Premises Pointers - Volume I, No. 10

Premises Pointers
Watch your step!


Volume I, No. 10

Thursday, March 15, 2018

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

Municipal Liability




            This month we congratulate Jamey Maswick, our resident Lake Placid attorney and Premises Pointers contributor, and his wife Caitlin on the birth of their beautiful daughter Meghan Mary Maswick last week.  While I gave Jamey the option of taking the month off, he managed to get his column in with time to spare!  It also looks like attorney Marc Schulz will be a regular in Premises Pointers – don’t miss his column which includes a case from Erie County involving deposition conduct and sanctions for improperly directing a witness not to answer relevant questions.  Another interesting case is discussed by attorney Anastasia Stumpf involving a Plaintiff’s unsuccessful attempt to keep Defendant’s biomechanical expert from testifying at trial.  


For those in New York State, this month the Torts, Insurance and Compensation Law Section of the New York State Bar Association is sponsoring a day long CLE program entitled Premises Liability: Issues and Considerations.  I am serving as the local chair for the Buffalo program on March 28th where Premises Pointers contributor Todd Bushway is one of the presenters.  You can also attend in person in New York City on March 28th and in Albany on April 11th.  A webcast is also available.  Here is the registration link:


Welcome to our new subscribers!  Please feel free to share this newsletter with friends and colleagues who would find it useful.  If you are interested in being added to our subscription list, just send me an e-mail at [email protected].  And if you have any questions, a problem, a case you want to discuss, please feel free to give me a call or send an e-mail!  I would love to hear from you.    




Hurwitz & Fine, P.C.


1300 Liberty Building, Buffalo, NY 14202

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


Long Island

535 Broad Hollow Rd., A-7, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313



Corporate Woods, Albany, NY 12211
Phone: 518-786-1800, Fax: 518-786-1969


Lake Placid

2577 Main Street, Lake Placid, NY 12946
Phone: 518-523-2441, 518-523-2442


Additional Offices
Albion | Amherst | Niagara Falls | Palm Beach Gardens | Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services

throughout the State of New York

© Hurwitz & Fine, P.C. 2017

All Rights Reserved


Retail, Restaurant and Hospitality Happenings Around

New York State and Beyond

By: Jody E. Briandi [email protected]


02/14/2018      Valente v. Dave & Buster’s of New York

Appellate Division, Second Department

Absent evidence a crime was foreseeable, restaurant not liabilit for criminal actions of a third-party.

The plaintiff was stabbed while at a Dave & Buster’s restaurant and subsequently sued the restaurant claiming it provided inadequate security thus resulting in his injuries. The Court held that the restaurant had a duty to take “minimal” precautions to protect members of the public from reasonable foreseeable criminal acts of third-parties. Since the actions at issue were not considered foreseeable, defendant’s summary judgment motion was granted.




02/20/2018      Dallis v. Hilton Worldwide Holdings

United States District Court, Southern District of New York

Hotel granted summary judgment in slip and fall case commenced in Federal Court based on diversity jurisdiction.

Plaintiff was a guest at the Hilton Hotel in Midtown Manhattan when, upon exiting an elevator at 4:30 p.m., she slipped and fell due to a puddle of water that she denies noticing before the fall.  The hotel security guard who inspected the area immediately after the fall observed no moisture, liquid or anything on the floor.   Further evidence was submitted demonstrating that the elevator lobby was constantly inspected and mopped during repetitive cleaning cycles to prevent the accumulation of water on the floor surface and there was no slip and fall accidents or complaints about water on the floor prior to the accident.  During inclement weather, and specifically on January 23, 2016, the Hilton Hotel implemented enhanced maintenance and safety protocol including the placement of mats at all hotel entrances and the placement of caution signs in the lobby and elevator lobby entrances, but not in the elevator lobby. Of significance for premises owners, “[w]here inclement weather occurs, landowners are neither “required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in [precipitation]” and “do not have an obligation to provide a constant remedy of water being tracked into a building in rainy weather.” See Hickson v. Walgreen Co., 150 A.D.3d 1087, 1087, 56 N.Y.S.3d 157, 159 (2d Dep’t 2017).  The Court ultimately granted the hotel’s motion for summary judgment because the record contained no evidence that anyone observed the alleged puddle of water or any other water on the floor prior to the accident and further concluded the hotel did not have a reasonable opportunity to ameliorate the condition if it existed.


03/01/2018      Rou Dong Yee v. Deluxe Meat Market, Inc.

Appellate Division, First Department

Trial Court decision granting summary judgment reversed, resulting in the resurrection of plaintiff’s motion for sanctions deemed moot by trial court.

