appeals as of of right right (CPLR 5513[a]), 5513[a)), you are advised to to serve serve a copy advised copy of of ·, this this order, order, with notice with notice ., of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK · COUNTY COUNTY OF WESTCHESTER WESTCHESTER ------------------- ------------------- ------------------- ---X -----------------------------------------------------------------------X HANNAH HANNAH BUCKSTINE, BUCKSTINE, INDEX INDEX NO. 57710/2016 57710/2016 AMENDED AMENDED DECISION/ORD DECISION/ORDER ER Plaintiff, Plaintiff, -against-against- Motion Motion Date: Date: 9/28/16 9/28/16 Motion Seq. Motion Seq. 2, 3 JORDAN JORDAN SCHOR, SCHOR, JORDAN'S JORDAN'S OF NEW NEW PALTZ PALTZ LLC . and LCORE LCORE ENTERPRISE ENTERPRISE CORP., CORP., Defendants. Defendants. ·-----------·--·-----------------·---X -----------~-----------------------------------------------------------X ECKER, J. · ECKER, The following following papers The papers numbered numbered 1 through 11 were motion of of Jordan Jordan through 11 were read on the the motion · Schor Schor ("Schor"), ("Schor"), made made pursuant pursuant to CPLR CPLR 3211 (a)(7), (a)(7), seeking dismissal of of the complaint complaint seeking dismissal brought brought by Hannah Hannah Buckstine Buckstine ("plaintiff") ("plaintiff') (Motion (Motion Seq. 2) and plaintiffs plaintiffs cross-motion cross-motion · seeking the complaint seeking to amend amend the complaint (Motion (Motion Seq 3): ·. PAPERS PAPERS NUMBERED NUMBERED Notice Affirmation, Exhibits Notice of Motion, Motion, Affirmation, Exhibits A-E, A-E, Notice of Cross-Motion, Cross-Motion, Affirmation Notice of Affirmation in Opposition/ Opposition/ ·-In In Support, Support, Memorandum Memorandum of of Law Law ::Reply Reply Affirmation Affirmation in Support/Opposit Support/Opposition ion 1-7 8 - 10 11 11 Upon the foregoing foregoing papers, Upon the papers, the court determines determines as follows: the court follows: ., Plaintiff, amended complaint complaint [Ex. D], Plaintiff, in her her amended D), seeks monetary damages result of seeks monetary damages as a result of the negligence the three three named the negligence of of the named defendants. defendants. She sustained physical injuries injuries while sustained physical while a .patron at a pizzeria operated by Jordan's ,patron pizzeria operated Jordan's of of New New Paltz Paltz LLC ("the LLC") at premises premises leased leased -1- [* 1] 1 of 4 this LCore Enterprise Enterprise Corp., who who has appeared, appeared, answered answered but not participated participated in this to it by LCore 1 has who LLC the of officer" motion. 1 Jordan Schor alleged "corporate officer" of who has also "corporate the be to alleged is motion. Jordan Schor appeared and answered, answered, but but not participated participated in this this motion. motion. appeared According to the amended amended complaint, complaint, plaintiff's plaintiff's injuries injuries were were sustained sustained on October October According conditions on 25,2014 due to defendants' defendants' failure failure to timely timely repair repair defects defects and dangerous dangerous conditions 2014 due 25, stairs the stairs stairs located located at the pizzeria, pizzeria, in breach breach of each each defendant's defendant's duty duty to maintain maintain the the stairs alleged is right, own his reasonably safe safe condition". condition". Each of the defendants, in its or own alleged the defendants, in "a reasonably have "negligently "negligently constructed, constructed, inspected, inspected, negligently negligently cared cared for, negligently negligently maintained, maintained, to have each and negligently negligently repaired repaired the stairs. stairs. Plaintiff Plaintiff repeats repeats the same same allegations allegations as to each acts of defendant, claiming claiming that that each each of the defendants defendants had committed committed affirmative affirmative acts defendant, cause were the negligence in the maintenance maintenance of of the stairs, stairs, and that that said acts were the proximate proximate cause negligence of plaintiff's injuries. injuries. of plaintiff's the whether the motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a)(7), the the standard standard is whether On a motion cause a has pleading pleading states states a cause cause of action, action, not whether whether the proponent proponent of of the the pleading cause pleading the alleged in the facts as alleged the facts of action. action. In considering considering such such a motion, motion, the court must must accept accept the the court of and inference, favorable possible every of benefit complaint as true, accord plaintiff benefit every possible favorable inference, the plaintiff true, accord complaint Law theory. Law determine only only whether whether the facts facts as alleged alleged fit within within any any cognizable cognizable legal legal theory. determine such That is, such Ofcs. of of Thomas Thomas F Liotti Liotti v State State of of New New York, 139 AD3d AD3d 812 [2d Dept Dept 2016). 2016). That Otes. true, where, even motion to dismiss dismiss should should be granted granted only only where, even viewing viewing the the allegations allegations as true, a motion the plaintiff cannot cannot establish establish a cause cause of action. action. Sokoloff Sokoloff v Harriman Harriman Estates Estates Dev. Corp., 96 the plaintiff Armentano, 139 NY2d 409 409 [2001 [2001];]; Leon Leon v Martinez, Martinez, 84 NY2d 83, 87 [1994]; [1994]; Anderson Anderson v Armentano, AD 3d 769 [2d Dept Dept 2016]. 