Premises Pointers - Volume I, No. 1

Premises Pointers
Watch your step!


Volume I, No. 1

Thursday, June 15, 2017

A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


If you know of others who may wish to subscribe to this free publication, or change your subscription status, please contact Jody E. Briandi at [email protected] or call 716-849-8900. All issues of Premises Pointers are listed on the firm website at

Jody E. Briandi
[email protected]



Todd C. Bushway

[email protected]




V. Christopher Potenza

[email protected]


Tessa R. Scott

[email protected]


Anastasia M. Stumpf

[email protected]


James L. Maswick

[email protected]





Retail, Restaurant and Hospitality Industry

Slip and Fall Accidents

Snow/Ice Claims and Storm in Progress

Inadequate/Negligent Security

Inadequate Maintenance

Negligent Repair

Defective and Dangerous Conditions

Elevator and Escalator Accidents

Swimming Pool and Recreational Accidents

Dog Bites/Animal Liability

Negligent Supervision

Assumption of Risk

Limited Services Contracts

Indemnification Agreements

Tavern Owner Liability and Dram Shop

Homeowner Liability

Toxic Exposures




Welcome to our first edition of Premises Pointers! We are very excited to join our sister publications of Coverage Pointers, Labor Law Pointers and Health Law Pointers. Our goal is to share with you current cases, trends and developments involving premises liability and general litigation. Our team consists of myself, Todd C. Bushway, V. Christopher Potenza, Tessa R. Scott, Anastasia M. Stumpf and Jamey L. Maswick.


As the head of the Premises Liability practice group at Hurwitz & Fine, P.C., I have 20 years of experience handling all types of premises liability matters from inception to trial and also through the appellate process. Because we are a firm that specializes in this area of the law handling cases throughout New York State, it is critical for our attorneys to stay abreast of new cases and trends across New York in both State and Federal Court. Our hope is that this newsletter will allow you and your teams to do the same!


On a personal note, I am a busy mother of 3 children (Massimo, Ava and Salvatore) who are 16, 12 and 8. When my husband and I are not driving the kids around town and attending their school and sports events, we enjoy travelling. This summer’s itinerary includes Universal Studios in Orlando, Montego Bay, Jamaica and Newport, Rhode Island. I will need a “staycation” after all of that to recover!


In addition to my monthly column, which will focus on Retail, Restaurant and Hospitality litigation, you will hear from Todd, Tessa, Anastasia, Jamey and Chris. Todd likewise has over 20 years of experience handling and trying premises liability matters. He is our expert on negligent supervision claims, having tried multiple school district cases to verdict, and will also bring you updates on assumption of risk and limited services contracts. Tessa, a talented attorney, Coverage Pointers contributor and member of our premises liability practice group, is following homeowner liability, swimming pool and recreational accidents and dog bite/animal liability claims. Anastasia, another talented attorney and member of our premises liability team, will be reporting on snow and ice cases, storm in progress and tavern owner/dramshop liability. Jamey, who is from the Capital Region and our Albany Office, will provide updates on elevator and escalator cases and general litigation matters. And lastly, Chris, who leads the firm’s state wide Toxic Tort and Environmental litigation team, including asbestos and lead-based paint defense, will author a monthly column covering this area of the law as it pertains to premises liability.


Please feel free to share this newsletter with friends and colleagues who would find it useful. We would love to add new subscribers! We are also available to provide training to any and all that may want some, on any premises liability topic, in person or as a webinar. Please call or email if this is of interest to you and your team.


Thank you!


Jody E. Briandi


Hurwitz & Fine, P.C.


1300 Liberty Building, Buffalo, NY 14202

Phone: 716-849-8900, Fax: 716-855-0874


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Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


03/20/17  Pokigo v. Target Corporation

Western District of New York

When does an inch make a difference? Summary Judgment granted to store in trivial defect case

Plaintiff alleges that as she was walking toward the store entrance she tripped and fell on concrete that was raised, crumbled, and/or broken in the area of the expansion joint resulting in a height differential of at least one inch. Target submitted evidence the height differential was ¼ inch. Plaintiff claimed that Target was negligent in its maintenance of the area and for allowing a dangerous condition to exist. Target argued that the area was properly maintained and that the condition at issue was a trivial defect under New York law and therefore not actionable. Target also offered the opinion of an expert who opined that the walkway was in compliance with acceptable safety standards and showed nothing more than normal wear and tear. The Magistrate Judge recommended denial of the motion based on issues of fact regarding size, dimensions and the resulting height differential created by the alleged defect. Target filed objections to the report and recommendation. The District Court Judge ruled that the condition was too trivial to be actionable and granted Target’s motion stating that “the disparity between the positions taken by both sides here makes not an inch of difference.” Key evidence considered included the photographs of the condition and the testimony of the witnesses regarding size, shape and dimension.


04/20/17  Dranoff v. Sam's E., Inc.

Southern District of New York

Summary Judgment granted to store in slip and fall case – Federal Court procedural law applied regarding summary judgment standard and State Court substantive law regarding premises liability

Plaintiff was shopping at Sam’s Club when she slipped and fell on water in front of a fresh flower display. Plaintiff did not see water on the floor before she fell. The area was cleaned by maintenance employees after the incident was reported. There is no evidence regarding how the water ended up on the floor. In granting summary judgment, the Court noted that while the plaintiff saw the water after falling, there was no evidence in the record that revealed anything about the source of the water and no evidence the water was visible and apparent such that it would have been observed by employees in the area. Therefore, the Court concluded there were no facts to support a finding of constructive notice to the store.

01/10/17  Harris v. Morton’s Restaurant Group, Inc.

Appellate Division, First Department

Summary Judgment denied based on issue of fact regarding food contamination claim

Plaintiff became ill after eating oysters at Defendants’ restaurant. In moving for summary judgment, Defendants submitted evidence of noncontamination, which the Court found was circumstantial rather than conclusive The Court held that Defendants “failed to demonstrate that plaintiffs’ evidence did not render the possibility of another explanation for Mr. Harris’s illness “sufficiently ‘remote’ or ‘technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.” The presence of Vibrio in testing samples taken from the plaintiff was deemed a “sufficient factual basis for a finding that it is more likely than not that Mr. Harris’s illness was caused by his ingestion of oysters from defendants’ restaurant.”


03/29/17          Gerner v. Shop-Rite of Uniondale, Inc.

Appellate Division, Second Department

Plaintiff’s lawsuit dismissed because the condition complained of was open and obvious. Note difference in case below between Second Department’s and Fourth Department’s application of open and obvious defense.