The plaintiff slipped and fell on an alleged wet floor of the fish department of defendant’s market.  Defendant’s motion for summary judgment was granted, thus making moot plaintiff’s motion for sanctions based on defendant’s failure to turn over surveillance video.  However, on appeal the decision was reversed and the issue of sanctions was remanded back to the trial judge for a ruling. 


03/07/2018      Ellin v. Best Buy Stores, L.P.

United States District Court, Southern District of New York

Retail store granted summary judgment in slip and fall case pending in Federal Court in part because the Federal Court employed a different standard than would have been used in State Court.  Practice Point: Always consider removal!

Plaintiff entered a “Best Buy” store and slipped and fell on “an accumulation of water” while walking down the steps of a moving escalator, which he observed were wet likely as a result of water being dragged in from outside. He did not see anyone mopping.  Plaintiff does not know how long the wetness was present on the escalator step where he slipped prior to his accident, does not know anyone who made a complaint about moisture or wetness on the escalator steps prior to his accident, and does not know of any Best Buy employee who was aware the escalator steps were wet prior to his accident.  On the incident reported completed, “poor housekeeping” was noted as a contributing factor to the accident.  Testimony was elicited that store employees would place floor mats and wet floor signs at the entry points to the store in response to water brought into the store by rain. Plaintiff argued that Best Buy’s motion should be denied for the following reasons:

  • Defendant would have notice because its employees were positioned near the escalator around the time of the accident.
    •  The Court rejected this argument holding that “as a legal matter, notice cannot be inferred simply from the proximity of Defendants’ employees to the dangerous condition, but rather “from proximity combined with other evidence that the [dangerous condition] was present for an extended prior of time.”
  • The amount or length of time that rain fell in the area around the Best Buy.
    • The Court held this was not pertinent to the condition of water on the escalator inside the store.
  • Finally, the lack of evidence of regularly scheduled inspections by Best Buy.
    • The Court held this does not raise an issue of fact noting that the plaintiff incorrectly relies on the summary judgment standard in New York state courts, where “[t]o meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  In the Second Circuit, Defendants “[are] not required to put forth evidence affirmatively demonstrating its lack of knowledge or its constructive knowledge; rather, it need only show that plaintiff will not be able to prove at trial that Defendant[s] had such knowledge.”

Hence, Best Buy’s motion for summary judgment was granted.


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

By: Todd C. Bushway [email protected]


It’s March.  Cold today, break out the shorts tomorrow and batten down the hatches come the weekend, when wind will blow any desperate leaf still clinging to a branch into the adjoining county.  I have several clumps of snowbells in my front garden, hardy bulbs that are the first flowers of spring. Petite, white blooms arising from a tuft of green.  Despite their heavenly charter to appear with the awakening spring, I have to wonder about the snowbell’s evolutionary development (or perhaps execution of their genetic code) – every year they seem to inexplicably assume the first day after February 1st with more than 10 hours of temperatures above 40° means winter has fled.  Overnight the compact green clump sprouts, bearing tiny white flowers spreading open.  A very heartwarming but inevitably short lived sight, usually disappearing within a day or two, the glimpse of life buried by the next storm, putting the bells into a literal freeze frame.  Come the next thaw, frozen fronds be damned, they valiantly try again.  Rinse. Repeat. While I admire their imprudent pluck, that has to be exhausting.  It would seem a better use of reserves to wait for a longer warm spell before venturing forth….


This month we look at two cases.  The first deals with a limited services contract and looks at whether the contractor had displaced the property owner’s obligation to keep its premises safe.  The second case looks at the interplay between a plaintiff’s claim of negligent supervision during an activity for which the defendant claims plaintiff has assumed the risk of injury through their voluntary participation. 


Feel free to reach out to us with any questions or questionable situations.  We respond to phone calls, emails, written missives and inquiries sent by carrier pigeon or home in notes placed in our book bags.  Our IT people are still working with us on the mental telepathy – we’ll let you know when we get that operational.


02/27/18          Santiago v. K Mart Corporation

Appellate Division, First Department

Limited Service Contracts – Security company for retail store did not displace store’s responsibility to secure its store and plaintiff did not rely on the continued performance of duties by the security company.

This case comes to us under a different procedural context than one normally sees for this type of case – the order appealed to the Appellate Division, First Department was not the result of a motion for summary judgment, but rather the denial of a motion to add a party following discovery.  Certain of the facts in our discussion are taken from the court file and papers below.  The matter is contentious and the court file extensive, with, if I counted correctly, the motion that lead to this decision the tenth motion/cross motion filed in the case.


Under the Court of Appeals seminal 2002 decision Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 (2002), a contractor whose contract provides for only limited duties, does not owe a duty to a 3rd party unless (1) the contract was such that the it entirely displaced the owner’s duty, (2) the actions of the contractor created or exacerbated a dangerous condition or (3) the party seeking to recover can show that he or she detrimentally relied on the contracting party’s continued performance of the contract.


