Premises Pointers - Volume I, No. 3

Premises Pointers
Watch your step!


Volume I, No. 3

Tuesday, August 15, 2017

A Monthly Electronic Newsletter


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


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

Jody E. Briandi
[email protected]



Todd C. Bushway

[email protected]




V. Christopher Potenza

[email protected]


Tessa R. Scott

[email protected]


Anastasia M. Stumpf

[email protected]


James L. Maswick

[email protected]





Retail, Restaurant and Hospitality Industry

Slip and Fall Accidents

Snow/Ice Claims and Storm in Progress

Inadequate/Negligent Security

Inadequate Maintenance

Negligent Repair

Defective and Dangerous Conditions

Elevator and Escalator Accidents

Swimming Pool and Recreational Accidents

Dog Bites/Animal Liability

Negligent Supervision

Assumption of Risk

Limited Services Contracts

Indemnification Agreements

Tavern Owner Liability and Dram Shop

Homeowner Liability

Toxic Exposures




Happy August!  Hard to believe that Labor Day is around the corner, but summer isn’t over yet so let’s keep enjoying the sunshine, warm weather and long days.  I again want to thank everyone for your interest in Hurwitz & Fine’s latest newsletter.  The feedback we’ve received has been terrific!  Please feel free to contact anyone on the Premises Pointers team with your notes, comments and questions.  We love hearing from you.


I am pleased to welcome this month two Hurwitz & Fine guest contributors.  First, we have Eric Andrew, an associate attorney at our office who focuses his practice in the areas of New York State labor law, toxic tort and as you will read, premises liability.  Eric will be reporting on a recent H&F summary judgment victory obtained in Monroe County Supreme Court involving an indoor trampoline facility (I know…what could go wrong there?).  Our other guest contributor is attorney Tasha Dandridge-Richburg.  Tasha, who practices in the areas of transportation negligence, product liability and toxic tort, will be stepping in this month for Chris Potenza, who is just finishing up a lead paint trial in Albany, NY.  Chris will provide all of us with a trial report in our September edition of Premises Pointers.


Since our last issue, I spent a week on the beautiful beaches of Jamaica where the water was nothing short of spectacular (take a peek below).  However, as with my last trip, I was struck by all of the potential liability issues faced by hotels and resorts on the island. Let’s take security.  Since hotels have a duty to protect guests against third-party criminal acts, their beachfront locations certainly add to the challenges of providing adequate security due to easy beach and boat access.  Case in point, on my first day I ventured out early to walk the beach only to be met by local “salespeople” who came by boat to sell their goods.  While they were nothing but friendly, it is easy to envision a scenario where beach access could present problems for hotels and resorts.  Liability issues aside…it really is beautiful!

Description: IMG_1757



Please feel free to share this newsletter with friends and colleagues who would find it useful. We would love to add new subscribers!  If you are interested in being added to our subscription list, just send me an e-mail at [email protected].  We are also available to provide training to any and all that may want some, on any premises liability topic, in person or as a webinar. Please call or email if this is of interest to you and your team.


Thank you!



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

H&F Summary Judgment Victory - Assumption of  Risks Inherent in Activities at Sporting Venues

By: Eric D. Andrew [email protected]


Many of my cases dealing with premises liability occur in the Labor Law sphere (for a continuing account of the Labor Law Department’s ongoing reporting and analysis of Labor Law decisions, please see our sister publication, Labor Law Pointers which is published the first Wednesday of every month.)  Occasionally we get the opportunity to practice outside the Labor Law.  Recently, we had the pleasure of securing summary judgment for our client, a trampoline activity venue, dismissing Plaintiff’s claims that the venue did not adequately warn him of the risks of participating in the activity, and that they did not adequately attend to him after his injury.  As you will see, while the case was decided on the briefs of the issues, it was won months ago in depositions and the preservation of evidence.