Plaintiff, while shopping at defendant’s store and dining at the indoor café, allegedly tripped over a decorative fence used to separate the café from the rest of the store. Upon exiting the café, the plaintiff opted to cut through a narrow space between the decorative fence and planter and tripped on the foot of the fence. The Court pointed out that a wider path was available to exit. It was determined that defendants established that the fence and the leg plaintiff tripped on was open and obvious and readily observable “by those employing the reasonable use of their senses” and “was not inherently dangerous.” The court further noted that the plaintiff did not demonstrate the fence constituted a “trap for the unwary.” Accordingly, summary judgment was granted in favor of the defendants.

05/04/17          Ahern v City of Syracuse

Appellate Division, Fourth Department

Application of open and obvious defense in Fourth Department is not a bar to recovery

Here, plaintiff tripped and fell on a broken curb that defendant argued was open and obvious and known to plaintiff. The court denied defendant’s motion for summary judgment based on this argument holding that the “fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition, but, rather, bears only on the injured person’s comparative fault.”


05/05/17          Wallace v M&C Hotel Interests, Inc.

Appellate Division, Fourth Department

Hotel was not responsible for boy’s near drowning at the hotel pool

This action arose after the near drowning of Plaintiff’s son in a hotel pool. Plaintiff alleged that that defendants, the hotel, were negligent in failing to provide lifeguards or otherwise adequately supervise bathers using the hotel pool, allowing the pool to be overcrowded, and allowing a dangerous condition to exist on the premises (referring to a group of children to playing games in and around the pool). Defendants moved for summary judgment dismissing Plaintiff’s complaint, and won. Thereafter, Plaintiff appealed the decision with regard to inadequate supervision and the existence of a dangerous condition.


  1. Plaintiff’s claim that Defendants did not have lifeguards


    Defendant argued that the decision of the lower court should be upheld. In support of its position, Defendant pointed to the New York State Sanitary Code (Sanitary Code), to establish that it was a temporary residence under the Sanitary Code. As a temporary residence, Defendant was not required to provide “on premises CPR certified staff,” or more simply stated, life guards. Defendants also submitted a report from the Erie County Department of Health, indicating that the Defendants met all the requirements for the use required for its classification as a temporary residence.


    The Fourth Department held that Defendants met their initial burden with respect to the lifeguard and bather supervision claims. It noted that Defendant did not owe Plaintiff a duty to provide lifeguards.





  2. Plaintiff’s claim that defendants permitted a dangerous condition to exist on the premises


    It is uncontroverted that landowners and businesses have a duty to maintain their properties in reasonably safe condition. This duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances. The duty may apply if landowners if they have the opportunity to control such third parties persons and are reasonably aware of the need.


    The Fourth Department determined that Defendants were not aware of the need to control the children playing by the pool, and did not have an opportunity to control them. The Court noted that there could be a question of fact with regard to the causal connection between the rough-housing and Plaintiff’s son’s injuries; however, that question was not relevant if Defendants had no awareness or opportunity to intervene.


    Thus, the Court affirmed the holding of the lower court.


Negligent Supervision, Municipal Claims, Assumption of Risk and Limited Services Contracts

By: Todd C. Bushway [email protected]


I am not sure if I should welcome you or not to this addition to the family of Hurwitz & Fine, PC newsletters or thank you for adding this to what is probably an already sizeable stack of materials to review. My hope is that we can provide you with up to date and relevant information that adds to your knowledge and live up to the prodigious legacy set by Hurwitz & Fine’s Coverage Pointers and Labor Law Pointers, headed by Dan Kohane and David Adams, respectively.

By way of introduction, I am a lifelong resident of the Western New York/Buffalo area and have been an attorney since 1992. Besides my lovely wife and two high school aged children, my extracurricular pursuits include rock and roll (300 plus concerts and counting - if it doesn’t start with a guitar, preferably plugged in, I don’t want to hear about it), local history and architecture and, as a member of the class of 1988, Notre Dame football. We have to cheer for the Irish, lest they revoke our diplomas.

Here are some fun Notre Dame athletics facts for you – since the 1988 season, when the Irish’s last won a national title in football (I graduated in the spring of 1988, the title was won the following fall, so I’ve only heard about this), other Irish teams have played in 20 national title games, winning 10 times. These 20 title appearances do not reflect a good showing by the Irish men. Of the 10 championships, nine were won by co-ed (fencing) or women’s teams, with the 2013 men’s soccer team being the outlier. 8 of the other 10 title game appearances were by women’s teams. Back to football, since the 1988 title game, the football team made the championship game only one time and has spent only 22 weeks atop the combined 423 weeks of the AP Top 25 poll. Of those 22 appearances, only 3 of those weeks have occurred since 1993. Yikes.

I have always practiced on the defense side of personal injury litigation. I started with a property and casualty insurer’s house counsel office, which was great until they first stopped writing insurance in New York and then exited the United States property and casualty market entirely. After 16 years at another civil litigation firm, I joined Hurwitz & Fine in 2011. I have handled cases across New York during my career and, by my rough count, have appeared in or handled matters in 44 out of New York’s 62 counties – two weeks ago I got to add a new county with the assignment of a case in Washington County.



In its 2002 decision in Espinal v. Melville Snow Contractors, Inc. the Court of Appeals set forth a clearly defined standard for addressing the liability of a party who provided services based upon a contract that limited the scope of services to certain limited obligations or work, as opposed to a contract where the contracting party took over the entirety of the task or area of work.


This rule held that a party with a limited services contract could only be found to owe a duty to an injured third party (i.e. a person not a party to the contract at issue) where is had performed the specific, limited tasks set forth in its contract. The court also set forth three exceptions to the rule, where the contracting party would be found to owe a duty to the injured party. Those exceptions are: (1) the contracting party, in failing to act reasonably in performing its contractual obligations, launches a “force or instrument of harm” (i.e. affirmatively creates a dangerous condition), (2) the injured party detrimentally relied upon the contracting parties continued performance of its duties, and (3) where the contracting party had assumed obligation beyond those specified in the contract.


Several recent cases have touched upon the application of the three Espinal exceptions.


04/29/17          Koslosky v. Ross Malmut

Appellate Division, Second Department

Pleading the Espinal Exceptions:

Plaintiff was injured in an automobile accident and sued the defendant auto repair shop, claiming that repairs made to the vehicle (owned by another part) by the shop five months earlier were defective and the cause of the accident. Defendant moved for summary judgment arguing it owed the plaintiff, as a third party, no duty under the repair contract with the vehicle’s owner. The appeals court found in favor of the repair shop.