Abel Santiago was customer at a K Mart store who was injured when he fought with a store employee inside a K Mart store located on Baychester Avenue in the Bronx.  We cannot confirm or deny whether a blue light special played a role in the dispute or if a clear winner was declared.  Plaintiff filed his suit against K Mart.  K Mart at one point commenced a third party action against its security company, which was then discontinued.  Several months after that discontinuance and approximately 20 months after the parties had been disposed, plaintiff filed his motion to add the security company as a defendant. 


The appellate decision does not wade into the arguments about the timing of the application, but instead addressed whether the security company owed plaintiff a duty, an analysis triggered by the requirement that a motion to add a party include a showing that the proposed claim has merit.  Focusing on what the contract stated and what actually took place at the store, the court denied plaintiff’s motion.  Absent a duty owed plaintiff, there was no meritorious claim against the security company.


At the onset, the court conclusively stated that plaintiff was not an intended third party beneficiary of the contract, including noting that the security company’s contract contained a clause entitled “No Third Party Beneficiaries.”  This left plaintiff to show that one of the three exemptions applied.  There was no allegation that the security company had created or exacerbated a dangerous condition.  The court dismissed any claim that the plaintiff had relied upon the continued performance of the contractor’s duty because the plaintiff both had no knowledge of the contract between the store and the security company and the plaintiff’s affidavit in support of the motion made no claim that plaintiff relied upon the company’s continued performance.  The question then became whether the security company had taken over or displaced K Mart’s obligation to secure its store.  Although the contract stated the security company’s services included providing for the protection of the store’s customers (a fairly general statement), the store’s loss control officer had testified that in practice, the role of the security company at the store was limited to deterring shoplifting.  Other proof showed that K Mart had retained supervisory authority over the guards and required the security staff to complete training in accord with the store’s own policies and procedures.  


The practice point?  The devil is in the details – evidence about what actually occurred in practice gave the court the clarity to make the ruling.


02/23/18          Folgar v. Uniondale Union Free School District

Once primary assumption of risk is established, claim is barred and plaintiff may not recover under alternate theory that the activity was negligently supervised.

*Please contact me directly for a copy of this case*

Although a trial court decision, this case takes a look at the intersection of two theories – a claim of negligent supervision andcourt the risks assumed by a participant in the activity.


Plaintiff was a 7th grader when she was injured when struck by the bat wielded by a teammate during a softball game.  The injury occurred when plaintiff removed her helmet (with attached faceguard) after batting.  Instead of heading directly back to the bench as she had been instructed, plaintiff stopped near where the on deck batter to their practice swings, one of which hit plaintiff in the face.  Plaintiff was playing for a school team at the time and claimed the school had provided negligent supervision because the coaches had not instructed the players to keep their helmets on until they returned to the bench and for the location of the on deck circle.


The school district moved to dismiss under primary assumption of risk, arguing that as a voluntary participant, plaintiff, who testified to her experience and practices with the team, had assumed the risks of playing softball, including being hit by a bat swung by a teammate in the on deck area. 


The court granted the district’s motion, and, citing to appellate division case law, noted that once it was established that plaintiff had assumed the risks, the claim was barred, including any claim that negligent supervision was a cause of the accident and injury.  This makes sense – if the party is aware of the risk, which would include the risk occasioned by the allegedly poor supervision, the risk was among those assumed. 


There are limits to this – consider the Appellate Division, Fourth Department case of Ulin v. Hobart and William and Smith Colleges, 68 N.Y.S.3d 358 (4th Dept. 2018), discussed in last month’s column.  Ulin was injured when her small sailboat capsized during an introductory sailing class offered by the college.  The school’s motion for summary judgment under the primary assumption of risk doctrine was denied on the basis of whether proper instruction had been given regarding how to deal with a capsized boat and whether the instructor should have allowed the students, at their experience level, onto the lake in view of the conditions present.  Those factors fit both an argument that the instructor unreasonably increased the risk of the activity, refuting the assumption of risk argument or that the activity was not properly supervised. 


That double application forms the basis for a rejection of a primary assumption of risk defense in the Fourth Department’s decision Capuano v. Rochester Institute of Technology, 71 A.D.2d 1592 (4th Dept. 2010).  In that case, plaintiff was injured while using a leg press machine in a class led by an instructor with no formal background in weight training.  The alleged lack of supervision may have created risks that were not reasonably anticipated, and you can’t assume an unknown risk.  Put another way, negligent supervision remains a viable claim “only insofar as the risk upon which the action is based has not been assumed.”  Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246 (1st Dept. 2008).


Toxic Exposures

By: V. Christopher Potenza [email protected]


I’m sure our readers will delight as there is nothing of interest at the appellate level in the land of toxic torts from last month.  No asbestos decisions, no lead paint, mold, or other noxious substance alleging to cause harm across our great state.  I am pleased to report however that the plaintiff’s appeal of our lead paint defense verdict from August 2017 in Albany County was dismissed for failure to perfect, so the verdict stands!

