Premises Pointers - Volume I, No. 11

Premises Pointers
Watch your step!


Volume I, No. 11

Sunday, April 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. McCarthy

[email protected]


James L. Maswick

[email protected]


Marc A. Schulz

[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




While the calendar says it’s Spring, the weather this Sunday morning in Buffalo includes snow, freezing rain and an accumulation of very thick ice.  Not exactly what we were hoping for.  If you fall into the category of premises owner, you should remember this date because it is definitely a “storm in progress” kind of day, hence making Anastasia’s column on snow and ice very timely!  Also from Anastasia this month is an article she wrote that was published recently in the WBASNY WNY (Women’s Bar Association) Newsletter entitled (Ms.) Adventures in Litigation Practice—What I Wish I Had Known.


Other cases of interest this month include Jamey’s summary of the recent Court of Appeals decision Rodriguez v. City of New York wherein the Court of Appeals majority ruled a Plaintiff is not required to establish the absence of their own comparative negligence to triumph on a motion for partial summary judgment on liability; Marc’s summary of the attorney work product privilege and other exemptions from disclosure as discussed in the case of Peerenboom v Marvel Entertainment, LLC; and the Fourth Department’s decision in Hale v. Holley Central District, a case that I argued involving a sudden and spontaneous attack on a student during gym class by his classmate.


As always, 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 would like to be added to Coverage Pointers e-mail Dan Kohane at [email protected] and/or Labor Law Pointers e-mail David Adams at [email protected]



Hurwitz & Fine, P.C.



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(Ms.) Adventures in Litigation Practice—What I Wish I Had Known

By Anastasia McCarthy


            When I was a kid, my parents brought home an entire book of Magic Eye puzzles.  As an adult, I have a vivid memory of sitting in the family basement with that book and thumbing through the pages as my initial amusement quickly turned to extreme frustration.  Staring into the center of each page, I remember slowly moving the book back and forth, an arms-length distance away to the tip of my nose until, inevitably, the book was tossed aside.  Despite my strenuous, daily, attempts to find the truth at the center of the Magic Eye conspiracy, it was quite some time before even a single Magic Eye image revealed itself to me.  When I finally did see that elusive school of fish, I couldn’t un-see it; instead, the images just became more pronounced to me. 

            An unspecified number of years later, I began practicing law.  When I graduated from law school, I abstractly knew what the broad brush-strokes of gender bias looked like, but, if I’m totally honest, I had little appreciation for what that meant in the day-to-day life of a female litigator.  In fact, I didn’t really have my great “AHA!” moment until I had a rather unfortunate (and rather public) moment of clarity.  More importantly, now that I’ve seen it, I can’t un-see it.  I can’t un-see the pat on the head I once received from opposing counsel, or that moment he stepped away from the podium in open Court to deliver his argument to the top of my head while I sat at counsel table; I can’t avoid noticing that, in a gallery full of attorneys, there are usually only two or three women; and I certainly can’t ignore the moments of interruption, condescension, and public belittling that I, and many of my female colleagues, seem to experience regularly.

            Admittedly, what I am writing about here are my own, personal experiences.  Some of you may resonate with these experiences, but others may not and that’s fine.  I will say, however, that there is a universal thread to the experience of being a female litigator and quite frankly, it’s a little frustrating.  For example, the 2017 Law360 Glass Ceiling Report (recently reported on by Elizabeth Olson of the New York Times), indicates that, while 50.3% of law school graduates are women, only 35% of those graduates go on to work in law firms and only 20% of those women at law firms hold equity partnership positions (a number that has remained “static” for several years).  The underrepresentation in leadership also extends to an underrepresentation in the courtroom.   In fact, the New York Bar Association recently reported that lead counsel positions are occupied by women only about 25% of the time.  

            My own experiences have led to a lot of self-reflection, including reflection on what I wish I had known when I first entered legal practice.  At this point, I’m up to a five point checklist:


  1. Take the high road, but don’t be afraid to also take a stand—One of the things I have come to realize is that practicing law as a woman means going through an uncomfortable growth spurt.  Our society can encourage women to be polite and demure.  This means operating under an umbrella of humility, letting others speak over us, and qualifying our more “controversial,” polarizing, or “disagreeable” opinions. Naturally, these qualities don’t jive well with the more adversarial nature of litigation.  Take care to re-train yourself.  You don’t need to take the bait and stoop to an antagonistic low, but stand up and let it be known that you will not allow passive aggressive head-patting or intimidation tactics designed to keep you from advocating for your client.


  1. Push for, and take, opportunities—If there is a case you are interested in working on, a role you are interested in filling, or an activity you’d like to participate in, make it known.  Be bold, be direct, and ask for the opportunity.  


  1. Mentorship- Learning to navigate legal practice sometimes puts you in the uncomfortable position of needing to betray your old training in feminine politeness. Find a mentor who will help you grow, develop, and overcome your instincts to nicely comply with those unwilling to do the same.  Once you’re comfortable, become a mentor for someone else.


  1. Take yourself seriously—Be confident in your abilities, or, at the very least, pretend that you are confident in your abilities.  Cut qualifiers and equivocation out of your daily speech; state your argument without apology; do not feign confusion to soften the blow of a hard won argument or point; speak up in inter-office and client meetings. 


  1. Be visible—Take any and all opportunities you can to show that you are an expert.  Write articles, give presentations, and join organizations that will allow you to meet others interested in your area of expertise. 


I like being an attorney.  I regularly find myself challenged on an intellectual level, and from the very beginning, I have witnessed my own personal growth on a molecular level. I know that I have many years of practice ahead of me, and that the knowledge I have yet to gain remains incomprehensible to me this early in my career.  I remain extremely grateful for the wisdom of those trailblazing women trial lawyers who not only cleared the path ahead of me, but regularly embolden and empower me to continue on for those who will follow.  I may never un-see the unpleasant bias that exists against female litigators, but actively working to combat it has become liberating.


Retail, Restaurant and Hospitality Happenings Around

New York State and Beyond

By: Jody E. Briandi [email protected]


03/23/18          Hale v. Holley Central School District

Appellate Divisions, Fourth Department

In the context of a sudden and spontaneous school fight case, the Appellate Division re-iterates that liability will not be imposed on a school district absent evidence of prior knowledge or notice of the same or similar conduct such that the school should have anticipated the offending conduct.