Since there was dispute that the plaintiff was not a party to the contract to repair the vehicle, in overturning the lower court’s decision, the Appellate Division looked to the three Espinal exceptions. After reviewing the pleadings, the court stated that the repair shop was not obligated, on the motion, to establish that the three exceptions were inapplicable to the claim because plaintiff’s pleadings did not allege facts that would establish that any of the exceptions would apply to the claim made against the repair shop.


The practice point here is obvious – look to the pleadings first to see what is being claimed, and work from there determine whether any of the Espinal exceptions are applicable to the particular claim.


03/16/17          American Casualty Company v. Motivated Security Company

Appellate Division, First Department

Detrimental Reliance Exception:

In this case, the court addressed the “detrimental reliance” exception to the Espinal defense. Many of the facts included here are taken from the trial court’s written decision from which the appeal was taken. Plaintiff was the insurer of a crane leased by its insured, SBF. SBF was a contractor working on a commercial construction site. The crane, which was stored at the site, was destroyed by fire. The defendant had been contracted by the site owner to provide security at the site and, as claimed by the plaintiffs, was obligated to provide security for the area where the crane was stored.


The security contractor moved to dismiss, arguing that it had no contract with SBF and therefore owed SBF and its insurer no obligation to protect its equipment. Plaintiff’s submitted proof that the crane was stored in an area where the security company was obligated, under its contract with the owner, to patrol. The plaintiffs’ also submitted proof that the various subcontractors on the site had notified the security contractor of vandalism on the site. Although not stated outright, it appears that none of the contractors, upon reporting the vandalism, were advised that the security contractor was not the party responsible for security.


In response to the security contractor’s motion to dismiss on the ground that it owed no duty to SBF and its insurer because SBF was not a party to the security company’s contract with the owner, plaintiff’s argued that because of the language in the contract and because of how the site was managed, it had relied, to its own detriment, upon the security contractor to protect the site, and as such, had forgone hiring its own security to protect its equipment at the site.


Both the trial court and the appellate court agreed, holding that the language of the security contractor’s contract with the owner was sufficient to create the plaintiff’s reliance that the security contractor would protect the entire site, including its crane. In making that decision, the Appellate Court made mention of an required element of a claim of detrimental reliance as an exception to the Espinal limited service rule – that the party claiming reliance had actual notice of the contract at issue. This point, which the Appellate Division noted was not mentioned in the trial court’s determination.


The practice point to take away from this case is that it is not enough for a party to claim that it relied upon the contracting party to perform the service, but that it had actual, concrete knowledge that the defendant was under a contract to perform the service.


05/18/17          Brown v. Garda CL Atlantic, Inc.  

Appellate Division, First Department,

Launch or Exacerbate Instrumentality of Harm:

Plaintiff was an employee of a bank injured when she tripped and fell over several boxes of coins (apparently it was quarters) that had been recently delivered to the bank by the defendant delivery company. The defendant moved to dismiss, citing Espinal in support of its argument that its contract with plaintiff’s employer was simply to deliver the coins to the back and as such, owed plaintiff no duty to make her place of employment safe.


The Court denied the motion, holding that the defendant had failed to meet its burden of establishing that its delivery (and apparent placement of the coins at the location where plaintiff fell) did not create or exacerbate a dangerous condition, thereby creating a question of fact on that point.


I’m not sure that the delivery company really thought that they were going to escape a scenario where they essentially created the hazard, but the practice point is that a moving party need establish more than just the terms of its contract, but establish that each of the exceptions are inapplicable to the circumstances as well.




As anyone who handles cases that might arise out of the use of property for sporting or recreational activities may know, this legal principle and the ever evolving, and generally fact specific case law is often among the first things considered when a new claim is reported.


The basic premise is fairly simple – a property owner is entitled to a complete defense for claims arising from a person’s voluntary participation in sporting and amusement activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” Bukowski v. Clarkson University, 19 N.Y.3d 353 (2012), citing to Morgan v. State of New York, 90 N.Y.2d 471 (1997). The doctrine applies when the consenting participant is both aware of and understands the risks of the activity. The person’s experience with and knowledge of the activity are key to their awareness and knowledge of the risks and is something that need to be explored and documented in discovery. The risks assumed are those open and obvious and inherent in the activity and can include field conditions.


There have been several recent cases that highlight just how fact specific the analysis in these cases can be and what are often contrary applications of the rule.


05/25/17          Legac v. South Glens Falls Central School District

Appellate Division, Third Department

Plaintiff’s Experience And Knowledge Of The Specific Activity Critical to Success on Summary Judgment motion:

Plaintiff was a 15 year old high school student who was injured during tryouts for his school’s junior varsity baseball team. Because of weather conditions in early spring, some of the tryouts were conducted inside in the school’s gym. Plaintiff was struck in the face by a ball during a drill in which a coach hit ground balls towards plaintiff. Plaintiff failed to field a ball, which bounced up and struck him in the face. Plaintiff claimed that the drill was inherently dangerous and violated what would be standard norms for baseball activities, including that the coach and player were positioned too close to each other. Defendants argued that the doctrine of primary assumption of risk precluded the claim


The Appellate Division, Third Department, granted the defense motion, with one dissent. In granting the motion, the court focused on two areas –the plaintiff’s extensive baseball experience, which went back to when the plaintiff was five and included times when he had observed fielders struck while fielding ground balls and the plaintiff’s awareness of the actual activity at the time he was injured. The court noted that this was the fourth practice of the season and that because of the weather three of those practices had taken place indoors, that plaintiff had participated in the same type of drill on two occasions during that time and that on the day of his injury, he had observed the player in line in front of him field 20-25 groundballs. The court determined that this experience gave plaintiff an “adequate opportunity to observe the less than optimal conditions of the gymnasium” and therefore appreciate the risks of the activity.


The plaintiff offered an affidavit from an expert, who opined that the drill was contrary to accepted norms and created an increased risk of injury. Because that expert did not cite to any “industry standards, scientific studies, regulations or other objective bases” to support his opinion, that opinion was deemed conclusory and speculative and therefore immaterial to raising a question of fact to defeat the motion.


The dissent focused on whether the actual risks of the activity itself, based upon the plaintiff’s and coach’s testimony, was apparent and therefor assumed by the plaintiff.