Instead you will be treated to a St. Patrick’s Day themed Dad joke:

What do you get when you cross a four-leaf clover with poison ivy?


A rash of good luck on St. Patrick’s Day.


As my very Irish wife loves to point out, the four-leaf clover actually has nothing to do with St. Patrick’s Day.  The shamrock is associated with Ireland because Saint Patrick, Ireland’s patron saint, is said to have used the plant as a metaphor for the Catholic Holy Trinity of the father, the son and the holy spirit.


Description: Image result for shamrock vs four leaf clover got it


So, if you see some unsuspecting lad wearing a four leaf clover on St. Patrick’s Day, make sure to point out how wrong they are… if my wife does not beat you to it.


Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers:


I am in the minority with my love of the clocks springing forward.  Most people lament the loss of sleep, but any reduction in sleep is well worth the added sunlight hours.  (However, if I am being honest, all the snowy weather here means that there isn’t much sun anyhow).  Furthermore, March is always a great month because it hosts my second favorite holiday of the year- St. Joseph’s day. I bet you thought I was going to say St. Patrick’s Day! If you don’t know much about St. Joseph’s day, that’s okay, I like to think of it as a sort of Italian Thanksgiving. The gist of it is that Sicilians were experiencing a terrible drought and prayed for rain—and you guessed it, they got rain in the nick of time.  To show their appreciation they threw a big feast to feed the poor.  There is no meat, unless you count sardines, and it is customary to invite the less fortunate.  My family has a long tradition of getting together, making sfingi and cardone. I try to hold onto my lucky dried fava bean for as long as possible before I inevitably send it through the washer.  They say your fava bean will bring you fortune and your wallet will never be empty. I suppose my great aunts are right, the year I held onto my fava bean my wallet was never empty—it had my bean in it.


It can’t all be feasts and fables here in Premises Pointers so, this week we have two cases involving security guards. One is a tragic case involving a four year old boy living in a domestic violence shelter.  The young boy was returning home to his mother’s residence at the shelter.  He was accompanied by his father.  The father had observed four men trailing him for about a block before they came upon the shelter.  The boy’s father called out to the guards to let his son into the facility because he detected trouble.  It was against the shelter’s policy to accept children without being signed in by the resident.  Moreover, the guards had been instructed to avoid involvements in altercations outside of the premises.  Nonetheless, shortly after the boy’s father requested the guards take the boy inside, a physical altercation commenced with the one of the four men.  The boy, tragically, was shot and paralyzed as a result.  The First Department considered where the guard’s (and the shelter that hired them) duty started and stopped.


Our second case is far less serious; we have an injured guard who repeatedly fell while taking the same shortcut to his car after a snow and ice storm.  The Court repeatedly refers to this area as a “berm” which, according to the dictionary, an artificial ridge or embankment.   Plaintiff testified that he had to hold on to trees and bushes to scale the berm, so it is unsurprising that the Defendant as unaware that Plaintiff used this as a short cut.


I hope everyone has a wonderful week!




01/04/18          CB v Howard Sec

Appellate Division, First Department

The secure company’s duty to a child extended to the sidewalk outside of the domestic violence center.

An infant, CB, and his mother were living in a domestic violence shelter owned and operated by defendants (collectively, Sammon). Defendant Howard Security had been hired to provide, among other things, security for the residents of the shelter. On November 8, 2011, CB was being returned to the shelter by his father when a man later identified as Mauricio Acosta the child’s father and pulled out a gun in an attempted robbery. A struggle commenced during which time the gun discharged, leaving the four-year-old boy paralyzed from the waist down.  Surveillance videos indicated that four men involved in the attempted robbery, and had been following the pair down the street.


The shelter's director testified that the hired guards were unarmed and were not to intervene in any altercations outside of the building. The guards were not to take responsibility for any child waiting for a parent.


An action was commenced against the premises owner and the security company for breach of duty.  Additionally, CB’s father alleged that he had asked the security guards to take CB, because he feared a “problem” after spotting the men following them.


The First Department rejected Defendants’ argument that they had no common-law duty to CB because the shooting took place outside the building, i.e., because CB was on the street side of the gate.  The First Department concluded that none of the cases relied on by Sammon involved security guards refusing to let a child resident, in obvious danger, enter the premises.


The First Department pointed out that allowing a child in danger to enter the shelter does not appear to be in derogation of any rules prohibiting unarmed guards from intervening in an altercation.


Ultimately, the First Department determined that it was a question of fact whether there was sufficient time for the security guards to let in CB.