While this decision is a departure from my normal retail column, this is a case I handled and therefore I am well versed in both the facts and outcome on appeal.  Hale involved a high school gym class that was made up of male students of different grades and ages.  The incident at issue occurred at the beginning of the period.  The practice was for the boys to change in the locker room and then congregating in the gym to wait for class to start.  During this time, the gym teacher would wait in his office, which was between the gymnasium and locker room making him accessible to all.  While the plaintiff and some of his classmates waited in the gym, he was suddenly attacked by another student who placed him in a choke hold causing him to pass out and fall to the ground.  The gym teacher did not witness this incident and was not in the gym when it happened.  Plaintiff’s theories of liability against the school district were as follows:  1) the gym teacher should have been present in the gym supervising the students; 2) the school should not have permitted students of different grades and ages to participate in the same class; 3) the student who attacked the plaintiff had a prior disciplinary record such that the school should have anticipated his attack of the plaintiff; and 4.) there was a prior chocking incident at the school one month before this incident such that the school had notice of the behavior.  In granting the school district’s motion, the Court made the following determinations:  there was no evidence of prior problems between these two students; there were no prior problems in this particular gym class involving violence, fighting or misbehaving; while the student who attacked the plaintiff had a prior disciplinary record, the majority of incidents involved being insubordinate in other classes and the last incident of violence occurred several years earlier making it too remote to charge the school district with notice. The Court further concluded that a single dissimilar choking incident (the incident from a month earlier involved consensual choking) was also insufficient to raise and issue of fact; that there was no correlation between the age and size differences of the boys to the incident and the teacher’s decision to wait in an area where he had access to both the locker room and gym was not improper or negligent.   Thus, the school district defendant met its initial burden on its motion by establishing that it did not have “sufficiently specific knowledge or notice of the dangerous conduct which caused injury.”


03/29/18          Watts v. Wal-Mart Stores East, LP

United States District Court, Southern District of New York

Summary judgment granted to retailer because the record lacked evidence establishing that the substance Plaintiff allegedly fell on was visible and apparent and present for a sufficient length of time for the retailer to discover it.

Plaintiff, a shopper at a local Wal-mart store claimed injuries due to slipping and falling on a pink or yellow liquid substance on the floor of the soda aisle.  Video footage shows the plaintiff falling.  Plaintiff did not notice the substance on the floor before she fell. She testified that after her fall she observed that the substance was wet, a little thick and sticky.  Plaintiff left the store without reporting her fall, but returned later that evening to report it.  On Wal-Mart’s motion for summary judgment, the question turned on whether the substance was visible and apparent such that Wal-Mart would have had an opportunity to discover and correct it.  The Court cited to the video which showed customers and employees walking through the aisle in question encountering no problems and seeming not to notice the condition, just as the plaintiff testified she did not notice the condition.  The Court granted Wal-Mart’s motion holding that the plaintiff has failed to present any evidence other than speculation whether the defect was visible and apparent.  The Court also ruled that plaintiff failed to submit any evidence establishing the length of time the condition was present.  Plaintiff argued that the fact the substance was sticky indicates it was present for a period of time.  The Court rejected this theory calling it pure speculation stating that the stickiness of a substance is insufficient to create an issue of fact regarding how long the substance was present for.


04/08/18          Connor v. Dolgencorp of New York, Inc. (Dollar Tree)

United States District Court, Western District of New York

Summary judgment granted to retailer before the close of discovery based on one hour of video footage before the Plaintiff’s accident establishing the store did not create the condition, did not have time to correct the condition and proved the existence of a storm in progress (wind and rain storm).  

Plaintiff entered the Geneva Dollar Tree store through sliding doors that led to an interior vestibule area, which contained another sliding door that led to the retail shopping area.  Dollar Tree submitted video footage from the date of accident that depicted a period of one hour prior to the plaintiff’s fall and that showed the doors operating properly, floor mats present and customers entering the vestibule without incident.  Approximately 50 seconds before the plaintiff entered the store, a sudden and severe rainstorm began.  Wind from the rainstorm caused the doors to open and allowed rain to enter the vestibule.  The wind was so strong it moved the location of one of the floor mats.  When the plaintiff entered the vestibule, she slipped but did not fall to the floor.  She recovered her balance and entered the store.  The Court granted the retailer’s motion for judgment largely due to the video footage which showed that the vestibule was clean and dry, and that the doors were operational, for at least one hour leading up to the Plaintiff’s arrival at the store.  The Court concluded, and the video made clear, the store did not create the wet condition, nor did the store have time to correct it.  The Court also ruled that the storm in progress doctrine applied due to the wind and rainstorm.  What’s interesting here is that the store moved for summary judgment before the close of discovery, which is permissible but can be risky.  However, in this case it turned out to the correct strategic decision based on the complete lack of any plausible theories of recovery against the store in light of the video evidence.  Had the store not maintained the amount of video footage it did, the result would likely have been different.


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

By: Todd C. Bushway [email protected]


By now, I am sure almost everyone residing in or near the northeastern United States has had their fill of conversations, statements, tirades and or rants about spring weather and whether the temperature will ever settle at a number consistently above 50°.  My issue isn’t so much the temperature but the color – for me spring has arrived when the grass, assorted ground cover and trees and shrubs finally begin to turn green – I can take the cold.  Environmental colors other than grey and brown are what I’m looking for.  My son Ethan’s crew team has been on the water for almost a month now.  I am sure that the team members are glad to be done with the daily scourge of an erg machine and actually row.  That said, photos of rowers skirting ice floes never seem to show up in any boathouse or crew program’s advertising materials.  His team makes a yearly spring break trek to Ithaca, New York for a week of 2-3 outings a day, rowing out of the Cornell University Boathouse – thanks to the Cornell program for use of the docks and a place to park the trailers.  Last year the boys rowed in temperatures that exceeded 70° on a couple of days.  I don’t think the temperature got above 42° this year.  On to their first regatta is this coming weekend at Dillon Lake in Ohio.


The other big activity this spring has been the winding down of my daughter Cecelia’s senior year of high school and the all-important (all consuming?) decision on where we will be dropping her and our money off next August.  The winner is Villanova.  An admitted student’s weekend is in the calendar for next weekend.  She is very excited, as is her maternal grandfather.  Cecelia is the first of his children or grandchildren to attend his alma mater, and while I am sure he loves the rest of the family, I think Cecelia may have made a significant move up the rankings.  My status remains listed in the family directory as chauffer of the grandchildren, although I am allowed into the kitchen when it’s really cold out.  Cecelia will actually be the 3rd generation at Villanova, following not just my wife’s father, but two uncles, an aunt and several of my wife’s cousins.  At this point, knowledge of that lineage does not appear to have made its way to the financial aid office.  And no, I cannot get you basketball tickets.