The facts are fairly straightforward.  The plaintiff arrived at the venue after his family had already checked in.   He was able to then circumvent the check-in procedure and “rules speech” which included reading and acknowledging the various warnings concerning the risks associated with jumping on the trampolines, and the admonishment to only perform tricks within his ability.  Because there would be no case without an injury, the inevitable happened.   Plaintiff attempted to perform a back flip and landed on his neck, suffering a fractured cervical vertebra.  He immediately left the premises and drove to the hospital to be checked out.  It was at this time the plaintiff notified the venue that he had not been required to read and sign the activity waiver and acknowledgement nor been given the warning about performing backflips.  He also claimed that he had not been properly attended to by the staff after his injury. 

In responding to the claims by Plaintiff, the venue preserved all video evidence of Plaintiff’s activities in the venue, including the attempted flip from multiple angles and his rapid exit after the incident.  The footage showed the Plaintiff entering the trampoline floor and attempting, and failing to perform many front flips.  It then shows him attempting the backflip and landing on his neck, head between his knees.   Importantly, it refuted plaintiff’s assertion that he landed on the firm partition between trampoline sections instead of simply landing wrong on the trampoline surface.  The footage clearly showed that only plaintiff’s toes touched the border padding while his head and neck were completely on the trampoline surface.  It also showed that plaintiff immediately stood and rapidly walked off the trampoline surface, brushing aside offers of aid from staff who responded within seconds of his fall.  He exited the venue within moments of the incident. 

At his deposition, Plaintiff not only admitted that he used to own a backyard trampoline, but that he put restrictions on what others could do on it due to the dangers of trampolines in general and flips specifically.  He specifically prohibited others from doing backflips because of the danger of landing wrong on their neck and injuring themselves.   He testified not only to risks to jumping on a trampoline, but the risks specifically associated with backflips which were the very outcomes and injuries he experienced from attempting his back flip.   Plaintiff testified that he was fully aware of the dangers that the activity entailed and that there was nothing in the warning and waiver that would have exposed him to new information that he did not already have about jumping on a trampoline and the risks involved.  Plaintiff also acknowledged that there was no claim of defect with respect to the trampoline either in supervision, maintenance, or design.  His only claim was a failure to warn.

With primary assumption of the risk, the plaintiff’s knowledge and appreciation of the risks involved work to not limit the liability of the defendant but actually negate its duty to warn the plaintiff of any risks or hazards involved in the activity.   If the plaintiff has an appreciation of the dangers involved and the possible detrimental outcomes, there is nothing left for the defendant to warn him about.  Under the doctrine of assumption of the risk, an owner or operator bears no liability for the inherent risks of engaging in a sporting or recreational activity when: (1) a consenting participant is aware of the risks; (2) has an appreciation of the nature of the risks; (3) and, voluntarily assumes the risks. Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 431 (1997).  If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be. Latimer v City of New York, 118 A.D.3d at 421, 987 N.Y.S.2d at 59

Plaintiff’s response was to argue that the defendant violated its own rules by not making the plaintiff read and sign the waiver and listen to the “rules speech”.  This argument failed on two counts.  First, a company’s violation of its own internal rules, without more, is not negligence, and “where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence,” Byrd v. Walmart, Inc., 8 N.Y.S.3d 428, 430, 128 A.D.3d 629, 630–31 (2d Dept. 2015).   Second, because plaintiff acknowledged that he was fully aware of the risks that he would have been advised of in the waiver and “rules speech” and that they would not have given him any new information, these warnings went beyond the standard of ordinary care and were rendered superfluous by the plaintiff’s prior knowledge of the risks and could not be a basis for liability. Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577.

Plaintiff’s second line of arguments was to frame this as an implied assumption of the risk case citing cases where children were injured in backyard trampoline incidents.  This does not comport with the case law in this arena.  The Court of Appeals has restricted the application of assumption of the risk to “particular athletic and recreative activities in recognition that such pursuits have enormous social value even while they may involve significantly heightened risks.” Custodi v. Town of Amherst, 980 N.E.2d 933, 935.  In Custodi, the Court explained that “the continued application of the doctrine facilitate[s] free and vigorous participation in athletic activities and fosters these socially beneficial activities by shielding co-participants, activity sponsors or venue owners from potentially crushing liability.”   This analysis drew a distinct line between designated venues and mere backyard accidents.  While not finding primary assumption of risk to apply to the facts of that case, Court in Custodi held that “[a]s a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreational activities, or athletic and recreational pursuits that take place at designated venues.”  Id. at 936.

