Brenner v Sheraton Waikiki Hotel & Resort

[*1] Brenner v Sheraton Waikiki Hotel & Resort 2012 NY Slip Op 52086(U) Decided on September 18, 2012 Supreme Court, Nassau County Winslow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 18, 2012
Supreme Court, Nassau County

Karen Brenner and LAWRENCE BRENNER, Plaintiffs,

against

Sheraton Waikiki Hotel and Resort, KYO-YA HOTELS & RESORTS, LP, and STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Defendants.



3383/10

F. Dana Winslow, J.

Defendants, Kyo-Ya Hotels & Resorts, LP d/b/a Sheraton Waikiki Hotel and Resort (s/h/a Sheraton Waikiki Hotel and Resort and Kyo-Ya Hotels & Resorts, LP) (hereinafter referred to as "Kyo Ya") and Starwood Hotels & Resorts Worldwide, Inc. ("Starwood Worldwide"), move for an Order, pursuant to CPLR 2221(d), granting them leave to reargue their prior motion to dismiss the plaintiffs' complaint which was denied in it's entirety in a Decision and Order of this Court dated September 23, 2011. The Court grants the motion to reargue and determines as follows.

Plaintiffs, Karen and Lawrence Brenner, in turn cross move, pursuant to: (1) CPLR 306-b for an Order granting them an extension of time for the service of the Verified Complaint upon the defendant, Kyo Ya; and (2) CPLR 3025(b) for leave to amend the Verified Complaint to add Starwood Hotels & Resorts Management Company and Sheraton Hawaii Hotels Corporation as additional defendants to this action. The cross motion is determined as follows.

Plaintiffs, Karen and Lawrence Brenner were guests at the Sheraton Waikiki Hotel and Resort in Honolulu, Hawaii on February 19, 2008. They bring this action in negligence alleging that due to inadequate lighting in a stairway within the subject hotel, Karen Brenner sustained a fall and ultimately was seriously and permanently injured. Plaintiffs claim that the accident occurred as a result of the negligent operation, maintenance, control, possession, supervision, direction, construction, inspection, management, renovation, installation, rehabilitation and/or alteration of the premises.

By a Decision and Order dated September 23, 2011, this Court denied the defendants pre-answer motion to dismiss the complaint on the grounds of no personal jurisdiction and forum non conveniens. This Court also determined that defendant [*2]Starwood Worldwide's application to dismiss the complaint on the grounds that it failed to state a cause of action against it was also denied.

In an attempt to reverse this Court's determination, the defendants' move for leave to reargue the aforementioned Court's Decision and Order.

A motion to reargue is addressed to the discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law (CPLR 2221[d][2]). It is not designed as a vehicle to afford the unsuccessful party an opportunity to argue once again the very questions previously decided (Gellert & Rodner v. Gem Community Mgt., Inc., 20 AD3d 388 [2nd Dept. 2005]). Nor is it designed to provide an opportunity for a party to advance arguments different from those originally tendered (Amato v. Lord & Taylor, Inc., 10 AD3d 374, 375 [2nd Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced (Levi v. Utica First Ins. Co., 12 AD3d 256, 258 [1st Dept. 2004]; Frisenda v. X Large Enterprises, Inc., 280 AD2d 514, 515 [2nd Dept. 2001]). Instead, the movant must demonstrate the matters of fact or law that he or she believes the court has misapprehended or overlooked (Hoffmann v. Debello-Teheny, 27 AD3d 743 [2nd Dept. 2006]). Absent a showing of misapprehension or the overlooking of a fact, the court must deny the motion (Barrett v. Jeannot, 18 AD3d 679 [2nd Dept. 2005]). Further, a motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may not be submitted or considered by the court (James v. Nestor, 120 AD2d 442 [1st Dept. 1986]; Philips v. Village of Oriskany, 57 AD2d 110 [4th Dept. 1997]).