Musically speaking, attended a great show by Steve Earle last week.  Looking forward to shows by Eilen Jewell, Slaid Cleaves, Street Dogs and the Legendary Shack Shakers in the next couple of months.  For your listening pleasure, I’d suggest Sluff by Naked Giants (crunchy, noisy guitar rock), Don’t Talk About It by Ruby Boots (a nice mix of honky-tonk, twang, basic rock and attitude), Years by Sarah Shook and the Disarmers (see above – country twang + bar rock + attitude = great record), Furies by the Mind Spiders (8 furious alternative/punk tracks – short and sweet and perfect for when you find yourself by yourself) or Rockingham by BJ Barnhum (personal and often haunting story telling songs, delivered by a talented singer-songwriter best known for his work as the front man for the alt-country/Americana band American Aquarium).  If you think my musical taste has/lacks substance or quality, let me know.  I probably won’t be offended.  I’m always looking for new stuff to listen to, so suggestions are always appreciated. 


Case wise, it was a pretty quiet month on the topics I follow.  I’m not sure why.  I have highlighted two cases which serve at the very least as reminders of two areas of law that commonly those working on premises based claims.  Both arise from claims against governmental entities.  The first, Cruz v. Transdev Services, et al., takes a look at late notice of claim filings and the burden and sufficiency of proof, while the second, Agness v. State of New York addresses the difference between a municipal entity’s governmental and proprietary functions. 


Lastly, I spoke at a New York State Bar Association CLE last month dealing with liability claims arising from the ownership or operation of property.  My section dealt with three topics - Primary Assumption of Risk, New York General Obligations Law §9-103 (New York’s recreational use statute) and the validity of releases under General Obligations Law §5-326.  We love to visit clients and give presentations – if this, sound interesting, just let us know and we can set up a visit or even arrange for a webinar.  We are also more than happy to put together a program to suit your needs – just let us know.  This offer isn’t just shameless marketing – it gives us both a chance to meet you and keep current on the ever changing legal landscape.


04/11/18          Cruz v. Transdev Services, et al.

Appellate Division, Second Department

Late Notice of Claim – Petitioner’s failure to establish that the respondent County (1) had received timely, actual knowledge of the underlying event and (2) was not prejudiced by the delay in learning of the event.

As I am sure most of our readers are aware, in New York before a personal injury lawsuit (as well as other types of claims) can be filed against a public entity, the injured party must, pursuant to General Municipal Law §50-i, file a notice of claim within 90 days of the injury producing event.  If the deadline is not met, General Municipal Law §50-e permits an injured party to petition to file a late notice of claim.  When reviewing an application to file a late notice of claim, the court is to consider a number of relevant factors, including whether the public entity acquired actual knowledge of the essential facts of the underlying event within 90 days (or within a reasonable time thereafter) of the underlying event, whether the public entity would be substantially prejudiced by learning of the underlying event at a date beyond the 90 days and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim. 

This case does not break any new ground in the world of late notices of claim, I am including this case in this month’s column as a reminder of a key element in General Municipal Law §50-e application – that the person(s) making the application bears the burden, in the first instance, to show that those factors have been met or answered. This is not a circumstance where the Court simply reviews the materials before it and makes a determination.  Only after the petitioner  sufficiently addresses these factors, does the public entity have the burden of showing it had no actual knowledge of the essential or relevant facts, would be prejudiced, etc.

Petitioner Blanca Cruz sustained injuries when she fell, allegedly because the bus on which she was a passenger stopped unexpectedly.  Because the bus was owned by the County of Nassau, the timely filing of a notice of claim pursuant to General Municipal Law §50-i was a necessary first step.  In this case, the notice of claim was not filed within the statutorily required 90 days, necessitating an application to file a late notice of claim. That application was filed 11 months following the accident which led to Cruz’s alleged injuries.  Thanks to the wonders of the internet and electronic filing, I was able to review the application filed by Cruz seeking permission to file the late notice of claim.  The lower court’s decision and order denied the application on the grounds that Cruz failed (1) to offer a reasonable excuse for failing to timely file, (2) to show the respondents had actual knowledge of the relevant underlying facts and (3) to show that the respondents would not be substantially prejudiced by the late filing.  The lower court did not provide any analysis for its finding.

In finding that that Cruz had not met her burden of establishing that the county had knowledge of the essential facts underlying the claim, the court cited case law holding that neither actual knowledge of an event by law enforcement officers nor a police report prepared by officers employed by the municipal entity is not notice to the entity itself. A reason often given as the basis for this holding is that what is required is not simply that an event occurred, but rather knowledge or awareness of the facts or circumstances that underlie the claim – i.e. the alleged wrong doing or negligent conduct, dangerous condition or defect, etc.  As part of her application, Cruz’s attorney stated that the driver of the bus was/is a county employee who had “exclusive possession and control over the operation of the bus” and therefore, all essential facts of the accident where within the knowledge of the county. There is no dispute that the county both owned the bus and employed the driver. 

The court reference only to case law addressing whether an entity gains knowledge of a potential claim through a police report is worth noting - there is both First and Second Department case law (cited to by petitioner) holding a governmental entity gains timely knowledge of an incident when its employee witnessed or was a participant in the event, even if the employee did not file a report.  The court’s reasoning will remain unknown.  That said, the petitioner’s application contains only a general argument that the county’s ownership and control of the bus and employment of the driver gave notice – there is nothing specific about this accident and what the driver might know or whether there was any analysis of the accident or investigation or repair of the bus that would shed light on the cause of the accident.  

On the issue of prejudice, appellate court does not provide any factual analysis to support its finding that the petitioner had not its burden, citing only to case holding that a petitioner’s showing of prejudice need not be “extensive” but still must present “some evidence or plausible argument” to support finding the respondent would not suffer “substantial prejudice” were the claim allowed.  Cruz’s argument regarding the county’s employment of the bus driver and ownership of the bus gave it control over key elements and information about the claim and countered any claim of prejudice was also addressed to this factor.

Finally, as did the lower court, the court finds that Cruz did not provide a sufficient excuse for the late filing.  The application to file the late notice was filed by the second firm to represent Cruz.  Those papers below state that Cruz herself was unaware of the filing requirement and document that her prior counsel, although retained well within the 90 days following the accident, did not timely file a notice of claim, take an further steps to protect her claim and gave Cruz incorrect advice regarding what her rights were. 

03/16/18          Agness v. State of New York

Appellate Divisions, Fourth Department

New York State failure to take steps to protect park visitor from foreseeable harm fell within its duties as a property owners, as opposed to its governmental duties, and therefore claim brought by a park user bitten by a rabid fox while camping in the park.