The Court in this matter agreed with the defense and noted “Defendants set forth a rock solid case that Plaintiff primarily assumed the risk of engaging in a commercial, trampoline venture.”  The Court also noted that Plaintiff's deposition “laid out his full awareness of the risks associated with trampolines in general, and back flips in particular.”  Also, Plaintiff conceded at his deposition that a waiver or a "rules speech" would not have provided him with any information that did not already know and therefore any internal policy lapses in those respects were not the proximate cause of this incident.


Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


07/19/17          Kavanagh v. Archdiocese of the City of New York

Appellate Division, Second Department

Summary Judgment granted based on Trivial Defect

Plaintiff allegedly fell over a damaged piece of tile in an interior hallway as she was exiting the building.  The court applied the standards announced in Hutchinson  v. Sheridan Hill House Corp., the recent Court of Appeals decision on trivial defect.  In support of their motion, the defendants submitted photographs of the alleged defective condition, evidence establishing measurements of the even surface, which placed the depression of the damaged tile to be at most 1/8 of an inch.  The court concluded that the photographs, along with the plaintiff’s description of the time, place and circumstances of the incident established that the alleged defect was trivial as a matter of law.  Practice Point for Defendants:  Photographs accurately depicting the alleged defect are key in winning a case based on trivial defect.


Here is another trivial defect case that was decided on the same day by the same court (Second Department), but with a different result:


07/19/17          Chojnacki v. Old Westbury Gardens, Inc.

Appellate Division, Second Department

Summary Judgment Motion based on Trivial Defect denied based on insufficient evidence establishing dimensions of condition

In this case, the plaintiff allegedly tripped over a raised brick while walking on a brick walkway in a garden owned by defendant.  In moving for summary judgment, defendant argued that there was no defect on the walkway, or in the alterative that it was open and obvious or that defendant lacked notice of any defect.  The trial court granted the motion concluding the alleged defect was a trivial one and not actionable.  However, on appeal, the Second Department concluded Defendant failed to meet its burden.  While photographs were submitted by defendant, they did not depict the uneven surface at issue, only the plaintiff lying on the walkway.  Moreover, the court concluded there was insufficient evidence establishing the dimensions of the alleged defect.  Practice Point for Defendants:  Make sure sufficient and admissible evidence is submitted to establish the dimensions, location and other characteristics of the alleged defect.


07/19/17          Morris v. Home Depot USA

Appellate Division, Second Department

Retail liability, storm in progress and contractual indemnification – what more can you ask for in a case?

A common problem for retailers, mall owners, stores, etc. stems from parking lot and sidewalk accidents during the winter months.  Here, plaintiff slipped and fell in the parking lot of a Home Depot store that was under construction.  Home Depot commenced a third-party action against its snow plow contractor J&J, who the store relied upon for snow and ice removal, for contractual and common law indemnification.  Summary judgment motions were filed by Home Depot in the main action and third-party action, which was denied, and J&J, which was granted.   The Appellate Division ruled that Home Depot failed to demonstrate the existence of a storm: weather records showed the storm, which dropped 3 inches of snow, stopped 12 hours before the plaintiff’s fall, which suggests there would have been an opportunity to clear the parking lot.  In addition, the court noted that Home Depot failed to show it or its snow plow contractor did not take steps during the storm that possibly created or contributed to the icy condition.  Regarding Home Depot’s claim for contractual indemnification, the court found that J&J’s motion was properly granted because Home Depot failed to establish an express right to indemnification found in the contract, thus leaving Home Depot with no other party to point the finger at.  Practice Point for Retailers:  When engaging in snow plow contracts it is essential that the right to indemnification is clearly provided for in the contract and that the obligations of the contractor are clearly identified.


07/12/17          Debiase v. Target Stores, Inc.

United States District Court, D. Conn.

Plaintiff’s motion to remand case to state court granted.