11/22/10          Harding V. Villages of Huntington

Appellate Division, Second Department

The  it was not forseeabel that the “bern” was being used as a walkway, and as such defendants did nto have notice that it perform snow and ice removal.

Plaintiff, while on duty as a security guard at the Villages West gated community, sustained injuries when he slipped and fell on snow and ice while taking his usual shortcut through a sloped landscaped to where he parked his vehicle. After parking his car, plaintiff would climb up the berm (artificial embankment) by holding on to trees and shrubs to get to his assigned gatehouse post. On the date of the fall, plaintiff left his post and descended the berm to assist his coworker with de- icing his vehicle. When he reached the base of the berm, plaintiff, while still on the dirt surface slipped and fell on snow and ice. He was able to get up, return to his post, and continue working though his shift. Near the end of his shift, he descended the berm to his vehicle when he slipped and fell on ice and snow a second time in essentially the same area where he previously fell. Consequently, he sustained injuries to his neck, pelvic area, hand and back.


Initially, plaintiff parked his vehicles in the "turn-around" area in the back of gatehouse. After a few months, Defendants prohibited them from parking in that area due to complaints from the residents. Plaintiff claims that he was directed to park in the cul-de-sac which was about 200 yards away from the post. Defendants deny issuing any such directive. Plaintiff stated that he took the shortcut through the berm for about three months.


Defendant moved for summary judgment, in part, on the basis that they they lacked actual and/or constructive knowledge of the condition that caused the injury, they did not create the hazardous condition that caused the injury, and they owed no duty to plaintiff to maintain the berm as it was not a pathway and/or walkway nor were they aware that plaintiff and his coworkers were using it to access their vehicles.


To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants to discover and remedy it. It is also well settled that a property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence


Defendants submitted the testimony of several of its representatives to establish that it did not know that security guards were using the berm as a short cut. The Court noted that the plaintiff s testimony describing the physical appearance of the berm supported defendants' arguments that the berm was not intended for use as a walkway. Plaintiff testified that the slope of the berm was so steep that "(he) had to hold on to some of the bushes getting up and down." He also indicated that he was still on the dirt and holding on the bushes when he fell.


The movants were therefore entitled to summary judgment as they had no duty to maintain free of snow and ice an unpaved area that was not intended to be a public walkway.


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

By: Anastasia M. Stumpf [email protected]


Dear Readers,


            This is an extremely unpopular opinion, but I love the winter.  Snow is pretty, heated blankets are great, and, in total honesty, I hate (HATE) feeling too hot.  I guess my love of all things wintery should come as no surprise since I chose the month of February (in Buffalo no less) to get married and Montreal as a honeymoon destination.  Even I, however recognize when I’ve had too much of a good thing and, right now, I (and everyone else in the northeast) have had enough cold, blustery, snowy days.  So, as I finally cry “uncle” on winter, this month’s cases will focus on a variety of topics unrelated to snow, ice, or any type of storm-in-progress.  Instead, this month’s cases relate to various questions I’ve been asked in the last few months.

            In our first case, we have a lawsuit against a substance abuse rehabilitation facility that arose after the mentally ill decedent wandered out of an alcoholism treatment program and was found deceased in the nearby woods.  Our second case involves a Plaintiff’s unsuccessful attempt to keep Defendant’s biomechanical expert from testifying at trial.


01/29/18          Hairston v. Liberty Behavioral Management Corp.

Appellate Division, First Department

For the purposes of negligence and wrongful death actions, a detoxification rehabilitation facility is not a nursing or home or similar facility.

In a wrongful death action, it was established that Plaintiff’s decedent was known to suffer from schizophrenia and bipolar disorder when decedent voluntarily entered defendants’ substance abuse rehabilitation facility known as “Arms Acres.” While receiving detoxification treatment for long-term alcoholism at Arms Acres, decedent was administered medications for his psychiatric conditions, but, ultimately, made no progress in treatment, exhibited a number of behavior problems, suffered from hallucinations, and was noted to be disoriented.  Three days after entering the facility, decent wandered outside and was brought back in a confused state.  Sometime after, he wandered out of the facility a second time.  Decedent’s body was ultimately found in the woods, approximately one mile from Arms Acres; his cause of death was undetermined.


Following the discovery of decedent’s body, Plaintiff brought claims of negligence, wrongful death, and violation of Public Health Law § 2801-d against the owner of Arms Acres. Notably, Public Health Law § 2801-d, among other things creates a private cause of action for patients of residential health care facilities and provides a pathway to compensatory and punitive damages for injury as well as attorney’s fees for Plaintiffs.  Under the law, the resident of a healthcare facility may initiate a lawsuit where the facility deprived the patient of any right or benefit created or established (by contract, state law, or federal law) for the well-being of the patient. However, the statute also states that no person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent the deprivation or injury may be held liable.  Injury is specifically defined to include physical or emotional harm, death, and financial loss.