Here, in requesting reargument, counsel for the defendants advance four chief arguments. First, the Court failed to address whether the plaintiff ever secured personal jurisdiction over Kyo Ya by proper service of process. Second, the Court misapprehended the facts and the law surrounding the plaintiffs' basis for personal jurisdiction over Kyo Ya and improperly found that there was a basis for personal jurisdiction over the foreign defendant. Third, the Court misapprehended the facts and the law as to whether defendant Starwood Worldwide owned or operated the subject hotel and owed a duty to the plaintiffs in this matter and incorrectly determined that the plaintiffs stated a cause of action against Starwood Worldwide. Lastly, the Court misapprehended the facts and the law surrounding the forum non conveniens argument in that it overlooked the substantial prejudice to the defendants in litigating the matter in New York.

Defendants argue that for these reasons, their application to reargue should be granted and the Decision and Order dated September 23, 2011 should be reversed.

With the exception of their first argument, this Court finds the balance of defendants' three contentions to be entirely meritless, infra. Nonetheless, based upon defendants' claim that the Court failed to address their jurisdiction argument dealing with proper service of process, this Court herewith grants reargument. Upon reargument, this [*3]Court reverses its jurisdictional determination.

It is noted at the outset that a motion made pursuant to CPLR 3211(a)(8) lies, "whatever the nature of the defect, as long as the defect goes to personal jurisdiction" (Siegel, NY Prac. §266 [5th Ed]). Unlike federal practice, in New York, an objection of "personal jurisdiction" covers any category of it: "want of jurisdictional basis, inadequate summons, and/or improper service" (169 Siegel's Practice Review 4, January 2006). In this case, while this Court thoroughly and adequately addressed want of jurisdictional basis, it found that defendants' second point with respect to jurisdiction, i.e., service of process wasn't as clear as it presently appears.

Kyo Ya is a foreign (Delaware) limited partnership with its principal place of business in Honolulu, Hawaii. As determined by this Court in its underlying decision, Kyo Ya is amenable to suit in this State on the basis of the "presence" of its New York agents, to wit: Starwood Management (non party) and Sheraton Hawaii (non party) (CPLR 301).

Pursuant to CPLR 310-a entitled "Personal Service Upon a Limited Partnership":

(a) Personal service upon any domestic or foreign limited partnership shall be made by delivering a copy personally to any managing or general agent or general partner of the limited partnership in this state, to any other agent or employee of the limited partnership authorized by appointment to receive service or to any other person designated by the limited partnership to receive process, in the manner provided by law for service of summons, as if such person was the defendant. Personal service upon a limited partnership subject to the provisions of article eight-A of the partnership law may also be made pursuant to section 121-109 of such law. (b) A limited liability partnership may also be served pursuant to section 121-1505 of the partnership law.

(Emphasis Added).

(c) If service is impracticable under subdivision (a) of this section, it may be made in such manner as the court, upon motion without notice, directs.

Partnership Law §121-109 entitled "Service of process on limited partnerships" in turns outlines the process by which service of process over Kyo Ya may be achieved.

Here, the affidavit of service produced by the plaintiffs establishes that the only service attempted upon Kyo Ya was by serving the Secretary of State on March 12, 2010. While Partnership Law §121-109(b) provides that process against such a foreign limited partnership may be served upon the Secretary of State as its agent, it also provides that "such service shall only be sufficient if notice thereof and a copy of the process are: (1) Delivered personally without this state to such foreign limited partnership..., or (2) Sent by or on behalf of the plaintiff to such foreign limited partnership by registered mail with [*4]return receipt requested..." The statute continues in subparagraph (4) that:

Where service of a copy of process was effected by mailing in accordance with this section proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after receipt of the return receipt signed by the foreign limited partnership, or other official proof of delivery or of the original envelope mailed. If a copy of the process is mailed in accordance with this section, there shall be filed with the affidavit of compliance either the return receipt signed by such foreign limited partnership or other official proof of delivery.