Randy Agness was taking advantages of the majestic wilds found in the great state of New York by camping at the state owned Sampson State Park.  While camping at the park, he was bitten by a rabid fox.  The proof showed that the park administration was aware of the potentially rabid animal at the park in the hours before Agness was bitten.   The state moved for summary judgment arguing that it was immune from liability because it was engaged in a governmental function with regarding to Agness’ claims. 

A municipal entity is engaged in a “governmental function” when its actions are undertaken, under the entity’s general police powers, to protect or ensure the safety of the public.  A municipal entity is engaged in a proprietary role when its actions fall within the types of actions generally engaged in by private entities or actors.  Determining whether the claim arises from governmental or proprietary function is the necessary first step in a claim against a governmental entity since a municipal entity enjoys immunity for claims arising from governmental functions.  Proprietary functions are those that would be typically expected from a private landowner, operator of a business or facility, owner or operator of a motor vehicle or something similar.  Governmental entities enjoy immunity for governmental functions since those actions typically require discretionary judgment in the performance of those functions.

Agness claimed his injuries were the result of failures by the state as a property owner, i.e., the park’s “negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger.”  Agness made no claim that the park owed him a duty that it did not owe any other park user.  Case law holds that the operation of a park is not a governmental function.   By choosing to establish a park and open that property to the public, the governmental entity takes on the same obligations and duties of a private landowner who opens and invites members of the public onto its property – the park must be maintained in a reasonable safe condition and the owner must take steps to provide a reasonable degree of supervision and protection to those on the property.

In this case, the court upheld the Court of Claims finding that the plaintiff’s claims that the park did not take adequate steps to protect park users from the threat posed by the known presence of a potentially rabid animal, fell squarely within the parameters of proprietary function.  As the owner and operator of the park, the state had a duty to take reasonable steps to ensure the safety of persons on the property, the same duty any private property owner would owe under similar circumstances.  Just to fill in the analysis, immunity flowing from a governmental function can overcome by a plaintiff establishing the existence of a special duty in favor of the injured party and reliance by the injured party on that special duty.  A special duty involves a duty beyond that owed to the public at large and arises from one of three circumstances:

  1. The plaintiff belonged to a class for whose benefit a statute was enacted;
  2. The government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or
  3. The municipality took positive control of a known and dangerous safety condition.

See e.g.  Applewhite v. Accuhealth, Inc., 21 N.Y.3d  420 (2013).

If anyone would like more information on the question of governmental versus proprietary function in claims against a governmental entity, please do not hesitate to contact me.

*** Sampson State Park is located on the eastern shore of Seneca Lake, one of New York’s well known Finger Lakes.  The park occupies the site of the World War 2 era Sampson Naval Training Station, later known as the Sampson Air Force Base.  The base was named for United States Rear Admiral William T. Sampson, born in nearly Palmyra, New York.  Admiral Sampson graduated from the United States Naval Academy in 1857 and is known for his service during the Civil War and the naval engagements in and around Cuba during the Spanish-American War. 

During World War 2, over 411,000 naval recruits trained at the Sampson Naval Training Station. Following World War 2, the base was closed and the property turned over to the War Assets Administration, while the 1,500 bed base hospital was taken over to the State of New York.  During this time, the base was used as a site of Sampson College, part of the United States Defense Department’s Associated Colleges of Upper New York and used to accommodate World War 2 veterans taking advantage of the GI Bill.  In operation from October 1946 through June 1949, Sampson College had matriculated 7,500 students and awarded 950 2 year degrees.   After the academic use ended, 12 of the barracks were moved to nearby Hobart College and Syracuse University.  In 1949, the base was used the United States Department of Agriculture to store excess grains.  In 1950, following the outbreak of the Korean War, The property was transferred to the US Air Force for use as a training facility.  By the time the air force base was decommissioned in late 1956, several hundred thousand airmen and women had received training at Sampson.    The property was transferred to the State of New York in 1960. 

The state park spreads over 2000 acres and includes a marina, picnic shelters and over 300 camp sites.  Most of the building and other structures from the property’s use as a naval and aviation base, including the runways, are long gone, although a remaining building does house a museum documenting the lives of the United States Naval and Air Force personnel who trained at the base is housed in one of the few remaining buildings.

The former Seneca Army Depot, a munitions storage site located adjacent to the air base, was decommissioned in 2000 and that property transferred to Seneca County for use as a business development location.

Toxic Exposures

By: V. Christopher Potenza [email protected]


There are a few items of interest this month, most notably an important Court of Appeals insurance decision on long-tail coverage that should be of interest to our toxic tort audience.  Since I am barely capable of applying for insurance, let alone writing about it, I am re-posting Dan Kohane’s summary from our “Coverage Pointers” publication.  If you have any questions on this decision, call or email Dan (tell him Vito sent you) at: [email protected]

For those with asbestos cases in New York City Asbestos Litigation (NYCAL), the First Department affirmed controversial amendments to the Case Management Order that governs the NYCAL docket.

Lastly, in a silica exposure claim, the Fourth Department not only rejected the “sophisticated-intermediary” defense, but further holds that this defense is not a complete defense by a product manufacturer. In other words, evidence that an injured worker's employer was adequately warned, or was otherwise knowledgeable about the dangers of the product and may have been in the best position to give the warning at issue, does not bar a claim against the manufacturer.   Rather, this evidence should go to the jury in deciding whether a manufacturer satisfied its duty to provide adequate warnings for its product.


Finally, and without further ado, this month’s dad joke:

Why do Pilgrims love April…. because it brings May-Flowers.


03/18/18          Keyspan Gas East Corp. v. Munich Reinsurance America, Inc.

New York State Court of Appeals

Long Tail Coverage – Under Pro Rata, Time-on the Risk Method of Allocation, an Insurer is Not Liable for Years Outside of its Policy Period Where there was Not Applicable Insurance Coverage on the Market

The question before New York’s highest court is whether, under the "pro rata time-on-the-risk" method of allocation, an insurer is liable to its insured for years outside of its policy periods when there was no applicable insurance coverage on the market. The Court holds “no” – the insured in liable for years where the coverage was not available.


For the reasons explained herein, we hold that KeySpan, not Century, bears the risk for those years during which such coverage was unavailable. We, therefore, affirm the order of the Appellate Division.


This was an environmental claim arising out of gas plants owned and operated by KeySpan’s predecessor, Long Island Lighting Company (“LILCO”).  Gas production at the sites began in the late 1880s and early 1900s. After operations ceased, and decades later, the New York Department of Environmental Conservation (“DEC”) determined that there had been long-term, gradual environmental damage at both sites due to contaminants, such as tar, seeping into the ground and leeching into groundwater. The DEC required KeySpan to undertake costly remediation efforts.