In attempting to dispose of the Hairston lawsuit, Defendant argued that it owed decedent no duty of care; that Plaintiff could not show causation because of the undetermined cause of death; and that Arms Acres was not a facility that could be held liable under Public Health Law § 2801-d.  The First Department, largely disagreed, holding that merely pointing to the gaps in an opponent’s evidence (i.e. citing the undetermined cause of death), was insufficient to satisfy the defendants’ burden on summary judgment.  The Appellate Court did, however, agree that Plaintiff’s statutory claim, made pursuant to the Public Health law, was improper because Arms Acres is not considered a nursing home or similar facility under the jurisdiction of the Department of Health.  As such, a person injured in a alcohol or drug rehabilitation facility outside the purview of the Department of Health may not maintain a private cause of action under Public Health Law § 2801-d.


02/14/18          Thomas v. YRC Inc. and Lance Morgan

U.S. District Court, Southern District of New York

Witness, an expert in biomechanical engineering and medicine, permitted to testify on behalf of Defendants.

*Please contact me directly if you would like a copy of this case*

Plaintiff alleged that he sustained serious injuries to his shoulder, knee, lateral meniscus, lumbar and cervical spine, after a June 7, 2016 motor vehicle accident involving Defendants’ truck.  During discovery, Plaintiff conceded that some of his injuries may have been the result of aggravation of existing injuries from a prior, December 2015 motor vehicle accident. 


Because there was a question of causation, Defendants disclosed their intention of calling an expert witness in the fields of medicine and biomechanical engineering and proffered a 26 page report in which their biomechanical expert opined that: (1) the impact vehicle acceleration against plaintiff’s vehicle resulting from the collision with Defendant’s truck was low; (2) Plaintiff’s body experienced limited movement within his vehicle; and (3) Plaintiff’s knee, shoulder, and spine injuries could not be attributed to the subject-accident because of the minimal impact and body movement. The expert’s opinion was based upon police accident reports, pre and post accident medical records, photographs of vehicle damage and the accident location, insurance documents, deposition testimony, and information about the vehicles including geometry, inertia, and stiffness information.  And, notably, the proffered witness held a bachelor’s degree in engineering, master’s and doctoral degrees in bioengineering, as well as a medical degree in medical sciences from a school in Iran.  He not only worked as a primary care physician for five years, but, at the time of his evaluation of the case, was the principal scientist at Pittsburgh Biomechanics and a professor of Bioengineering at the University of Pittsburgh.  This employment was preceded by three years as an engineer at Exponent Failure Analysis Associates.  He engaged in a great deal of clinical research and published one article and two abstracts during the course of his career.  Nevertheless, Plaintiffs sought to preclude the expert’s report and testimony, arguing that (1) he lacked the necessary qualifications to give expert testimony because his medical degree was from Iran; (2) that the expert’s opinion was not grounded in sufficient facts or data; and (3) the witness had previously been precluded from testifying in a New York state court. 


In disposing of Plaintiff’s arguments, the Court, citing the Federal Rules of Civil Procedure and Evidence, clarified that a biomechanical engineer with a medical degree may testify about specific causation.  The Court went on to state that the expert at-issue was qualified, despite obtaining his medical degree in another country, because spent some time actively treating patients and completed multiple medically-related degree programs, as well as medically-related research, in the United States. Specifically, the Court declared that, although the expert lacked an American medical degree “this fact alone does not negate the significance of his prior formal medical training, experience treating and diagnosing patients or his extensive research on the overlap between engineering and medicine.”  More importantly, the Court pointed to the fact that questions about an expert’s qualification usually go to the weight of the expert’s testimony, not its admissibility.  The Court then disposed of Plaintiff’s second argument, that the expert’s opinion was not grounded in sufficient facts or data, stating that the expert’s use of Plaintiff’s medical records and evidence exchanged during discovery are (or should be) reliable enough to support the expert’s opinion.  Finally, the Court rejected Plaintiff’s final argument, that the expert should have been precluded in the case at bar because he had previously been precluded from testifying in state court, on three grounds—(1) because federal and state court’s evaluate expert testimony under different standards; (2) because there is no requirement that an expert be previously qualified to testify; and (3) every motion challenging the admissibility of expert testimony should be fact-specific.


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


Well, that happened! My wife went into labor three and half weeks prior to her due date and after some time spent in the hospital, we emerged with our beautiful new daughter Meghan Mary Maswick. We are overjoyed!


So far, I have found that everything that my friends with children said would happen has come true. I am finding that I can operate on a lot less sleep than I ever thought possible! Your entire purpose in life changes; it is a stark, complete and immediate transformation which no matter how many times you hear about, you cannot adequately prepare for. And it is glorious!