There is no reference in the affidavit of service upon the Secretary of State to any subsequent personal service on Kyo Ya in Hawaii or any subsequent mailing of any notice of such service or a copy of the Summons and Complaint to Kyo Ya via registered mail return receipt requested. There is no proof produced by the plaintiffs that they ever mailed to Kyo Ya at all. In addition, the plaintiffs have failed to produce any proof of ever filing an affidavit of compliance as prescribed by the Partnership Law §121-109(b). That affidavit of compliance, together with a copy of the process, as well as a copy of the signed return receipt or other official proof of delivery was to be filed with the Court within thirty days after the plaintiffs' receipt of the return receipt signed by the foreign limited partnership or other official proof of delivery. Pursuant to §121-109(b)(4), the service of process on the foreign limited partnership is deemed complete ten days after the affidavit of compliance is filed with the Court. There is no evidence that this procedure was followed.

In light of the fact that the plaintiffs have not properly served Kyo Ya and have never produced a copy of the return receipt signed by Kyo Ya or any proof at all of compliance with §121-109, it is clear the plaintiffs' attempt at service on Kyo Ya by serving the complaint on the Secretary of State, alone, is insufficient. Thus, plaintiffs have never completed service of process on Kyo Ya.

That being said, upon the instant cross motion, plaintiffs seek an Order, inter alia, granting them an extension of time for service of the Verified Complaint upon the defendant, Kyo Ya.

Pursuant to CPLR 306-b, this Court is permitted to grant an extension of time to serve process. The Court of Appeals in Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 [2001], confirmed that "good cause" and "interest of justice" are separate grounds for an extension of time to serve process and are defined by separate criteria.

Good cause requires a "threshold" showing that the plaintiff made reasonably diligent efforts to make timely service (Id. at 104).

The "interest of justice" standard is broader and a more flexible ground for an extension. It does not require diligence on the part of the plaintiff in attempting service (Id at 104). Rather, "[t]he interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the [*5]parties" (Id. at 105). Thus, while diligence in the attempt to serve process may yet be a relevant factor, other judicial concerns such as "expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" must also be considered (Id. at 105-06).

With these guidelines in mind, this Court, herewith grants the plaintiffs' cross motion for an extension of time for the service of the Verified Complaint upon the defendant, Kyo Ya. Relying principally upon the fact that the statute of limitations for this matter has already expired (CPLR 214[5]) which means that a denial of an extension of time for service would result in the dismissal of plaintiffs' complaint and a permanent bar of plaintiffs' action against Kyo Ya, this Court herewith grants plaintiffs' cross motion for an extension of time for service in the interest of justice (Prudence v Wright, 94 AD3d 1073 [2nd Dept. 2012]).

The defendants' remaining grounds for reargument are meritless as mentioned at the outset of this short form order.

First, defendants contention that this Court should have awarded further discovery on the jurisdictional issues rather than making a finding that personal jurisdiction existed based on speculation as to the facts surrounding the scope of the alleged agency between Kyo Ya and the non party entities operating the hotel, is entirely without basis.

In order to warrant discovery on jurisdictional issues, a plaintiff must demonstrate that facts may exist in opposition to the defendants' motion to dismiss the complaint for lack of personal jurisdiction (Peterson v. Spartan Industries, Inc., 33 NY2d 463 [1974]; Petty v. Oy, 93 AD2d 791 [1st Dept. 1983]). Thus, a defendant is not entitled to the dismissal of a complaint, where the plaintiffs demonstrate that additional facts relevant to the issue of jurisdiction may become available to them during disclosure (Id).

In this case, this Court denied the defendants' motion to dismiss the action against Kyo Ya finding instead that this Court "has personal jurisdiction over said foreign defendant via the presence of its New York agents [sic]." Thus, there was no need for additional disclosure. The plaintiffs did not need to demonstrate that additional facts relevant to the issue of jurisdiction were in the possession of the defendant and would become available to them during disclosure. As stated in this Court's prior Decision and Order, the plaintiffs, via the Management Agreement and the conduct of the parties, had already demonstrated a basis for personal jurisdiction over the defendants.