Between 1953 and 1969, Century issued eight excess liability insurance policies to LILCO covering property damage. The environmental contamination at the sites occurred gradually and continuously before, during, and after the Century policy periods. It was also uncontroverted that the environmental contamination that occurred in any given year was unidentifiable and indivisible from the total resulting damages.


KeySpan did not dispute that pro rata time-on-the-risk allocation controlled under the relevant policies, but argued that Century's pro rata share should not be reduced by factoring in the years in which pollution property damage liability insurance was unavailable.  According to KeySpan, Century's expert had opined that such coverage was not available to utilities until approximately 1925, and that a "sudden and accidental pollution exclusion" was later generally adopted by the insurance industry sometime in or after October 1970.  Thus, KeySpan argued the allocation should not take into account any years prior to the availability, or after the unavailability, of the applicable coverage.


In general, two primary methods of allocation are used by the courts to apportion liability across multiple policy periods: all sums and proration.  All sums allocation "permits the insured to collect its total liability under any policy in effect during the periods that the damage occurred, up to the policy limits" (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 222 [2002]) [“ConEd” ].  By contrast, under pro rata allocation, assuming complete coverage, "an insurer's liability is limited to sums incurred by the insured during the policy period; in other words, each insurance policy is allocated a pro rata' share of the total loss representing the portion of the loss that occurred during the policy period" (Matter of Viking Pump, 27 NY3d at 256) [“Viking Pump”].  Pro rata shares are often, although not exclusively, calculated based on an insurer's "time on the risk," a fractional amount corresponding to the duration of the coverage provided by each insurer in relation to the total loss.


In New York, the courts have not adopted a strict pro rata or all sums allocation rule. Rather, the method of allocation is governed foremost by the particular language of the relevant insurance policy. In the ConEd case, that policy language restricted an insurer's liability to all sums incurred and occurrences happening "during the policy period" which the court held generally supports a pro rata allocation.  As we explained, the policies at issue there contained such language providing "for liability incurred as a result of an accident or occurrence during the policy period, not outside that period," and we concluded that "[p]roration of liability acknowledges the fact that there is uncertainty as to what actually transpired during any particular policy period".


We subsequently distinguished the policy language in ConEd from that presented in Viking Pump.  In Viking Pump, the presence of noncumulation and prior insurance provisions "plainly contemplate that multiple successive insurance policies can indemnify the insured for the same loss or occurrence" and, therefore, require all sums allocation.  Such provisions are inconsistent with pro rata allocation because "the very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period," such that no two insurance policies indemnify the same loss or occurrence absent overlapping or concurrent policy periods


KeySpan does not dispute that it bears the risk for those years in which property damage insurance was available to, but not purchased by, LILCO and it was, therefore, voluntarily self-insured.  KeySpan argues, however, that it should be responsible only for those years in which insurance was available in the marketplace.


The unavailability rule is inconsistent with the contract language that provides the foundation for the pro rata approach — namely, the "during the policy period" limitation — and that to allocate risk to the insurer for years outside the policy period would be to ignore the very premise underlying pro rata allocation.  Such an approach could, once a policy is triggered, impose liability in perpetuity (or retroactively to periods prior to coverage) on an insurer who issued insurance coverage for only a limited number of years, thereby eviscerating much of the distinction between pro rata and all sums allocation.


In the context of continuous harms, where the contamination attributable to each policy period cannot be proven and we draw from the contract language to distribute the harm pro rata across the policy periods, it would be incongruous to include harm attributable to years of non-coverage within the policy periods.


The very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period. The Court rejects application of the unavailability rule for time-on-the-risk pro rata allocation.


03/22/18          In Re New York City Asbestos Litigation

Appellate Division, First Department

First Department upholds new Case Management Order addressing bankruptcy trust filings, an accelerated docket, and procedures for punitive damages claims.

The CMO, which retains many procedural provisions long included in the preceding NYCAL CMOs, modified the then existing CMO by adding, among other things, provisions addressing the filing of asbestos claims with bankruptcy trusts, creating an “Accelerated Docket,” and governing the filing of claims for punitive damages. Section XXVI, which sets deadlines for the submission of asbestos claims to bankruptcy trusts, contains new language requiring plaintiffs who intend to file claims with bankruptcy trusts to report to the court and defense counsel any post-deadline claims and to confer with the court before filing such claims.  Sections XIV and XV create rules for an “Accelerated Docket” in place of the prior rules for the “In Extremis Docket.” Section XXIV and other provisions create rules for discovery and notice in connection with punitive damages claims so as to protect defendants' due process rights.


The First Department held that these provisions do not deprive defendants of their due process or other constitutional rights, even where they do not strictly conform to the CPLR, and that therefore the Coordinating Justice had the authority to issue these provisions absent defendants' consent.


03/16/18          Rickicki v. Borden Chemical, Division of Borden, Inc.

Appellate Division, Fourth Department

Sophisticated-intermediary defense rejected in silica exposure claim.

Plaintiffs commenced an action against various silica manufacturers seeking damages for injuries allegedly sustained as a result of their occupational exposure to silica dust.  On a prior appeal, the Fourth Department held that the theory underlying the motions, which has been termed the “sophisticated intermediary” or “responsible intermediary” theory was viable in New York under the facts of this case. Nevertheless, the Court concluded that issues of fact existed with respect to whether plaintiffs’ employer was knowledgeable about the differences between amorphous silica and crystalline silica, the effect that those two categories of silica have on lung health, and the additional measures needed to prevent inhalation of crystalline silica.  The Fourth Department has now resolved the issue left open on the prior appeal by declining to recognize the sophisticated intermediary doctrine under the facts of this case. In other words, contrary to the court's previous conclusion, it is not a complete defense to a failure to warn claim against a product manufacturer under New York law that an injured worker's employer was adequately warned or otherwise knowledgeable of the dangers of the product, or that the employer may have been in the best position to give the warning at issue. Instead, evidence that an employer had knowledge of a hazard or was better able than the manufacturer to provide a warning to the injured worker is relevant to whether a manufacturer satisfied its duty to provide adequate warnings, which is typically a question of fact.





Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]

Dear Readers:


This week I am heading out to my father’s farm to help clean up equipment following a successful maple syrup season. It was a rather long sugaring season on account of the drawn out “almost spring but not really” weather.  I have fond memories of boiling syrup with my dad and being delighted that my dad would let me drink a whole coffee mug full of warm syrup (before dinner no less). In this edition of Premises Pointers we are covering a few cases involving Landlords/property owners and their duties to maintain the premises.