Now, we just need to figure out how to have our daughter fall asleep without being held. So far this has been quite the challenge for my wife and I, but thankfully Meghan has very involved grandparents! The support that we have gotten from our friends, family and the surrounding community is also awesome! Everyone’s generosity is incredibly appreciated, unexpected and has made our lives much easier. The simple act of dropping off dinner goes further than anyone knows! Or at least, further than I ever knew it would!


A few new elevator cases for you this month. As always, please feel free to send me a note to [email protected] with any questions, comments or just to say hello and, as always, the invitation to stop by our Lake Placid office is extended to chat in person.


03/06/ 2018 – Ocasio v. Dormitory Authority of State of New York

Appellate Division, First Department

First Department Clarifies Application of Res Ipsa in Metal Washer Projectile Injury

The plaintiff alleged she was injured at her workplace, a hospital, while she was standing near doors to the elevator. She heard a “gunshot-like” noise and testified she was struck at the top of her forehead by a hot metal object, causing her to lose consciousness and wake up in the emergency room. A metal washer was retrieved from the scene. The defendant, the Dormitory Authority of the State of New York, had contracted to lease and operate the building in which the accident took place and DASNY had a contract with Nouveau to install an “infant abduction system” equipment on the elevators.  Nouveau also contracted with the hospital to provide elevator maintenance services.


The First Department found that defendants DASNY and Nouveau both established their entitlement to summary judgment as a matter of law indicating that the work done by Nouveau in the elevator shaft adjacent to the elevator in which the plaintiff was riding required no washers or welding equipment. Plaintiff, however, raised a triable issue of fact with circumstantial evidence that Nouveau had workers several floors above where the accident occurred and with no other construction crews in the vicinity of the elevator bank in question, it was more likely than not that the injury was caused by negligence on the part of Nouveau rather than someone else. The Court found that despite the fact that plaintiff failed to plead res ipsa loquitur, this did not preclude its application against defendant Nouveau. The Court denied Nouveau’s motion for summary judgment but further indicated that on the record it had before it, it could not determine whether res ipsa loquitur was applicable to defeat Nouveau’s motion for summary judgment.


The Court found that summary judgment was properly granted to DASNY as it had no notice of the hot washer and therefore could not be negligent. Res ipsa did not apply to DASNY because the plaintiff extended no argument that DASNY was in control of the washer, nor did plaintiff argue that DASNY is properly held vicariously liable for any defect created by the elevator company.


02/15/2018 – Lebron v. New York City Housing Authority

Appellate Division, First Department

Despite Elevator Malfunctions and Delay Descending to Ambulance, New York City Housing Authority Not Liable for Death.

The eventual decedent told her mother that she was experiencing an asthma attack and the mother asked her other daughter to call 911 and began CPR. EMT’s arrived to the decedent’s residence and found she had no pulse, no vital signs, no blood pressure and appeared to be in cardiac arrest. Further medical services were required due to the decedent’s condition, but she remained in asystole, which is a complete “flat line” condition indicating no heart rhythm. The paramedics on the scene decided to transport her to the nearest hospital nonetheless. The decedent was loaded into a Stokes basket due to her size and put into the elevator to bring her into an awaiting ambulance. However, as testified by the decedent’s mother and the paramedics who responded, the elevator stopped and was stuck between floors at least twice while they attempted to bring the decedent to the ambulance. The delay in proceeding to the ground floor was between 16 and 21 minutes long due to the issues with the elevator’s operation.


The plaintiff, the decedent’s mother, sought to recover damages due to the Housing Authority’s negligence in maintaining the elevator, claiming that it delayed paramedics from transporting her daughter to a nearby hospital for more intensive treatment which could have saved her daughter’s life. The Court found that the Housing Authority failed to demonstrate that it had a lack of prior notice of elevator stoppages, as its employee testified about prior stoppages and maintenance records indicated the elevator had numerous malfunctions and stoppages in the two months prior to decedent’s death.


However, the Court ruled that the plaintiff had failed to show that any negligence on the part of the Housing Authority was the proximate cause of the death. The Court found that as a matter of law, the Housing Authority had presented unrefuted evidence demonstrating that the decedent was, for all intents and purposes, already dead by the time she was loaded into the elevator. An expert witness for the Housing Authority had opined that the outcome for the decedent would not have changed had the transport time within the elevator been shorter. The plaintiff failed to oppose this expert’s affirmation and failed to show that the elevator stoppage did not change the outcome for the decedent, nor show that the Housing Authority’s negligence “was a substantial cause of the events which produced the injury”, as plaintiff did not submit an expert affidavit.  The Court found that the plaintiff was clinically dead and that the time spent in the elevator did not have a substantial effect on her prospects for survival and the plaintiff had no evidence that decedent would have had a better chance of survival had the elevator not stopped.