Second, defendants' argument that this Court misapprehended the facts and the law, particularly the "fact" that defendant Starwood Worldwide did not own or operate the subject hotel and owed no duty to the plaintiffs in this matter, is equally insufficient to warrant reargument. Defendants' contend that had this Court misinterpreted the Management Agreement and taken it out of context, Starwood Worldwide's motion to dismiss based upon plaintiffs' failure to state a cause of action, should have been granted. Defendants claim herein that "there was absolutely nothing in the record presented in [*6]connection with the underlying motion that suggested that STARWOOD WORLDWIDE had control over the subject property. Thus, there could be no question of fact as to whether it retained any control over the subject property" (Aff. In Supp., ¶24).

Defendants' arguments herein are wholly meritless and nothing more than a distraction from the underlying pre-answer motion to dismiss the complaint. Defendants contend that the portion of the Management Agreement taken out of context by this Court more fully states as follows:

WHEREAS, Operator is an affiliate of Starwood Hotels & Resorts Worldwide, Inc. ("Starwood") , and is knowledgeable and experienced in operating hotels under the Brands;

Defendants argue that all that sentence did was identify the non-party Operator of the hotel as an entity that was familiar with the Starwood Brands since it was affiliated with Starwood Worldwide. They claim that this sentence did not in any way define the word "affiliate" to mean Starwood Worldwide any time it appeared throughout the balance of the Agreement (Aff. In Supp. Of Mot. To Reargue, ¶25). These arguments are entirely unavailing.

Whether the defendant is an affiliate of the non party operators is not determinative of the motion to dismiss for failure to state a cause of action. As stated by this Court in the underlying Decision and Order, "To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and that the breach was a proximate cause of the plaintiff's injury" (Dabnis v. West Islip Public Library, 45 AD3d 802, 803 [2nd Dept. 2007]; see also Pulka v. Edelman, 40 NY2d 781, 782—783 [1976]). In this case, contrary to the defendants' arguments relating to Starwood Worldwide's duty, supra, the complaint plainly alleges, inter alia, that the defendant Starwood Worldwide is the "owner," "operated," "managed," "inspected," "maintained," "repaired," and "controlled" the subject Sheraton Hotel.

As stated in this Court's underlying decision, when deciding a motion made pursuant to CPLR 3211(a)(7), the court must determine whether the plaintiff has a legally cognizable cause of action and not whether the action has been properly plead (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]; Rovello v. Orofino Realty Co., 40 NY2d 633 [1976]). The complaint must be liberally construed, and plaintiff must be given the benefit of every favorable inference (Leon v. Martinez, 84 NY2d 83 [1994]; Sitar v. Sitar, 50 AD3d 667 [2nd Dept. 2008]). The court must also accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion (511 West 232rd Street Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]; Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409 [2001]).

With these overarching principles in mind, this Court denied defendants' pre-answer motion to dismiss the complaint for failure to state a cause of action against [*7]defendant Starwood Worldwide.

Finally, the defendants' claim that this Court failed to take note of the basis for the prejudice to the defendants in litigating the matter in New York is also meritless and does not provide a basis for awarding reargument of the forum non coveniens argument. In fact, upon the instant motion the defendants offer nothing more than a regurgitation of the arguments presented on the underlying motion. They fail, upon reargument, to establish that the selection of New York as the venue will not serve the interests of substantial justice. Defendants' argue that this Court disregarded their list of "non-party witnesses" when determining the underlying motion. This is incorrect.