From a practice standpoint, this case highlights several key points, with the primary point being the need to document, through discovery, a plaintiff’s experience and history with the activity and his/her awareness of what was occurring at the time of injury. Of note:


  • The focus was not on whether the actual activity (a fielding drill conducted in a gymnasium) was proper, but rather on the plaintiff’s understanding of the activity, based upon his observations of and participation in the drill in the several days prior to the incident;
  • The plaintiff’s extensive experience in both playing and watching baseball, including his knowledge and awareness that each ground ball is different and that a player attempting to field a ground ball may be struck by the ball;
  • What a party opposing a motion to dismiss need to include in an expert affidavit offered in opposition to a motion – simply opining that the activity violates some sort of general norm, with citation to actual standards or regulations is not enough.




There are a plethora of cases that address what types of activities are subject to a primary assumption of risk assessment, and thereby entitling a defendant to a complete defense, or, if not subject the usual comparative fault analysis. The dividing line between what types of activities are subject to the application of the primary assumption of risk analysis versus basic comparative fault is rather arbitrary and can often lead to contrary results. Consider the following:


04/26/17          Nevo v. Knitting Factory Brooklyn, Inc.,

Appellate Division, Second Department




03/15/17          Brosan V. 6 Crannell Street, LLC

Appellate Division, Second Department


In both of these cases, the plaintiff was injured while attending a heavy metal concert and was injured when struck by another patron who was slam dancing in a mosh pit during the concert. Neither plaintiff was part of the mosh pit. The court denied the defense motions for summary judgment under the doctrine of primary assumption of risk, holding that there were questions of fact as to whether the operators and promoters had made the venue as safe as it appeared to be. By itself, the analysis is pretty standard fare. What is significant is the court continues to add to a line of cases arising out from injuries sustained at concerts by including the statement that it is rendering the decision without deciding the question of whether concerts are an activity to which the doctrine would apply. For instance:


11/12/09          Schonenoom v. B.B. King Blues Club and Grill

Appellate Division, First Department

Plaintiffs are barred by the doctrine of primary assumption of the risk from seeking damages for the injuries plaintiff David Schoneboom suffered when an identified person in a group of slam dancers slammed into him. After observing the open and obvious slam dancing from a safe vantage point, and fully appreciating the risk of colliding with a slam dancer, plaintiff nonetheless elected to place himself in close proximity to that activity, thereby assuming the risk that resulted in his injuries


It’s not clear why the Second Department is refusing to make a decision one way or the other on the applicability of the primary assumption of risk to injuries arising from concerts – it need only look to its neighbors in the First Department for guidance. It is interesting to note that the Brosnan decision references the Schonenoom case, while Nevo references both Brosnan and Schonenboom.


From a practice perspective, in Schonenboon, the First Department case focused on what plaintiff’s awareness of the risk, based upon both his personal experiences and what he observed at the venue on the night of the injury. Other than that, the take away may be to check the map of New York’s Appellate Divisions when purchasing your concert tickets. Having attended numerous concerts over the years where slam dancing has occurred (no heavy metal - they were/are punk shows), I can tell you that from a self-preservation standpoint, there are no good reasons to go anywhere near a mosh pit. My pediatric dentist wife will also tell you it’s a really good way to remove your front teeth.



Toxic Exposures

By: V. Christopher Potenza [email protected]


Greetings and welcome to our inaugural issue of Premises Pointers. Our toxic tort team handles claims statewide, primarily in the areas of lead paint and asbestos exposure. Those are not the only toxic substances however that can land a property owner in litigation as we have handled a wide variety of claims of injury from toxic exposure, including claims of injury internally, externally, and mentally. Yes, we had a claim that exposure to a cleaning solvent caused neuropsychological damage. It was an “insane” claim really in which plaintiff also alleged that the carrier killed his cat in an act of intimidation. But I digress…


The area of Toxic Torts is often a blend of premises liability and products liability claims. This column will try to focus on aspects related to premises claims, but it will also update you on trends and emerging legal issues across the board.


If you would like a refresher course on toxic tort litigation, I was honored to co-chair a recent New York State Bar Association CLE on the subject for the upstate New York audience. The New York City program was webcasted and available for continued viewing and CLE credit. Click here for further details.


On a personal note, while not defending these claims in exotic locations like Mexico, Poland, and Rome (New York of course), my family has recently moved into a new home in North Buffalo. I have three children, a five year-old daughter and twin three year-old boys. Why did someone not tell me that moving with young children is a bad idea? After having the asbestos pipes and tile abated, the window sills scraped and painted, and hard-wired smoke and carbon monoxide detectors installed, I believe the house is now toxic substance free. I still cannot find my clothes however. Perhaps my wife conveniently left them behind in an effort to improve my wardrobe.


As for this month’s column, I would like to highlight some of the important cases from the past few months, including the First Department asbestos causation decision in Juni which is surely destined for the Court of Appeals. Then I am off to prepare for my first father-daughter dance, where my rhythmically challenged kindergartener wants us to perform her latest move, the “step and dab.”


2/28/17            Juni v. Ford Motor Company

Appellate Division, First Department

First Department sends shockwave throughout New York asbestos litigation with rejection of plaintiff’s “each and every exposure” theory.

The decedent-plaintiff was awarded $11 million from a New York County jury. Trial defendant, Ford, was successful in its post-trial motion to strike plaintiff’s expert testimony and set aside the jury’s verdict. The trial court ruled that plaintiff was obligated to prove not only that plaintiff’s mesothelioma was caused by exposure to asbestos, but that he was exposed to sufficient illness-inducing levels of the toxin from his work on brakes, clutches, or gaskets sold or distributed by defendant. The trial court explicitly rejected the testimony of plaintiff’s expert, who opined that “each and every exposure” can be treated as a contributing factor ultimately causing an asbestos-related disease.


On appeal, the First Department affirmed, holding that plaintiffs cannot establish liability by merely alleging that asbestos, or chrysotile, has been linked to mesothelioma. Instead, plaintiff’s causation expert must establish that, through defendant’s products, plaintiff was exposed to levels of asbestos sufficient to have actually caused his disease. Even where it is impossible to quantify a particular plaintiff’s exposure, causation resulting from exposure to a toxin must be established through some scientifically-sound method, such as mathematical modeling of plaintiff’s work history or comparing plaintiff’s exposure with the exposures of similar persons set forth in reported studies.