I hope everyone has a wonderful week!




02/27/18          Santana v Kardash Reality Corp

Appellate Division, First Department

Landlords May Be Liable For Personal Injuries If It Has A Contractual Duty To Maintain The Property.

Tenant filed personal injury suit against landlord, seeking to recover for injuries that tenant sustained to her neck and right shoulder allegedly as result of fallen kitchen cupboards.


The takeaway from this case is that A landlord may be held liable for injury caused by a defective condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair and reserves the right to enter for inspection and repair.


Here, the lease required defendant to make repairs to defects following notice from plaintiff. Here, plaintiff did not provide written notice of her defective cabinet.  However, she personally informed the superintendent three months before the cabinet fell from the wall injuring her, and he attempted to fix it. This supports a conclusion that defendant received actual notice of the defective condition. Defendant offered no evidence as to what caused the cabinet to fall. While the superintendent denies ever repairing or attempting to repair plaintiff's cabinet, or receiving a complaint about the cabinet from plaintiff, this discrepancy simply raises an issue of fact. The superintendent's assertion that the cabinet fell due to the excessive weight of the contents placed inside of it by plaintiff was unsupported and was mere speculation.


10/26/17          Kraft v Loso

Appellate Division, Third Department

The Court Cannot Asses Credibility Of Facts On Summary Judgment, Unless It Is Clear They Are Feigned.

Defendants, a brother and sister, were the owners of a two-family residential dwelling. Plaintiffs' son began renting one of the apartments, which was accessed by a set of exterior concrete stairs with a handrail fastened to two wooden posts set into the ground.

Plaintiff asserts that, while descending the stairway in question, her foot slipped on one of the stairs and, when she reached for the handrail in an effort to steady herself, the handrail moved causing her to lose her balance and fall to the ground.. Defendants argued that they could not be held liable for any dangerous condition existing on the property because they were out-of-possession owners. Supreme Court granted the motion and dismissed the complaint.

To establish entitlement to summary judgment, defendants were required to demonstrate that they "maintained the premises in a reasonably safe condition and neither created nor had actual or constructive notice of the allegedly dangerous condition.” To that end, Defendants stated that they periodically inspected the stability of the handrail and always found it to be secure, and that there were no complaints. Defendants relied on their other tenant who stated that he and his "overweight" father regularly used the handrail in question while traversing the exterior stairs and that it was "very sturdy.” In addition, defendants relied on the sworn affidavit of a professional engineer who personally inspected the property, concluded that the stairs and handrail in question were in full compliance with the applicable codes and were safe.

In opposition, plaintiffs Plaintiffs' son testified that Defendants knew the handrail was lose and that the handrail oftentimes "moved and threw [him] off balance" every time he would grab it.

The Court noted "a court may not assess credibility on a summary judgment motion 'unless it clearly appears that the issues are not genuine, but feigned'”  As such the Court determined that there were questions of fact concerning the maintained of the handrail and Summary Judgment should not have been granted.

Further, factual issues exist as to whether the alleged instability of the handrail caused or contributed to the accident. "Even if [Kraft's] fall was precipitated by a misstep, given her testimony that she reached out [for the handrail] to try to stop her fall, there is an issue of fact as to whether the [the instability] of [the] handrail was a proximate cause of her injury"

Notably, the Court did not apply this holding to the sister Defendant as she had given up all rights to property and was not even on the lease.

15/12/17          Vasquez v Nealco Towers LLC

Appellate Division, First Department

The Plaintiff’s Testimony That She Did Not Notice The Defect 20 Minutes Before Her Fall Evidenced That The Condition Was Not Visible, Therefore Defendants Could Not Have Constructive Notice Of Same.

Defendant was entitled to Summary Judgment because it produced evidence establishing that it neither created the condition of the step on which plaintiff fell, nor had actual or constructive notice of it.


The building superintendent and the property manager's affidavit established that there were no prior complaints or incidents involving the same step.  Additionally plaintiff's testimony demonstrated that she did not see the defect as she walked up the stairs approximately 20 minutes prior to the incident.  Her testimony indicates that the alleged defective condition was not visible and apparent so as to constitute constructive notice.


In opposition, plaintiff failed to raise a triable issue of fact. The evidence failed to show a specific recurring condition that was routinely left unremedied by defendant, as a opposed to a general awareness of such a condition, for which defendant would not be liable.  Moreover, Plaintiff's argument that inadequate lighting in the staircase was a proximate cause of her fall was unsupported by her testimony because she said she slipped because of the defect on the stairs, not because of inadequate lighting.


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

By: Anastasia M. McCarthy [email protected]


Dear Readers,


As I write this column, Buffalo is facing yet another Winter Storm Advisory.  Even though it is April; even though I can see green grass outside my window; even though I put my jacket away for an entire 48 hours, this week’s weather news no longer surprises me.  In an effort to truly embrace this lingering winter weather, this week’s cases all deal with snow, ice, and summary judgment.


03/14/18          Bader v. River Edge Hastings Owners Corp.

Appellate Division, Second Department

Defendants are awarded summary judgment and the Second Department reiterates that a Defendant’s prima facie burden on summary judgment relates only to the theories of negligence set forth in the pleadings.

Defendants’ owned a cooperative apartment complex where plaintiff was a tenant.  In her civil suit, plaintiff alleged that she tripped and fell on black ice in the apartment complex’s parking lot.  Specifically, the incident was alleged to have occurred in a sloped area near a drain.  Notably, an inch of snow had fallen three days before the incident at-issue, but, during her deposition, plaintiff testified that she did not see any snow or ice before falling. 


In support of their motion for summary judgment, defendants submitted several Affidavits and deposition transcripts, including:

  • the Affidavit of a professional engineer who supervised a micro-topopgraphical survey of the subject-parking lot. The engineer determined that the gradient of the parking lot, including the area where the fall occurred, was within acceptable professional standards and that there was no “lip” present that would have caused the pooling (and icing) of water. 
  • The Affidavit of an employee charged with the daily operation of the property, who stated that, in his 38 years of employment at the property, he never observed any water pooling in the parking lot.  
  • Plaintiff’s deposition transcript, containing testimony admitting that she frequently traversed the parking lot and had never noticed ice accumulation in the area where she fell nor had she ever made a complaint about ice pooling close to the drain. 
  • Deposition testimony from two non-party witnesses, one a current resident and the other a former resident of the complex.  One of the witnesses testified that he had walked through the area of the fall 30 minutes before the incident and did not observe any ice.  The other witness, however, testified that she had observed pooling in the bottom of the slope on three or four occasions and that she had fallen somewhere in the parking lot 15 years earlier but did not report the incident; she admitted, however, that she had not been on the property on the date of loss.