Defendants list of "witnesses" first raised in their underlying reply affirmation purports to name those individuals who will allegedly have to be subpoenaed and "dragged" to New York and various nondescript, as yet "unidentified witnesses responsible for the design, construction and maintenance of the area where the accident occurred." The defendants' list originally totaled three "medical witnesses" and 12 "lay witnesses." Two of the witnesses identified as being affiliated with Kyo Ya are no longer listed in the instant motion to reargue. Further, two of the laywitnesses were directly identified in defendant's reply affirmation as working for "Sheraton Waikiki" and the other eight are simply listed as "Security Officers" without any addresses listed. This Court will not rely on a list of non-party witnesses who are current or former employees or representatives of the parties to the action as sufficient grounds for granting a motion to dismiss based upon forum non conveniens particularly where other factors — e.g., plaintiff's choice of forum and the non party operators Starwood Management and Sheraton Hawaii maintain their principal place of business in New York — militate against dismissal (Kronengold v. Hilton Hotels Corp., 166 AD2d 325, 326 [1st Dept. 1990] citing Silver v. Great Amer. Ins. Co., 29 NY2d 356, 361 [1972]). The Court also notes at this juncture, but did not believe that it had to mention, that the internet with attendant technology, permit a presence in New York and in Hawaii as well, a fact well recognized and its use encouraged by this and Courts throughout New York State. That procedure would allow for discovery, including examinations before trials to be conducted with far more freedom and efficiency than transporting witnesses and counsel across the country.

Finally, plaintiffs' cross motion, for an Order granting them leave to amend the Verified Complaint to add Starwood Hotels & Resorts Management Company (Starwood Management) and Sheraton Hawaii Hotels Corporation (Sheraton Hawaii) to this action and assert the same causes of action as pled in the original complaint, is granted.

It is true that although leave to serve an amended pleading should be freely given upon such terms as are just (CPLR 3025[b]; Edenwald Contr. Co. v. City of New York, 60 NY2d 957 [1983]; AYW Networks v. Teleport Communications Group, 309 AD2d 724 [2nd Dept. 2003]), leave should not be granted where "the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit" (Morton v. [*8]Brookhaven Mem. Hosp., 32 AD3d 381 [2nd Dept. 2006]; Thone v. Crown Equip. Corp., 27 AD3d 723 [2nd Dept. 2006]). Here, the defendants have consistently maintained that non-parties Starwood Management and Sheraton Hawaii are charged with the operation of the subject Sheraton Waikiki Hotel and Resort in Honolulu, Hawaii. Further, notwithstanding the fact that as part of their initial suit in Federal Court (ultimately dismissed for lack of subject matter jurisdiction), as early as May 2010, the plaintiffs were aware of the names of the proper parties that operated the subject hotel, the plaintiffs have waited approximately two years before the filing of the within cross motion. In this time the statute of limitations for the plaintiffs' negligence claims has lapsed. Although the statute of limitations has expired, and ordinarily the motion to amend would be denied as untimely (Jenal v. Brown, 80 AD3d 727 [2nd Dept. 2011]), the relation back doctrine would save the plaintiffs' motion herein and the Court believes that it is an entirely just and appropriate procedure.

"In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of [the] same conduct, transaction, or occurrence, (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he will not be prejudiced in maintaining his defense on the merits, and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well" (Boodoo v. Albee Dental Care, 67 AD3d 717, 718 [2nd Dept. 2009]; see also Buran v. Coupal, 87 NY2d 173, 178 [1995]).

The non parties Starwood Management and Sheraton Hawaii and the named defendant Kyo Ya are united in interest; that is, they do not have manifestly different defenses to the plaintiff's claims and would ultimately likely stand or fall together (Mondello v. New York Blood Ctr.-Greater NY Blood Program, 80 NY2d 219, 226 [1992]; Xavier v. RY Mgt. Co., Inc., 45 AD3d 677, 679 [2nd Dept. 2007]). Further, given the procedural history of this action (from Federal Court to State Court), this Court finds that the non party operators of the hotel knew or should have known that, but for a mistake, the direct action would have been commenced against them, as well. Accordingly, the plaintiffs' motion for leave to amend the complaint is herewith granted (Arsell v. Mass One LLC, 73 AD3d 668 [2nd Dept. 2010]).

The parties' remaining contentions have been considered and do not warrant discussion.

All applications not otherwise specifically addressed are herewith denied.

This shall constitute the decision and order of this Court.

S/FDW

Dated: 9/18/2012________________________________

J.S.C.