It is surprising that plaintiff here did not provide an expert affidavit to indicate that but for the elevator stopping, decedent would not have passed away.  It is possible that plaintiff could not find a doctor to aver to this opinion.  Had an expert affidavit been presented, it seems likely an issue of fact would have been established and plaintiff’s case would not have been defeated on a motion for summary judgment.


New York Discovery Angles and Municipal Law Highlights

By: Marc A. Schulz [email protected]


Greetings Premises Pointers Subscribers,


This month we have an important decision from our own backyard issued by Supreme Court Justice Walker in January regarding appropriate conduct during depositions and what happens when counsel instructs his client not to answer questions that are material and relevant to the claims. The Zbigniewicz v Sebzda decision is a must-read for practitioners and adjusters alike as it spells out a party’s discovery obligations under New York’s liberal disclosure rules along with a discussion on sanctionable conduct.


On a less serious note, for those interested in the results from my basketball tournament last weekend or simply want to chat about their March Madness brackets or the latest NFL free agency moves (GO BILLS!), feel free to send me an email. Until next time… 




01/08/2018      Zbigniewicz v Sebzda

Supreme Court, Erie County

If you have no basis to direct your client not to answer deposition questions, be prepared for sanctions, including the cost it takes your opponent to prepare to argue the ensuing motion

Plaintiff’s counsel, at his client’s deposition, directed him not to answer a variety of questions, including, what is his social security number (both on and off the record), whether he takes medication for unrelated conditions, as well as any prior complaints and treatment, including mental health providers, and if he has been involved in any other lawsuits and other accidents.


Justice Walker granted defendant’s motion to compel a further deposition and awarded costs associated with the continued deposition as well as the cost of the instant motion. The trial court reviewed New York liberal discovery obligations and reiterated the rule that a proper directive not to answer a deposition question is limited to questions that are “clearly violative of the witnesses’ constitutional rights, or some privilege recognized in law, or are palpably improper”. 


Here, Justice Walker held plaintiff’s SSN constitutes relevant evidence as it is “reasonably calculated to lead to admissible evidence”, even where plaintiff is not asserting a lost wage claim. The Court held defendants were also entitled to investigate plaintiff’s prior claims or injuries, medical treatment, and criminal history. Finally, the Court found the conduct of plaintiff’s counsel in taking unfounded and factually incorrect positions, even after being shown he was wrong, in addition to failing to follow the Court’s directives, led to sanctions because the Court found the attorney’s conduct “was willful and contumacious”.


02/14/2018      Hurk-McLeod v Slope Park Assoc., LLC

Appellate Division, Second Department

If you cannot show that you were not negligent, then you are not entitled to a conditional order of summary judgment

Plaintiff allegedly sustained injuries when she fell on a portion of the sidewalk abutting YMCA’s and Slope Park’s properties, which was occupied by CVS. Contractor Mc Gowan Builders was retained by the YMCA to construct an aquatic center on the portion of its property abutting the sidewalk. Plaintiff claimed the sidewalk was defective and there was snow and ice present along the curb line.


The trial court granted Mc Gowan Builders’ motion to dismiss the third-party complaint, and denied CVS’s cross-motion to dismiss the second third-party complaint and all cross-claims and for conditional summary judgment on its cross-claim against Slope Park.


The Second Department held that Mc Gowan Builders was entitled to dismissal of the third-party complaint since they did not create any alleged dangerous condition or entirely displace the abutting property owners’ duty to maintain the sidewalk on or before the accident. However, CVS was not as lucky since they failed to show that any snow and ice removal efforts by either them or person on their behalf did not exacerbate the hazardous condition, and therefore was also not entitled to a conditional order of summary judgment on its cross-claim against Slope Park.


02/21/2018      Dragotta v Norwich Gate Co., DE, LLC

Supreme Court, Suffolk County

If third-party defendant owes no duty to plaintiff, then third-party defendant is not liable to property owner where no duties existed outside of the contractual obligations

Plaintiff tripped and fell on the walkway in front of her apartment at Norwich Gate’s property. She alleges the walkway was two inches higher than the grass and her fall was caused by the height differential. Third-party defendant Licari Landscaping was retained by Norwich Gate to perform landscaping services and was responsible for trimming and edging the grass by the walkway.


The trial court dismissed the claims against Norwich Gate as they demonstrated no dangerous or defective condition existed because the height differential between the grass and walkway where plaintiff fell was so trivial it was not actionable as a matter of law. Plaintiff failed in opposing the motion to demonstrate whether the alleged defect was a hazardous condition such that defendants could have reasonably foreseen that it would cause an accident. The trial court also dismissed the third-party claims against Licari since it owed no duty of care to plaintiff, and therefore owed no duty of care to Norwich Gate independent of its contractual duties.




Newsletter Sign Up