The Court held that the evidence submitted in support of the motion established that defendants did not create the alleged black ice nor have actual or constructive notice of it.  The Court found the employee’s Affidavit particularly persuasive since he worked on the premises for 38 years without ever observing any water pooling in the subject-parking lot, thus establishing the fact that the pooling of water was not a recurring problem in the lot.


Notably, one of the Second Department’s Justices wrote a dissent stating that the defendants’ motion must fail because defendants did not address the issue of a recurring condition.  The majority, however, stated that the dissent was “unavailing” for three reasons—(1) Plaintiff did not allege, through her pleadings, the existence of a recurring condition at the situs of her fall.  In making a motion for summary judgment, defendants are only obligated to address the allegations of liability that plaintiff sets forth in her pleadings.  As such, the instant defendants were not obligated to address the existence of a recurring condition. (2) The Affidavit of Defendant’s employee does establish “a long-term lack of knowledge” of any prior pooling of water or repeat icy conditions in the parking lot.  This Affidavit established, prima facie, that defendants “lacked notice of any prior dangerous condition, recurring or otherwise.”  The evidence set forth by plaintiff  “[a]t best…demonstrated that the defendants had merely a general awareness that, at times, an icy condition developed at unspecified locations in the parking lot during winter months.  However, such general awareness was insufficient to constitute notice of the specific icy condition at the specific location that allegedly caused the plaintiff to fall.” (3) Finally, plaintiff did not raise a triable issue of fact as to any negligent design of the parking lot or its drainage system.


03/28/18          Zempoalteca v. Ginsberg, et al.

Appellate Division, Second Department

Evidence of conflicting testimony related to the weather at time of loss and climatological data for nearby areas was insufficient to satisfy defendants’ burden on summary judgment.

Plaintiff sustained personal injuries after slipping and falling on sidewalk abutting defendants’ property.  Defendants moved for summary judgment, arguing that a storm had been in progress at the time of loss.  The Court denied defendants’ motion, finding that the deposition testimony regarding the weather at the time of loss was conflicting and climatological data for nearby areas was inadequate to establish that a storm was ongoing at the time of loss.


04/12/18          Hurley v. City of Glens Falls, et al.

Appellate Division, Third Department

The third department affirms trial court’s denial of defendants’ motion for summary judgment because defendants failed to meet their initial moving burden to eliminate all triable issues of fact on the issue of constructive notice. 

Plaintiff and her husband brought suit after plaintiff slipped and fell on a snow-covered sidewalk near the parking lot of the Glens Falls Civic Center.  Defendants set forth proof that the area where plaintiff fell was a restricted area and moved for summary judgment.


In moving for judgment as a matter of law, defendants relied on photographs of the area as well the testimony of defendants’ operations manager and plaintiff.   Plaintiff testified that she was walking on the sidewalk in question when her foot slipped out from beneath her.  As she attempted to stand up, she slipped again and struck the ground.  She stated that the area was covered in snow and that “there had to be a thin layer of ice underneath the snow.”  Defendants’ operations manager, however, admitted that there was snow on the property on the date of loss; that he could not remember removing any snow from the area; that he failed to inspect the area to ensure that snow and ice had been removed; and that the company had no rules or guidelines that would have required him to inspect the area.  The operations manager went on to admit that he had no snow logs that would otherwise establish if, and when, snow had been removed from the area where plaintiff fell.


In moving for summary judgment, defendants’ initial burden required them to establish that they maintained the property in a reasonably safe condition; that defendants did not create the alleged dangerous condition; and that defendants lacked actual and constructive notice of the dangerous condition.  In reviewing the evidence set forth by defendants, the Court determined that defendants failed to eliminate all triable issues of fact on the issue of constructive notice since the photographs and testimony produced did not establish when defendants last cleaned or inspected the area at issue.  Moreover, the Court held that, even if plaintiff did slip and fall in a restricted area, the record established that defendants were aware the people walked through the restricted area and that there were no signs prohibiting people from doing so.


Notably, a news story published in The Post Star, pointed to additional evidence relied upon by defendants that was not discussed by the Court, including the fact that there was a clear path to be utilized and that the icy snow alleged to have caused the fall had been salted (as shown in the photographs to be used).


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


Babies certainly take over your life! My wife and I are thoroughly enjoying being parents to our first child. We are still working to try to put her on a schedule for sleeping, but this may be a fool’s errand only 6 weeks in! Meghan is a healthy baby and we are certainly thankful for this good fortune. Thank you also to all the folks who reached out to say congratulations over the last few weeks the generosity of our friends, family and community members has been incredibly appreciated!

We are thoroughly into the dreaded “Shoulder season” in the Tri-Lakes area. This is, without a doubt, the slowest time of the year in Lake Placid. No springtime here; we go from winter to mud to summer!  Shoulder season is the time of year that the town grows very quiet from the tourist flow and many people take off for warmer climates. On the plus side, it presents a nice opportunity to buckle down and get some work done.

I am writing from a general litigation focus this month, as opposed to my normal elevator and escalator column. That is because the Court of Appeals just issued a 4-3 noteworthy decision regarding comparative fault when the plaintiff brings a motion for partial summary judgment on liability. The impact of this for the defense bar is potentially enormous and we will review the decision and some of the potential changes it will cause to occur.

04/03/18          Rodriguez v. City of New York

New York State Court of Appeals

Plaintiff is not required to establish the absence of their own comparative negligence to triumph on a motion for partial summary judgment on liability.

This is Decision from the Court of Appeals that will potentially have far-reaching effects with how attorneys litigate personal injury cases going forward. 

The facts of this case are largely undisputed:  Plaintiff, a New York City Department of Sanitation employee, was working to attach snowplows and chains to the tires of trucks.  Typically, in teams of three, the driver would back up the truck with a guide positioned on the passenger side of the truck, with the third team member placing the chains on the truck with the help of the driver and guide once the truck was parked (the third member of the team was the plaintiff).  Plaintiff was standing between a parked Toyota Prius and some tires while the guide stood on the driver’s side of the truck and helped back the truck in.  The truck started skidding, crashed into the Prius and pinned plaintiff between the Prius and tires, causing him to suffer serious personal injuries.