While this case is not a New York State case, it does come from a district court in the Second Circuit and provides several important Federal Court practice pointers.  Here, the retail defendant removed the case to Federal Court based on diversity of citizenship, even though the plaintiff sued the store manager, who was a Connecticut resident, arguing that the manager was fraudulently joined solely to defeat diversity and thereby prevent removal.  The doctrine of fraudulent joinder is intended to prevent plaintiffs from joining non-diverse defendants “if there is no possibility the claims against that defendant could be asserted in state court.”  The Court noted that the defendant bears a very high burden of proving fraudulent joinder by “clear and convincing evidence.”  In this case, the court determined that the defendant did not establish the joinder was fraudulent and remanded the case to state court.  Practice Point for Defendants:  If you find yourself in this situation, consider moving for dismissal in the state court action as to the non-diverse defendant.  Remember you have up to 1 year to remove a case to Federal Court measured from the date the action was commenced and 30 days measured from the point the case becomes removableSee 28 USC § 1446, Procedure for removal of civil actions.  If you can get the action dismissed against the non-diverse defendant within the 1 year time period you can then attempt to remove the case to Federal Court.


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

By: Todd C. Bushway [email protected]


August?  This is the August edition?  It may be a cliché, but there are always a couple times during the year when I come up for air and cannot believe the seemingly accelerated passage of time.  This summer has been one of those periods.  But on the bright side, the Irish’s 2017 season opens on September 3rd.  And, don’t forget, everyone’s undefeated in August….


Aside from the fun and games of practicing law, I’ve spent some time this summer watching my soon to be sophomore son’s summer crew program race in a series of regattas in Southern Ontario.  Buffalo has a long crew/rowing history, as does southern Ontario, making the Canadian races an easy trek.  The summer season ended with last week’s 135th Royal Canadian Henley Regatta in St. Catherine’s, Ontario.  This is Canada’s most significant regatta – there were more than a 100 clubs represented from across Canada and the United States (mostly the eastern coast, with a few west coast and southern crews) with a smattering of international boats in as well.  His U17 4+ (four sweep rowers, plus the coxswain) boat had a terrific race on Friday - they and two other boats went the final 1200 meters of a 2000 meter race one to two seconds apart, with only two of the three boats advancing.  When they went by me at the 1500 meter mark, less than ½ a boat length separated the three boats.  My son and his boat mates hung on and advanced – and I’m pretty sure they surprised themselves that they could go full bore for such a long piece of the race.   I do think his burgeoning rowing career may be payback for the time my parents spent watching my high school cross country escapades (“career” seems, in retrospect, an inaccurate description for my efforts) – travel to an event, spend several hours in a park waiting for the start, and observe about 30 seconds of the race as it goes by your vantage point.  Wait for the next race, repeat and then drive home.


The other big activity as we head into fall is rapidly increasing pace of my daughter’s college search – she will begin her senior year of high school in a matter of weeks.  I think this falls squarely into the bittersweet category – a milestone for her, but also an exercise by my wife and me to ensure that she leaves us behind.  She’s excited and I think more than a little bit unsettled at the same time.  We visited a bunch of schools in the northeast this spring and are planning more trips this fall – I think my wife and I have decided that our role is to make sure we find a school that fits her but is going to make her challenge her expectations for herself – the fit can’t be too comfortable.  Each visit includes the obligatory tour, led by one of the school’s most exemplary students, whose accomplishments will of course make you question how little you have attained.  And no college visit is complete without a stop at the ironically titled financial aid office, a stop almost always followed by the immediate purchase of multiple lottery tickets. 


This month, we look at two cases addressing the primary assumption of risk defense, and in particular, the risks associated with field conditions, as well as a case addressing an application to serve a late notice of claim and whether injury or incident reports filed at the time of the event gave notice to the respondent of the actual claims the petitioner now seeks to bring.


PRIMARY ASSUMPTION OF RISK:  There are a two recent Second Department, Appellate Division decisions in the last month that focus on the physical condition of the playing field and surrounding areas.  As most of you know, the primary assumption of risk doctrine holds that the risks assumed by a voluntary participant include playing field conditions that are typical for the activity, even if the specific hole, puddle, etc. was not observed the participant prior to the game.