In Juni, the evidence presented by plaintiff was deemed insufficient to establish that the decedent's mesothelioma was caused by exposure to a sufficient quantity of asbestos contained in friction products sold or distributed by defendant, Ford Motor Company. Plaintiff's experts testified only in terms of an increased risk and about the association between asbestos and mesothelioma. Ultimately, however, they failed to quantify the decedent's exposure levels or to otherwise provide any scientific expression of his degree of exposure relative to Ford's products. The Court explicitly rejected the contention raised by dissenting Justice Feinman that, because it would set an insurmountable standard for plaintiffs in asbestos claims, the proof in asbestos cases need not be analyzed using the same criteria as those used to analyze exposure in other toxic tort cases, namely, the quantification or other "scientific expression of exposure". Instead, the First Department has held that there is no valid distinction between the difficulty of establishing exposure to, say, benzene in gasoline and exposure to asbestos. In either case, a foundation must be laid supporting an expert's conclusion regarding causation.


2/28/17            Dominick v Charles Millar and Son

Appellate Division, Fourth Department

Fourth Department weighs in on sufficiency of proof to establish causation of asbestos-related illness, finding that visible dust is sufficient for plaintiff to meet burden on causation.

In contrast to the First Department’s decision in Juni, the Fourth Department affirmed a $4 million verdict ($1 million past pain and suffering and $3 million in future pain and suffering) to a plaintiff living with mesothelioma. Plaintiff testified that he was exposed to asbestos dust from asbestos boards and cement supplied by Defendant Millar and used in an area of a pneumatic-tool making plant. At trial, Millar argued that there was insufficient evidence to establish that the amount of asbestos in its products was a substantial factor in causing or contributing to plaintiff's injuries. The Fourth Department held that there simply "must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered. Here, plaintiff's expert opined that, if a worker sees asbestos dust, that is a ‘massive exposure . . . capable of causing disease.’” Despite Millar’s contention, the Court determined that the expert opinion, along with the rest of the testimony at trial, was sufficient to establish specific causation.


3/24/17            Taggart v. Fandel

Appellate Division, Fourth Department

Fourth Department re-affirms Chapman standard for establishing constructive notice in lead-paint premises liability claims.

In a premises liability action arising from alleged lead paint exposure, the Fourth Department reversed the trial court and granted summary judgment in favor of defendants. Plaintiff alleged that defendants had actual or constructive notice of deteriorating lead paint on the premises, failed to warn of any hazardous condition, and failed to inspect the premises for deteriorating lead paint. Ruling in favor of the defendants, the Fourth Department expressly held that the standards set forth by the Court of Appeals in Chapman v Silber, 97 N.Y.2d 9 (2001) remain the controlling law as it pertains to establishing constructive notice in residential lead paint claims.


A plaintiff can establish that her landlord had constructive notice of a hazardous lead paint condition by showing that the landlord: (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Here, plaintiff failed to raise an issue of fact as to whether defendants were aware of chipping and peeling paint on the premises, or whether defendants retained the requisite right of entry to the apartment to sustain a claim for constructive notice.


The Fourth Department also dismissed plaintiff’s claim that the landlord failed to inspect the apartment for lead paint and held that, in Chapman, the Court of Appeals expressly declined to impose a new duty on landlords to test for the existence of lead in leased properties based solely upon the general knowledge of the dangers of lead-based paints in older homes.


5/5/17              Stowe v. Furness

Appellate Division, Forth Department

Affidavit of former tenant in lead paint exposure claim is not hearsay if offered for issue of notice.

Defendant stated in an affidavit that she renovated and repainted an apartment in 2009, learned of the lead paint condition for the first time in 2014, and immediately asked plaintiff’s family to move out so that she could remediate the property. In opposition, plaintiff submitted the affidavit of a prior tenant, who stated that the Orleans County Department of Health detected dangerously high lead levels in chipped paint at the apartment in 2006, and that she told defendant about the results at that time. The Court concluded that the affidavit of the prior tenant, in combination with deposition testimony of plaintiff’s husband who stated that he informed defendant of chipping pain in the apartment sometime after 2009, created an issue of fact sufficient to preclude summary judgment. Contrary to defendant’s contention, the out-of-court statements contained in the prior tenant’s affidavit are not considered hearsay because they were not offered for the truth of the matters asserted, i.e., the presence of flaking and chipping lead paint in the apartment, but instead were offered to establish that defendant had notice of the condition.


The Fourth Department further rejected the defense that the parent’s conduct was a superseding cause of the children’s injuries, holding that plaintiff’s failure to remove herself and her children from the premises, two months after discovering the lead paint condition, does not establish such a defense as a matter of law.


5/11/2017        Gordon v. ROR Realty

Appellate Division, First Department

First Department re-instates claim for toxic mold exposure as “new” symptoms were alleged within the three-year statute of limitation.

The tenant-plaintiff alleged various injuries to person and property against landlord. Most of plaintiff’s claims were dismissed as time-barred; however, the First Department re-instated the claim for injury from toxic mold exposure and found that plaintiff sufficiently pled “new” symptoms and injuries, namely eczema and significant fungal growth on his tongue and throat, that occurred within the three year statute of limitations.


Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers,

I am honored to contribute to the newest Hurwitz & Fine newsletter. I will primarily be covering topics that concern homeowners, such as swimming pools, dog bites, recreational activities, and personal injuries sustained on/in the home. These topics are near and dear to my heart as I am new landlord and practicing premises attorney. The intersection of law and real life homeownership has given me a unique perspective into my practice, and I hope has made me a better attorney. Ultimately, if I am not at the office you can find me covered in drywall dust and fielding tenant phone calls.

For our first issue, I have laid out a sample of cases which discuss the standards applicable to dog bites and home owner liability issues. As you will see, many of these cases hinge on knowing who the parties are, what responsibilities they have, and providing the court with the right evidence. I will do my best to point out interesting developments that may affect the treatment of a case moving forward. If there is a topic you are curious about, please let us know! I look forward to exploring premises law in New York with you all. If you have any questions or have an issue you need some insight on, please feel free to contact me at [email protected] or give me a ring at (716) 849-8900. We look forward to hearing from you.

04/19/17          Futter v Hewlett Sta. Yogurt, Inc.

Appellate Division, Second Department

Knowing the responsibilities of each party is imperative in a premises case

I have found that sometimes it is helpful to draw out a case. By that I mean-- do a quick sketch of the cast of characters. Luckily for you, I can use the computer as my artistic skills are negligible.




    Text Box: Rinzler Family 
(property owners)
  Text Box: Dominion 
(property management group)



















Here, plaintiff allegedly was injured when she tripped and fell over the threshold of an entrance door at premises leased by the defendant Hewlett Station Yogurt, Inc. (hereinafter HSY).


