ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-32264
DATE: February 22 , 2013
BETWEEN:
DANIEL DiGREGORIO, MARY JANE DiGREGORIO and RAYMOND DiGREGORIO
Plaintiffs
– and –
SUNWING VACATIONS INC. and AM RESORTS, LLC.
Defendant
Steven Coons, Counsel for the Plaintiffs
HEARD: September 16, 2010
HEARD: September 16, 2010
Dina L. Maxwell, Counsel for the Defendant
RELEASED: February 22 , 2013
SUMMARY JUDGMENT MOTION
TALIANO, J.
[1] This is a summary judgment motion seeking an order dismissing the plaintiffs’ claim as against AM Resorts, LLC.
[2] Briefly stated, the action arises as a result of injuries sustained when a balcony attached to the plaintiffs’ hotel suite collapsed. The hotel was the Dreams Resort, located in Punta Cana, Dominican Republic. The incident occurred on January 1, 2011.
[3] When one of the plaintiffs went to the front desk to speak with management, he was informed that the managers were not on site. He was further told that AM Resorts operated the resort and further information could be obtained on its website called www.amresorts.com. As a result of a search of this website, the plaintiffs learned that Dream Resorts operated 33 other resorts and the website provided descriptions of the various services and amenities available at each. The place of business for AM Resorts was 7 Campus Boulevard, Newtown Square, Pa 19073, USA.
[4] The plaintiffs also searched Wikipedia where AM Resorts was described as a hotel management company operating some 28 hotels in Mexico, the Dominican Republic and Jamaica. A corporate search of the company in the state of Pennsylvania confirmed the company’s address as above noted.
[5] Following a corporate search of the company in the State of Pennsylvania, the plaintiffs initiated their action against this company on December 28, 2011 and pleadings were subsequently exchanged.
[6] On October 4, 2012, AM Resorts, LLC served and filed its summary judgment motion and included in its supporting materials was a copy of the Hotel Management Agreement for the Dreams Punta Cana Resorts and Spa and AMR Resort Management, LLC in which the latter company is referred to as the operator of the resort. A corporate search of AMR Resort Management, LLC indicates that it operates from the same location in Philadelphia as AM Resorts, LLC and has the same operating minds.
[7] Clause 3.1 of the Agreement sets out some of the duties that AMR Resort Management, LLC agreed to provide and those duties, such as marketing and advertising, overlap similarly specified activities described as being performed by AM Resorts, LLC in Para. 15 of the supporting affidavit of Laurie Bench
[8] In my view, AM Resorts, LLC has held itself out to the public as an operator of the Dreams Resort in Punta Cana. In addition, it is clear that there is a close relationship between AM Resorts, LLC and AMR Resort Management, LLC and that they may have overlapping responsibilities relating to the operation and control of the hotel in question.
[9] Given the contradictory evidence before the court, it is not possible to determine the issue of occupier’s liability nor is it desirable to do so without permitting the plaintiffs an opportunity to fully develop their case.
[10] In my view, this case is a classic example of one where the interests of justice require that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion as the court stated in Combined Air Mechanical Services Inc. et al v. Flesch et al, 2011 ONCA 764, Para. 57
[11] Accordingly this motion for summary judgment must be denied. Counsel have provided a costs outline both of which I have reviewed. The moving party’s partial indemnity costs claim amounts to $10,012.31. The successful party has advanced a costs claim of $4415.91 which in my view is reasonable and I award this sum to the plaintiffs and order them payable forthwith.
[12] Of course this ruling also will apply to the companion action # CV-11-32266
TALIANO, J.
Date: ** February 22, 2013 **
COURT FILE NO.: CV-11-32264
DATE: February 22, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIEL DiGREGORIO, MARY JANE DiGREGORIO and RAYMOND DiGREGORIO
Plaintiff
– and –
SUNWING VACATIONS INC. and AM RESORTS, LLC.
Defendants
SUMMARY JUDGMENT MOTION
TALIANO, J.
DJT:mw
Released: February 22, 2013