08/09/17          Deserto v Goshen Central School District

Appellate Division, Second Department

Primary assumption of risk – field conditions and  concealed or unreasonably increased risk.

Plaintiff was a high school student injured during a varsity football game.  Plaintiff, the ball carrier, was tackled by two opposing players, with the tackle taking the players out of bounds.  Plaintiff was injured when his head hit a steel plate that covered the high school’s pole vault pit, located along the sideline.  The case does not indicate just how far from the sideline the pit was located.  The school district moved for summary judgment, arguing the plaintiff’s injury was within those risks assumed by the plaintiff through his participation in the football game.

In reviewing the school district’s motion for summary judgment, the Appellate Division focused on whether the school district had met its initial burden of proof.  After repeating the basic tenants of the doctrine, including the limitation that the risks assumed do not include “reckless or intentional conduct” or “concealed or unreasonably increased risks,” the court found that that school district had failed to eliminate as an issue of fact whether the presence of the pole vault pit and its steel plate cover so near the playing field unreasonably increased the risks to players participating in game.  The court does not discuss what proof the school district might have included with their motion and make no mention or reference to any submission by the plaintiff in opposition to the motion.

Practice Point:  This case illustrates that a defendant moving for summary judgment under a theory of primary assumption of risk, has as part of its burden of proof to not simply illustrate that the plaintiff has voluntarily participated in an activity to which the doctrine applies, but that the alleged injury was not caused by two exceptions to the rule – that the injury was caused by intentional or reckless conduct or an unreasonably increased risk or latent condition.  While this case does not give any indication of what proof would have satisfied the court, it seems clear that the pole vault pit and its covering was not the type of field risk that a participant in a football game would expect, even though there is no doubt that a tackle might take a participant out of bounds and that there might be equipment on the sideline.  The case does not address whether the plaintiff was aware or knew of the pole vault pit and its cover.

08/02/17          Siegel v. Albertus Magnus High School

Appellate Division, Second Department

Primary assumption of risk – field conditions and  concealed or unreasonably increased risk.

Siegel suffered injuries when he slipped and fell on a “white or cream colored ‘cushiony’ tile” covering a drainage grate located in the third base line foul ball area of a baseball field located on the school’s property.  Plaintiff was chasing a ball when he slipped and fell on the tile.   Plaintiff was serving as a volunteer assistant coach for his son’s baseball team and testified that he had never observed the tile prior to falling.  Following discovery, the district moved for summary judgment, arguing that plaintiff had assumed the risk of falling by his voluntary participation as a coach.


In upholding the trial court’s order granting the school district summary judgment, the court highlighted plaintiff’s testimony at his discovery deposition where he acknowledged he had been at the particular field at least three times prior to the accident date, and had on those occasions sat along the third base line, in the area where the drainage grate and tile were located.  Plaintiff also testified he had served as an assistant coach for his son’s team for five to six years prior to the accident.  In response to plaintiff’s claim that he had not observed the tile prior to his fall, the court pointed to color photographs in the record (identified by plaintiff as an accurate portrayal of the conditions on the day he was injured) that showed an obvious visual contrast between the green grass and white or cream colored tile.  Finally, the court noted that the tile itself was not defective.


Practice Point:  The strength of the district’s motion here is what evidence it secured during discovery – establishing the plaintiff’s coaching experience, prior exposure to the field where the injury occurred and the open and obvious condition that the tile presented.  Once it was clear that plaintiff was an experienced coach (i.e. he was familiar with a baseball diamond and what to expect in terms of the field layout and where a coach might roam) who had been to this field previously and that the condition was open and obvious and not the result of any defect, plaintiff could not convincingly argue that he had not assumed that particular risk.




07/26/17          Maldonado v. City of New York

Second Department, Appellate Division

Application to serve late notice of claim – incident and injury reports did not give notice of particular claim.