The plaintiff commenced this action to recover damages for personal injuries against HSY, Rinzler, and Dominion. After discovery, HSY moved for summary judgment dismissing the complaint and all cross claims as asserted against it. Rinzler and Dominion moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied HSY's motion, and granted Rinzler's and Dominion's motion.


HSY’s Motion


This is where it is helpful to have the drawing; it necessarily helps identify what responsibility each party has. In New York, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. The plaintiff alleged that the defectively designed threshold should have been modified, and not that it was defectively maintained. Pursuant to the subject lease, Rinzler retained control of the "outside entrance doors to the premises," was responsible for making changes to the subject threshold, and did not convey to HSY any rights in that part of the premises. Consequently, HSY had no obligation or right to alter the threshold.


In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted HSY's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.


Rinzler and Dominion’s Motion


The Second Department concluded that the Supreme Court properly granted Rinzler's and Dominion's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Second Department agreed with plaintiff that Rinzler retained authority to make changes to the area where the accident occurred. Moreover, it determined that Dominion failed to prove that it did not have authority to modify the threshold. The Plaintiff may have won the battle; however, defendant won the war.


Rinzler and Dominion demonstrated their entitlement to judgment as a matter of law by submitting evidence that the threshold to the entrance of the premises was approximately five inches high and located in a brightly lit area, and therefore open and obvious and not inherently dangerous.


In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defect was actionable. In his affidavit, the plaintiff's expert architect did not dispute the fact that the premises were constructed in 1924, prior to the enactment of the building code, and cited no requirement that the premises be renovated to meet the building code enacted subsequent to its construction. Plaintiff also erred in its reliance on the Americans With Disabilities Act standards. The ADA does not require renovation of buildings constructed prior to 1991, and the expert cited no evidence that any exceptions to that rule were applicable here. Moreover, Plaintiff’s expert’s reliance on standards promulgated by the American Society for Testing and Materials did not raise a triable issue of fact since those standards are nonmandatory guidelines.


Thus, Rinzler and Dominion’s motion was properly granted.




05/05/17          Berr v Grant

Appellate Division, First Department

Defendant did not properly support its motion for summary Judgment

Plaintiff rented a house with a back deck containing a pool and hot tub from defendants. He testified that, while hosting a party on the deck, he sustained injuries when he was walking on a narrow brick passageway between the swimming pool and hot tub, and slipped and fell into the tub.


Defendants moved for summary judgment dismissing the complaint. In support of their motion, defendants did not submit admissible evidence sufficient to demonstrate that the configuration of the deck, pool and hot tub was code compliant. They did have an expert engineer; however, he merely opined that the code violations identified by plaintiff were not relevant because plaintiff could have taken another path around the pool. Unfortunately for defendants, he never stated that the configuration of the pool and hot tub was up to code.


Defendants also submitted copies of their application for a building permit, a site survey, and the certificate of occupancy, which they argued showed that the layout of the swimming pool and hot tub was approved by the village in which the house was located. However, the certificate of occupancy did not mention any hot tub, and defendants did not submit an affidavit of any person with knowledge explaining the significance of these documents.


The First Department found that defendants’ motion was not sufficiently supported. Additionally, it found that Plaintiff had raised a question of fact with the submission of its expert report. Plaintiff’s expert believed that the walkway between the pool and hot tub, as well as the normal path of travel around the east end of the pool, were dangerous and not compliant with applicable building code provisions.


Defendants’ argument that Plaintiff failed to establish how he fell was also unavailing. Plaintiff's testimony specifying where he fell coupled with engineer's affidavit about the defects, dangerous conditions, and code violations at that site, were sufficient to enable a jury to draw the reasonable inference that plaintiff's accident was caused by the alleged defective conditions present at the accident site.


As such, the denial of defendants’ motion was affirmed.


Dog Bites


05/17/17          Carroll v Kontarinis

Appellate Division, Second Department

Defendant’s deposition testimony established that they had no knowledge of vicious propensities, prior to the subject attack

This case is a pretty good example of how dog bit cases work in New York State. To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities. Courts have held that "Vicious propensities” include acts that endanger the safety and property of others. Plaintiffs have successfully established “dangerous propensities” with evidence such as a prior attack, a dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained.


In this case, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that they were not aware, nor should they have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior. Specifically, the defendants submitted the deposition testimony of the defendant who testified that, prior to the subject incident, the dog had never bitten anyone or bared its teeth, and there were no complaints about the dog's behavior.


The Court determined that the defendant’s motion to dismiss Plaintiff’s complaint should have been granted.


04/26/17          Ciliotta v Ranieri

Appellate Division, Second Department

You only get once shot, do not miss your chance to blow… (I think you know the rest of the song)

Here, the defendant was walking her dog in front of the residence of the plaintiff. An argument between defendant and the plaintiff escalated until the dog bit the plaintiff on the arm. The plaintiff then commenced the present action. The defendants moved for summary judgment dismissing the complaint, on the basis that defendant lacked prior knowledge of any vicious propensities of the dog. Defendant won, and plaintiff moved to reargue, which was denied. Thereafter plaintiff commenced an appeal on the merits and on the lower court’s denial of their motion to reargue.


The Court determined that defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating, through her deposition testimony, that she was not aware, nor should she have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior. Defendant testified that she had purchased the dog when it was two months old, the dog had undergone obedience training, and the dog had never attacked or bitten anyone before the incident at issue.


The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog had exhibited fierce or hostile tendencies was hearsay, which is insufficient, on its own, to bar summary judgment. Therefore, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint. For the same reasons, the court properly denied the plaintiff's cross motion for summary judgment on the issue of liability insofar as asserted against Nicole.


Contrary to the plaintiff's contention, the Supreme Court properly denied that branch of his subsequent motion which was for leave to renew. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion." A motion for leave to renew is not a “do over.”


05/11/17          Olsen v Campbell

Appellate Division, Third Department

 Defendant’s evidence did not help him out

Plaintiff's three-year-old daughter was bitten on the face by defendant's dog twelve year old dog. The attack took place while the child was visiting her grandmother, defendant's girlfriend, at defendant's premises. Defendant moved for summary judgment dismissing the complaint, which was granted. This time, however, the court reversed the holding of the lower court.


The Third Department was unconvinced that defendant met his burden to show that he was unaware of his dog’s dangerous propensities. This means that the burden never shifted to Plaintiff to raise an issue of fact.