2016]. AD3d At the outset, outset, the the court court notes notes that that both plaintiff plaintiff and Schor Schor refer refer to him as a At the 22 However, pursuant pursuant to Limited Limited Liability Liability Law§ Law 9 102(q), 102(q), assuming assuming shareholder of the LLC. However, shareholder equity interest interest in the LLC, defined defined as a membership membership interest interest [LLC [LLC Law§ Law 9 102(r), 102(r), he has an equity the of the manager a is he whether time this then he is a member member of the LLC. It is unknown unknown at time whether manager of then consider defined by LLC Law§ Law 9 102(p 102(p).). For purposes purposes of this this motion, motion, the the court court will consider LLC, as defined this of this stage of the pleading whether, at the Schor a member member of of the The issue, therefore, pleading stage therefore, is whether, the LLC. The Schor "corporate" his in action, the complaint complaint states states a cause cause of of action action against against him individually individually "corporate" action, (member) status. status. (member) negligent in his Plaintiff has alleged alleged that that Schor, Schor, acting acting on his own, has been been actively actively negligent Plaintiff those asserted maintenance of the stairs. stairs. The The allegations allegations against against him are the the same same as those asserted maintenance of a officer an against maintained against the LLC and Lcore. Lcore. An action action may may be maintained against officer of against "the purposes of of this motion, the named defendants defendants are referred referred to as "the the named this motion, For purposes defendants". defendants". 1 1 The New New York York Secretary Secretary of State State website website confirms confirms that that Jordan's Jordan's of of New New Paltz Paltz LLC The Paltz New Paltz registered as a domestic domestic limited limited liability liability company company located located at 52 Main Main Street, Street, New is registered York. Ulster County, County, New New York. in Ulster 2 2 -2-2- [* 2] 2 of 4 corporation/d efendant if there corporation/defendant there is evidence evidence that that the officer officer was was exclusively exclusively charged charged with the duty of managing the premises, in which duty of managing premises, which case case the officer officer would would have have owed owed the the plaintiff plaintiff an independent independent duty duty to maintain maintain the premises. premises. Tuckerv Tucker v Meola, Meola, 170 AD2d AD2d 667 667 [2d Dept Dept 1991]. 1991]. This This rule likewise likewise applies applies to members members of a limited limited liability liability company company who may be held who may personally liable if personally liable they they participate participate in the commission commission of a tort tort in furtherance furtherance of of company company business. business. Smith Smith v Delta Delta Intern. Machinery Machinery Corp., 69 AD3d AD 3d 840, 842 [2d Dept Dept 2010). 2010]. Mindful Mindful of the court's court's role when when addressing addressing the viability viability of a complaint complaint pre-answer, pre-answer, and applying applying that that standard standard to this complaint, complaint, the court court finds finds plaintiff plaintiff has stated stated a cause cause of of action against Schor. As such, issue action against Schor. issue must must be joined disclosure proceedings proceedings initiated, initiated, joined and disclosure where the the allegations where allegations of of the complaint complaint may may be further examined. The The court court finds further examined. finds Schor Schor is not entitled entitled at this time time to dismissal dismissal of of the complaint complaint as against against him individually. individually. The The cross-motion cross-motion is denied, denied, as moot, moot, based based upon upon this this ruling, and due plaintiff's due to plaintiff's failure failure to submit submit a proposed proposed second second amended amended complaint. complaint. The The court court has considered considered the additional additional contentions contentions of of the the parties parties not specifically specifically addressed herein. To the extent addressed herein. the extent any relief relief requested requested by either either party party was was not not addressed addressed by the the court, it is hereby hereby denied. denied. Accordingly, Accordingly, it is hereby hereby ORDERED ORDERED that that the the motion motion of Jordan Jordan Schor, Schor, for dismissal dismissal of the the complaint, complaint, as against against him, made made pursuant pursuant to CPLR CPLR 3211 (a)(7), (a)(7), is denied; denied; and it is further further ORDERED ORDERED that that the the motion motion of Hannah Hannah Buckstine, 8uckstine, made made pursuant pursuant to CPLR CPLR 3025, 3025, to file a second second amended amended complaint, complaint, is denied denied as moot; moot; and it is further further ORDERED ORDERED that that pursuant pursuant to the Preliminary Preliminary Conference Conference Stipulation, Stipulation, dated dated December December 13, 2016, 2016, all parties parties to this action action shall shall appear appear at the the Compliance Compliance Conference Conference in the Compliance Compliance Conference Conference Part of the the Court, Court, Room Room 800, on February February 28, 2017 2017 at 9:30 a.m. The The foregoing foregoing constitutes constitutes the Decision/Ord Decision/Orderer of the court. court. Dated: Dated: White White Plains, Plains, New New York York December December 23, 23,2016 2016 -3-3- [* 3] 3 of 4 Appea Appearances rances Law Office Office of Qf Todd Todd J. Kroum Kroumer er Attorn eys for Attorneys for Plainti Plaintiffff Via NYSC NYSCEF EF Mirand rsky Slone Mirandaa Sambu Sambursky Slone Sklarin Sklarin Verven Verveniotis, iotis, LLP Attorn eys for dants Jordan Attorneys for Defen Defendants Schor and Jordan's Jordan Schor Jordan 's of New New Paltz Paltz LLC Via NYSC NYSCEF EF McCab McCabee & Mack Mack LLP Attorn eys for dant LCore Attorneys for Defen Defendant LCore Enterp Enterprises Corp. rises Corp. Via NYSC NYSCEF EF -4~ -4- [* 4] 4 of 4
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