Maldonado was an employee of the New York City Department of Sanitation and was injured when his foot got stuck in the grating on a step as he descended from a piece of equipment. Following the accident, three different Line of Duty Reports were prepared – an Injury Report, an Unusual Occurrence Report and an Injury/Illness Medical Report.  Maldonado then sought to serve a late Notice of Claim, alleging that the step grating was defective and that the City was “negligent in their ownership, operation, maintenance, inspection and control of the subject vehicle.”


Maldonado argued that the three reports gave sufficient notice of the essential facts and circumstances of the event and that as a result, the respondent would suffer no prejudice.  He also argued that his lack of awareness of the Notice of Claim requirements was a reasonable excuse for his failure to meet the filing deadline.  The court rejected this excuse.


The court also found that the three reports, while documenting that an incident had occurred and that Maldonado had sustained an injury, did not contain any information that would have given the respondent notice of the claim that Maldonado now sought to bring –that the step grating was defective and that the respondent was negligent for failing to notice and correct this alleged defect.  The court pointed to Line of Duty Unusual Occurrence Report, which noted that Maldonado’s supervisor had inspected the step after the incident and found nothing wrong.


Practice Point:            The highlight here is that the existence of a contemporaneous incident or other report (or three), prepared following the incident, is not enough, by itself, to salvage a petitioner’s claim.  Instead, the focus should be on a comparison between what the proposed Notice of Claim states as the wrongful or negligent actions and what was recorded on the incident report(s).


The question that sticks in my mind after reading this case is whether there had been any change to the step at issue – if the step had not been materially changed, it would seem that petitioner could argue that the respondent would suffer no prejudice because any investigation or analysis of the step now would show the same result had that investigation been done in the 90 days following the incident.  The Appellate Division decision makes no note on this fact or how far past the 90 day deadline the petition was filed.


Toxic Exposures

By: Tasha Dandridge-Richburg [email protected]


As part of the Toxic Tort team I was called upon to fill-in for Chris this month because presently he is in Albany, New York trying an interesting lead-paint exposure case.  Go get ‘em, Chris!  With respect to toxic tort decisions, the pickings this month are even slimmer than last month.  In fact there was only one case of interest.


07/6/17            Eileen O’Connor v. Aerco International, Inc. et al., and Fisher Scientific Company, LLC, et al.

Appellate Division, Third Department

Supply catalog defendants failed to make a prima facie showing of entitlement to summary judgment by claiming they had no sales records for asbestos-containing  products to employer.

Plaintiff was diagnosed with pleural mesothelioma.  She alleged her illness stemmed from exposure to equipment containing asbestos at her place of employment a research lab from 1975-1979.  Following joinder of issue and discovery several supply catalog defendants moved for summary judgment, arguing plaintiff failed to identify them as the suppliers of the asbestos-containing products in question.  The Supreme Court granted defendants’ motions.  The Third Department reversed, finding that in order to establish entitlement to judgment as a matter of law defendants bore the initial burden of demonstrating their respective products “could not have contributed to the causation” of plaintiff’s asbestos related injuries.  The proof submitted by the defendants, respectively, failed to establish they did not sell asbestos-containing products to plaintiff’s employer. 


Defendant, Fisher submitted their responses to plaintiff’s interrogatories which indicated they did not have records of selling these products to plaintiff’s employer.  However, plaintiff and several co-workers testified that there were asbestos-containing products in the lab and they consulted Fishers’ supply catalog, among others, to order these products. Further, there was testimony plaintiff’s employer had a contract with Fisher and another supply catalog defendant.  The Third Department found that Fishers’ lack of sales documentation did not establish it did not sell asbestos-containing products to plaintiff’s employer.


Additionally, the Third Department found with respect to supply catalog defendant, VWR International, LLC’s alternative ground for affirmance, that plaintiff failed to show specific causation based upon the test presented in Parker v. Mobil Oil Corp. that VWR failed to make a prima facie showing contradicting specific causation.  In order to make a prima facie showing at the summary judgment stage, VWR had the initial burden of establishing that plaintiff lacked the necessary degree of exposure to its asbestos-containing products to cause her illness.  VWR offers no such proof.     



Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers:

There are some cases that illicit a somewhat sophomoric eye roll out of me.  After reading the below cases, I could have passed for any teenager whose parents had just asked her to clean her room.   The cases this week are somewhat older- but still worthy of review. 