In his motion for summary judgment, defendant submitted his deposition testimony, the deposition testimony of his girlfriend, and that of plaintiff to show the dog did not have a known vicious propensity. However, the deposition testimony had the opposite effect. Defendant testified that the dog was chained outside in order to alert him to the presence of people in his yard and to protect business assets on his property. He described his dog as a sort of security guard. Additionally, defendant described an incident three to five years prior to the instant bite in which the dog grabbed a customer's pant leg, though defendant claimed that the dog did not break any skin. The Third Department felt this was evidence of aggressive behavior that should have put defendant on notice.


Further, both defendant and his girlfriend in their deposition testimony expressed concern about children going near the dog, in part because of the danger to children being tripped up by the dog's chain. Defendant's girlfriend was also unsure whether the dog would bite or react poorly if the children were to pet the dog, or grab the dog's hair the wrong way, and testified that the dog was very temperamental.


The Third Department concluded that defendant could not establish that he did not know, or should have known, that his dog had dangerous propensities.


Snow and Ice, Storm in Progress and Tavern Owner/Dramshop Liability

By: Anastasia M. Stumpf [email protected]


Dear Readers,


I am very happy to contribute to Hurwitz &Fine’s Premises Pointers and, as your new weather-and-watering-hole-liability correspondent, I look forward to regaling you with the latest and greatest in snow and ice, storm-in-progress, and Dram Shop Act related case law.


Before landing at Hurwitz & Fine, I worked for a large national insurance carrier where I defended commercial policy holders in premises liability, products liability, Dram Shop Act, and automobile liability actions. I found myself in-house, early in my career, after spending one of my summers as a law clerk at said insurance carrier’s San Francisco Field Legal Office. Being the only person from Buffalo in the office, I was a lightning rod for questions like—do you like Buffalo chicken wings? What is beef on weck? Why is your accent Chicagoan? And, do you think it’s snowing in Buffalo right now?


I guess it’s no secret that Western New York gets its fair share of frozen rain. It’s fitting then that New York’s Fourth Department, situated in Rochester, New York, would lead the way in refining the already-longstanding canon of snow and ice related case law, which is exactly what this month’s first case focuses on.


03/31/17          Dalmau v. Vertis, Inc.

Appellate Division, Fourth Department

Court holds that, even when an employee of the lessee-store monitors the parking lot for snow and ice (and arranges for the hazard to be plowed), the lessee has not assumed any duty to invitees.

Plaintiff slipped and fell on ice and/or snow in the parking lot of a local shopping plaza and later brought suit against the owners of the plaza, the plaza’s property maintenance company, and a grocery store tenant. The grocery store sought dismissal of the case, arguing that, because it did not own or possess the parking lot but was simply a lessee with a right of use for purposes of customer and employee parking, it owed Plaintiff no duty of care and had no obligation to inspect the parking lot for any snow or ice conditions. The owner defendants responded that, although the grocery store may not have owed a duty to the Plaintiff under the terms of its lease, the grocery store had assumed a duty to inspect the parking lot because one of its employees regularly monitored the parking lot and would contact the snow removal contractor directly to resolve any issues with snow/ice on site. Rejecting the property owner’s argument, the Court determined that “[any] personal decision of the [store’s] assistant manager to monitor the lot and contact the responsible entity to remove any snow or ice as a courtesy to customers did not amount to an assumption of control over the parking lot giving rise to a duty of care on the part of [the grocery store].” The Court then underscored the well-established principle that, in order to assume a duty of care, “the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or defendant’s actions must have increased the risk of harm to the plaintiff.” Dalmau at 1800. (Internal citations omitted).


03/21/17          Baumann v. Dawn Liquors, Inc., d/b/a Wines & Spirits et al.

Appellate Division, First Department

Using Defendants’ own Expert Affidavits, the Court finds that Plaintiffs raised a triable issue of fact regarding the creation and/or exacerbation of an ice hazard in response to Defendants’ invocation of the Storm in Progress Doctrine.

New York Courts have long applied the Storm in Progress Doctrine to slip-and-fall personal injury lawsuits. Under the doctrine, a landowner’s duty to remedy a dangerous condition caused by a storm is suspended during the happening of the storm itself and remains suspended until a reasonable time after the storm has ended. If a defendant in such a case can show that the Storm in Progress Doctrine applies, the Plaintiff’s case will likely be dismissed unless Plaintiff can introduce evidence indicating that the landowner undertook some snow removal activity that created and/or exacerbated the hazardous condition that caused Plaintiff to fall. Such was the case in Baumann v. Dawn Liquors.


In Baumann, Plaintiffs alleged that, during an active storm, Mr. Baumann slipped and fell on a patch of ice, while walking in front of a store leased by Dawn Liquors, Inc. The Liquor Store and building owner invoked the Storm in Progress Doctrine and produced expert affidavits from meteorologists who both opined that, on the date of the incident, the temperatures were well below freezing; one of the meteorologists opined that a storm had begun earlier in the day and continued until just after the Plaintiff’s fall. In response to Defendants’ use of the doctrine, Plaintiffs introduced a great deal of testimony to show that Defendants’ actions may have created and/or exacerbated the icy patch that caused his fall. The Plaintiffs’ evidence included testimony that Mr. Baumann himself saw a transparent sheet of ice in the area where he fell; Mrs. Baumann testified that, after she arrived on scene, she observed that the area in front of the store was icy and slippery and contained a sheet of ice approximately 2 inches thick, but could not recall seeing any snow on top of the patch of ice; building owner’s general manager testified that he had witnessed building employees using a snowblower and rotary salt spreader in the area on prior occasions; and the liquor store’s general manager testified that he saw a building employee removing snow with a snowblower on the day of the accident, but could not recall whether any de-icing materials were used.


Despite the evidence of a storm in progress (including Plaintiffs’ concession that a storm was occurring at the time of Mr. Baumann’s fall), the Appellate Court determined that the Plaintiffs had introduced enough testimonial evidence to raise a question about whether Defendants’ snow clearing activities caused and/or exacerbated the formation of a hazard. In fact, the Court actually used Defendants’ expert affidavits against them, stating that, when taken with the testimony regarding same-day snow clearing, it was possible that, due to the drops in temperature, the patch of ice in question formed after the alleged snow clearing.


03/29/17          Dylan v. CEJ Properties, LLC.

