Shea v. Salvation Army

169 A.D.3d 1081

95 N.Y.S.3d 232

Julia SHEA, etc., Appellant,

v.SALVATION ARMY, et al., Defendants,U.S. Security Associates, Respondent.

2016–03365

Index No. 21943/13

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

Submitted—November 2, 2018

February 27, 2019

Philip J. Rizzuto, P.C., Uniondale, N.Y. (Kenneth R. Shapiro of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Kenneth Gerard of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated January 11, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendant U.S. Security Associates which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant U.S. Security Associates which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is denied.

The plaintiff commenced this action, inter alia, to recover damages for wrongful death, alleging, among other things, that the negligence of the defendant U.S. Security Associates (hereinafter USSA) in providing security at an assisted living facility caused or contributed to the murder of the decedent, who resided there. USSA moved pursuant to CPLR 3211(a)(7) to dismiss the complaint and all cross claims insofar as asserted against it on the ground that it did not owe the plaintiff's decedent a duty of care, as it had not been retained to provide security at the facility on the date of the murder. In support, USSA submitted evidence that another entity furnished security for the facility at the time of the murder, and that USSA purchased the assets of that entity some six days after the murder and therefore could not be held liable. In opposition to the motion, the plaintiff argued, inter alia, that USSA could be held liable as the successor of the company that formerly provided security. The Supreme Court granted USSA's motion, and the plaintiff appeals from so much of the order as granted that branch of USSA's motion which was to dismiss the complaint insofar as asserted against it. We reverse insofar as appealed from.

Generally, "a corporation which acquires the assets of another is not liable for the torts of its predecessor" ( Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 244, 464 N.Y.S.2d 437, 451 N.E.2d 195 ; see Nationwide Mut. Fire Ins. Co. v. Long Is. A.C., Inc., 78 A.D.3d 801, 801, 912 N.Y.S.2d 226 ). However, such liability may arise if the successor corporation expressly or impliedly assumed the predecessor's tort liability, there was a consolidation or merger of seller and purchaser, the purchaser corporation was a mere continuation of the seller corporation, or the transaction was entered into fraudulently to escape such obligations (see Hartford Acc. & Indem. Co. v. Canron, Inc., 43 N.Y.2d 823, 825, 402 N.Y.S.2d 565, 373 N.E.2d 364 ; Wass v. County of Nassau, 153 A.D.3d 887, 888, 60 N.Y.S.3d 339 ).

Moreover, "[w]here, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7)... the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Mazzei v. Metropolitan Transp. Auth., 164 A.D.3d 1227, 1227–1228, 83 N.Y.S.3d 590 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Guggenheimer v....