First, we have a dog bite case.  Full disclaimer, I love dogs… a lot, so that may sway my opinion.  Here, the Plaintiff was riding his bicycle when a dog ran out and ran into the bike, causing Plaintiff to fall.  Apparently this caused Plaintiff to either incur some serious injuries or he was particularly litigious because he brought an action against the dog owner.  He lost, and then appealed!  The Appellate Court applied the normal vicious propensity standard and noted that although the dog had occasionally run out into the rad before, the owner had no idea the dog had a propensity to interfere with traffic.  Who knows, maybe there is more to the story than the Court let on in its decision.  I somehow doubt it because absent from Court’s consideration was any indication that the dog ran towards the bike in a vicious manner.  That leaves me to presume that Fluffy just has poor depth perception. 


Next, we have the tragic death of a man during a Memorial Day weekend BBQ.  This particular event is very sad but did not give rise to a successful lawsuit.  Plaintiff, her husband and their two children went to visit a friend’s house for a BBQ.  The husband and his friend had a jolly good time—and as my grandmother would say “they could really bend an elbow.” Nonetheless, after hours of drinking and revelry Decedent and his friend jumped in the pool with their clothes on.  The Court noted that the men’s wives witnessed the men being “inappropriate” and decided to go back in the house and drink tea.  Unfortunately, Decedent didn’t survive his night, and his wife sued her (former?) friends.  The Court rightfully noted that the home owners did not have a duty to prevent their guests from using the pool while intoxicated.  Although I hope no one ever has to live through this experience—this was the right call by the Court.  Otherwise homeowners would have a pretty burdensome duty to patrol guests and their hijinks. 


04/19/07          Alia v Fiorina

Appellate Division, Third Department

Beware! Vicious Dog?

Now, I recognize this is an older case.  Nonetheless, it is worth a look.  Plaintiff was riding his bicycle past defendants' house, when defendants' dog ran into the road toward him, struck the front wheel of his bicycle and caused him to fall. Plaintiff brought suit against this dangerous animal. (I can’t even hide my sarcasm here) Defendants moved for summary judgment dismissing the complaint, alleging that they had no notice that their dog had any propensity to interfere with traffic. Supreme Court granted the motion, and plaintiff appealed.

The Court of Appeals’ standard is clear liability attaches where the dog has a vicious propensity. "[v]icious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation'", a dog's habit of chasing vehicles or otherwise interfering with traffic could be a "vicious propensity." However, in the absence of such proof, there is no basis for the imposition of strict liability. Notably, a violation of the local leash law does not give rise to an inference that defendants had knowledge of their dog's propensity to interfere with traffic.

Here, defendants established that, although their dog had occasionally run into the road and stood there, they knew of no incidents when it had ever charged or chased vehicles or impeded the flow of traffic. Nor had they received any complaints that the dog had ever interfered with traffic on the road in any way. This evidence was sufficient to shift to plaintiff the burden of raising a question of fact as to defendants' knowledge that the dog had previously interfered with traffic. However, plaintiff's evidence that the dog was occasionally allowed to run loose and would then sometimes go into the road is insufficient to raise a question of fact.

02/28/17          Alves v Santos

Supreme Court, Westchester County

Homeowner Did Not Have A Duty To Protect Decedent From Getting Drink And Jumping In The Pool

On May 25, 2014, plaintiff, her husband (“decedent”) and their two teenage sons went to visit defendants, their longtime friends, for a weekend barbeque at defendants' home. The Alves family arrived at approximately 1:00 p.m. and shortly afterwards, decedent and Mr. Santos began drinking


Around 11:00 p.m. they decided to go into the backyard swimming pool, despite the fact they were both highly intoxicated. At that hour, plaintiff and Ms. Santos were inside the house and had not been drinking alcohol. Decedent jumped into the pool with his clothes on, he went inside and alerted his mother and Ms. Santos who walked out onto a balcony that overlooked the pool. Plaintiff observed her husband standing in the pool “fully clothed, extremely loud and acting inappropriately.”