Appellate Division, Second Department

Plaintiff retains her own meteorologist to raise questions of negligence related to Defendant’s snow removal efforts

Dylan is strikingly similar to Baumann. In this case, Plaintiff was walking along a public sidewalk when she slipped and fell on a patch of ice. Like the case of Mr. Baumann, it was snowing when Ms. Dylan fell. Defendant invoked the Storm in Progress Doctrine and submitted the affidavit of a meteorologist as well as certified climatological data demonstrating that a storm was indeed in progress at the time of the incident. Plaintiff, however, retained her own meteorologist and effectively raised a question about whether any of Defendant’s snow removal efforts just before the accident had either created or exacerbated the ice condition that caused her to fall.


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


Welcome to Premises Pointers! I have also been receiving my fair share of welcomes from the firm, as the new guy on the Hurwitz & Fine block, having joined the firm about a month ago. Previous to H & F, I worked for a firm based in the Adirondacks and Capital Region which primarily handled insurance defense cases. I grew up in the Albany area, attended St. Lawrence University in Canton, NY and then Albany Law School. Now, I live in Lake Placid with my wife and energetic dog and maintain a wide ranging practice. I am currently enjoying those few precious months of the year that constitute summer in the Adirondacks, largely spending my out of office time mountain biking, hitting a few golf balls and training for a Half Ironman in September. Is the race really only three months away?! I need to get training!

My varied practice has always had a constant backbone – handling insurance defense cases. Having handled insurance defense cases since the day after I was admitted to the bar, when I was shipped from Albany to handle a conference on Long Island, I have handled slip and falls, trip and falls, motor vehicle accidents, Labor Law cases and, of course, elevator cases, which is why you are here! My column will be devoted primarily to reviewing recent decisions in elevator and escalator cases, but I have secured permission from the my trusted editor to write about general litigation decisions of interest from time to time as well.

In this column, I want to focus on the decidedly non-sexy, but important topic of mis-leveling elevators in 2017 Decisions in New York State Courts. Mis-leveing of an elevator occurs when an elevator cab stops at a floor that it is commanded to by its occupants, but does not stop exactly where it is supposed to – parallel or “flush” to the floor. Somewhat paradoxically, a major mis-leveling issue does not generally cause injuries; instead, when the cab lands a few inches above or below where it is supposed to stop, the mis-level is less apparent to the occupants of the elevator cab. Once the occupants go to walk out of the cab to their chosen floor, this difference in height can often cause an awkward step, or trip and fall, depending on which way the cab has mis-leveled, for those exiting. We all know what happens that person takes a tumble.

To compound matters for property owners, elevator repair companies and tenants in this area of mis-leveling further, Courts have frequently invoked the doctrine of res ipsa loquitur, a Latin phrase which means “the thing speaks for itself” and, in the defense lawyer’s vernacular, means “I have a bad liability case; I hope damages are not too bad!” While the second half of my statement may not be technically true, the imposition of the doctrine does send shivers up the spine of those defending these cases, because if a Court grants a plaintiff permission to submit a case to a jury on the basis of res ipsa, the plaintiff is relieved from offering evidence of actual or constructive notice of the defendant in order to succeed on liability. Needless to say, that is a big deal.

Please feel free to contact me if you have any questions, comments or just to say hi – [email protected] or (518) 523-2441.

05/18/17          Rojas v. New York Elevator and Elec. Corp.

Appellate Division, First Department

Defendants’ Motion to Dismiss Denied and Case to be Submitted to Jury on Res Ipsa

Plaintiff, an employee of a nonparty tenant of defendant 45 West Hotel Limited Partnership (45 West), the property owner, alleged she was injured when she attempted to remove a cart from the hotel’s service elevator after the elevator cab mis-leveled. 45 West and two elevator repair companies, one a later incarnation of the first, moved for summary judgment dismissing the complaint.


45 West’s motion for summary judgment claimed that it was an out-of-possession landlord which had no duty to make repairs to the elevator. However, the lease 45 West produced in support of this proposition was illegible – PRACTICE TIP FOR CLIENTS – retain and utilize legible documents! Additionally, 45 West had previously executed a repair contract with the prior elevator repair company defendant, and the First Department found the trial court properly denied 45 West’s motion.


The elevator repair company defendants claimed that the removal of a supply cart from the allegedly mis-leveled elevator “was not extraordinary, unforeseeable, or so far removed from defendants’ conduct as to constitute a superseding act as a matter of law.”


The Court noted that the mis-leveling of an elevator does not generally occur in the absence of negligence that the elevator’s mis-leveing offered in the defendants’ exclusive control and was not due to any contributory negligence on the part of the plaintiff. The Court found that the evidence was sufficient to submit the case to the jury on the theory of res ipsa.


2/22/17            Perry v. Kone, Inc.

Appellate Division, Second Department

Defendant’s Obtain New Trial, But Court Re-Affirms Res Ipsa in Elevator Mis-Level Case

The plaintiff was allegedly injured when she fell attempting to exit an elevator that allegedly mis-leveled by 2-3 inches. Plaintiff commenced an action against the elevator maintenance company, which had a full service contract for the elevator with the property owner. At trial, plaintiff relied on res ipsa and the jury returned a verdict in favor of the plaintiff. The defendant moved pursuant to CPLR 4404(a) to set aside the verdict as contrary to the evidence, against the legally sufficient evidence or in the interests of justice.


The Court recited the standard for an appeal pursuant to CPLR 4404(a), indicating that a motion “may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party.” In considering the facts most favorable to the plaintiff, as required, the Court noted that the plaintiff was not required to previously note the elevator had misleveled. The Court also found the res ispa charge was properly provided to the jury and that there was no evidence that the plaintiff had contributed to her own injuries.


The defendant was still able to obtain an Order for a new trial, on appeal, in this matter. For reasons unexplained in the Decision, the trial court improperly precluded the defendant’s witness who had technical knowledge of elevators with defendant’s attorney during trial.


02/7/17            Connolly v. Samaritan Foundation Inc.

Supreme Court, Queens County

Defendant Elevator Company Fails to Obtain Summary Judgment in Elevator Mis-Level Case; Court Cannot Preclude Res Ipsa Application on Motion

Plaintiff was allegedly injured when she fell exiting an allegedly mis-leveled elevator. While the Court found an issue of fact as to whether the defendant elevator maintenance company had at least constructive notice of prior misleveling incidents with the elevator and whether the company took reasonable care to determine if there was misleveling issues present during its inspections, the Court also noted that it could not preclude the potential of a finding of res ipsa loquitur and thus, summary judgment for the defendant was denied.


The Court indicated what a plaintiff must show in an elevator case to successfully rely on the doctrine of res ipsa loquitur, stating “where a plaintiff establishes the following conditions: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff”

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