Plaintiff brought an action against the City of New York and then moved for partial summary judgment on liability.  The Supreme Court denied his motion, indicating that there were triable issues of fact regarding foreseeability, causation and plaintiff’s comparative negligence.  The Appellate Division held that plaintiff was not entitled to partial summary judgment on liability because the plaintiff had not made a prima facie showing that he was without comparative fault.  A dissent held that plaintiff was not required to make a showing that he was free from comparative fault, as this was not his burden.  Permission was granted to the plaintiff to appeal to the Court of Appeals with a certified question as to this issue.

Before we explore the Court of Appeals’ Decision and the dissent, please allow me to take the opportunity to explain how, at trial, liability issues would be handled.  A jury, having heard the case at trial, would receive what is known as a verdict sheet, which is a series of questions that the attorneys representing the plaintiffs and defendants have either agreed on or convinced the Court are the correct questions to ask.  The questions in a negligence-based personal injury action will generally ask if the defendant was negligent.  If the jury finds that the defendant was negligent, the jury will be asked to determine if the defendant’s negligence was a substantial factor in causing the injuries to the plaintiff.

In many cases, plaintiff may have taken some actions which contributed to their injuries.  For example, think of a plaintiff who is injured in a slip and fall accident where the plaintiff alleges s/he fell because of snow and ice.  Or think of a motor vehicle accident where the plaintiff is injured because a defendant ran a stop sign, but plaintiff had faulty brakes on plaintiff’s car and evidence is presented that s/he could have prevented the accident if the brakes worked properly.  In cases where appropriate, if the jury finds that plaintiff’s own conduct was negligent and played a role in causing plaintiff’s injuries, the jury will be asked to attribute 100% of the fault between the plaintiffs and defendants in any way it believes accurately represents the fault for the accident.  These percentages, if not 100% on the defendants, are used to reduce the money damages to the plaintiff in a successful action.

In Rodriguez, the Court of Appeals framed whether a plaintiff on a motion for partial summary judgment on liability as a statutory question.  While noting that it was the plaintiff’s duty to establish that there is no defense to the cause of action under CPLR 3212, the Court noted that CPLR 1411 specifically stated that plaintiff’s culpable conduct would not bar recovery, but would diminish the amount of damages proportionally that the plaintiff would recover.  The Court found that this would inappropriately place the burden on the plaintiff with proving the absence of culpable conduct in a personal injury action on a partial motion for summary judgment on liability.  The Court would advise a jury that the question of defendant’s negligence had already been judicially determined and the jury would be just asked to determine if plaintiff’s own culpable conduct, if any, would cause the amount of recovery to be diminished. 

The dissent, written by Judge Garcia, is a full-throated rejection of the majority’s decision, highlighting many real litigation world consequences of the majority’s Decision.  First, the dissent makes the not-insignificant point that the Appellate Division stated "[u]nder this factual scenario, the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries" (emphasis as provided in the dissent).  The Appellate Division stated that it believed that here, a jury could find the defendant was not negligent in the least, but now would be required to find the defendant was at least partially negligent for the injuries caused.

The dissent also noted that the majority was reversing the precedent that virtually all Appellate Divisions had been following for years, save for a minority of Judges from the First Department.  The Legislature, though aware of how the rule had been applied over the years, has declined to change the law to what the majority has now molded.  Though a bill had been advanced previously, it has not been passed – the minority asks why it would have been necessary at all if this is what the Legislature had intended?

Judge Garcia also noted that any benefits of judicial economy would be illusory in nature; despite the fact that a plaintiff’s successful motion for partial summary judgment would eliminate the questions of defendants’ negligence, the very fact that plaintiff’s culpable conduct would need to be evaluated by a jury would require a full recitation of the facts of the case for the jury, deriving no time-saving benefits for the Court.  Further, the risk of the Court getting it “wrong” – a judicial determination that the defendant was negligent when the jury did not agree – made this approach unfair to defendants.  Lastly, the minority interpreted Article 14-A differently, rejecting the majority’s view that the existing statutes required the majority’s interpretation to be followed.

Maybe I am biased with a career spent primarily defending personal injury cases, but the dissent makes strong points – there will be no time savings at trial if there is a hint of culpable conduct on the part of the plaintiff and the entire case will have to be presented for jury evaluation.  Additionally, what if a jury finds that despite the judiciary’s determination that the defendant is liable, it does not believe that the defendant is liable for the plaintiff’s injuries?  Will the Court require 1% as a minimum threshold basis on the defendant who had a motion for partial summary judgment on liability ruled against her? 

In effect, this Decision, in a number of cases, may shift the job of finding whether a defendant was negligent and a substantial factor in causing the plaintiff’s injuries from the jury to the Judge. 

It seems a likely proposition that in the immediate aftermath of this Decision, there will be more plaintiffs’ attorneys moving for summary judgment.  The Court of Appeals has given them a significant inducement to do so and with little but time to lose, moving for partial summary judgment regardless of what your plaintiff-client did would seem to be a strong litigation tactic currently.  If partial summary judgment on liability is granted, it may lead to more settlements of questionable cases where the plaintiff helped cause his own injuries. 

For now, we wait to see the impact on cases in Court and whether the Legislature believes this ruling requires a legislative fix.

New York Discovery Angles

By: Marc A. Schulz [email protected]


Greeting Subscribers!


As baseball is underway, playoff basketball is happening, the Masters recently concluded, and the NFL draft is almost here, as a sports fan it is one of my favorite times of the year. This month’s case reminds all practitioners about the usefulness of the attorney work product doctrine and materials prepared in anticipation of litigation for preventing disclosure of certain documents. Feel free to send me an email should you wish to discuss your latest discovery dilemma or your predications for the draft and whether the Bills will move up for their franchise quarterback or when you believe spring will finally hit Buffalo.




04/05/2018      Peerenboom v Marvel Entertainment, LLC

Appellate Division, First Department

Documents Constituting Attorney Work Product and/or Material Prepared in Anticipated of Litigation Are Exempt from Disclosure.

The trial court denied nonparty Perlmutter’s motion for a protective order prohibiting Marvel from disclosing documents submitted to the court for an in-camera review on the grounds that such documents were exempt from disclosure under the attorney work product doctrine and/or materials prepared in anticipation of litigation.


The First Department reversed as Perlmutter established that some of the disputed documents contain draft pleadings or emails discussing revisions, which constitute material shielded by the attorney work product doctrine. Documents regarding discussions between counsel about the pending action between petitioner and Perlmutter constituted attorney work product because they reflect “an attorney’s legal research, analysis, conclusions, legal theory or strategy”. Documents about an investigation by Kroll on behalf of Perlmutter were also held to be entitled to qualified protection under CPLR § 3101(d)(2) as materials prepared in anticipation of litigation.

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