The two women then walked back into the house where they sat and drank tea. Approximately ten minutes later, when they walked out onto the balcony to check on their husbands, plaintiff observed her husband on the bottom of the pool.  In case you haven’t guessed it… Decedent didn’t make it. According to the autopsy report, decedent had alcohol and several prescribed medications present in his body.


Plaintiff sued her friends as the admin of her husband’s estate on the basis that defendants, as the property owners, owed a duty of care to provide reasonable supervision to their guests, including decedent, and acted with negligence, recklessness, and carelessness by allowing him in his highly intoxicated state to use the swimming pool that night, such that they are responsible for decedent's death by drowning.


The complaint also alleges defendants failed to equip the pool with life lines, life preservers or other rescue equipment, and failed to exercise due care and diligence by not restraining decedent from using the pool after they knew he had been drinking for 10 hours and was highly intoxicated. Further, Mr. Santos, due to his own intoxication, was incapable of providing supervision to decedent.  Even more absurdly, that Ms. Santos failed to take some action to prevent decedent from getting in the pool.  Of course that completely ignores that decedent’s wife, also witnessed the situation and did not intervene. 


The threshold question in any negligence action is whether defendant owes a legally recognized duty of care to the plaintiff. “A critical consideration in determining whether a duty exists is whether the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm.” But the courts have repeatedly emphasized that the “foreseeability of harm does not define duty rather it “merely determines the scope of the duty once it is determined to exist,”  Consequently, “absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.” 


The Court determined that the pool was in good working order.  They also concluded that the property owner did not have a duty to prevent or control decedent’s behavior while on their property.


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

By: Anastasia M. Stumpf [email protected]


Dear Readers,


This month’s cases share a common thread—always dot your “i’s” and cross your “t’s”.  As an attorney this can mean making sure your evidence is in admissible form, that your clients are regularly updated, and that the big picture is always in view.  As a client, it can mean ensuring that contractual relationships are well defined and that compliance with internal policies is well-documented.


05/17/17  Trigoso v. Correa and M.G.M.T Restaurant Corp. d/b/a Danu

Appellate Division, Second Department

On a motion for leave to renew a summary judgment motion, “new facts” include those facts contained in a document that the Court previously determined was inadmissible due to come correctable error due to some correctable error; Plaintiff may raise triable issue of fact on Dram Shop Act liability based upon Defendant Driver’s testimony in the related criminal action as well as from a police report.

Plaintiff was a passenger in Mr. Correa’s vehicle when it overturned.  After the accident, Plaintiff brought a personal injury lawsuit alleging that 30 minutes before the accident, Mr. Correa had been a patron at Danu and that bartenders at Danu had served Mr. Correa alcoholic beverages even after Mr. Correa became visibly intoxicated. 


In support of its motion for summary judgment on Plaintiff’s Dram Shop claim, Danu attached the unsigned deposition transcripts of two, non-party witnesses.  Although Danu did not produce any testimony from the bartenders working on the night of loss, it did produce two witnesses who testified that they had spent several hours with Mr. Correa before the subject-accident and that he was not visibly intoxicated during that time.  Unfortunately, however, because the transcripts were unsigned, the testimony of both witnesses was determined to be inadmissible and the motion was subsequently denied. 


After the court’s denial, Danu obtained the missing witness signatures and made a motion for leave to renew its prior summary judgment motion.  The lower court granted the motion for leave to renew, considered the nonparty transcripts, and granted Danu’s summary judgment motion, dismissing Plaintiff’s Dram Shop claims against it.


On appeal, the Second Department held that the trial court had been correct to grant Danu’s motion for leave to renew, but should have denied Danu’s summary judgment motion.  Ultimately, the Appellate Court’s decision underscores two notable principles—first, on a motion for leave to renew, the moving party must establish the existence of new, outcome-determinative facts that the court did not previously consider.  Information contained in a document submitted but found inadmissible due to some curable defect will constitute “new facts” if later submitted in admissible form.


Second, although Danu may have established prima facie entitlement to summary judgment, Plaintiff, in response, raised a triable issue of fact as to whether Danu’s bartenders (who were never presented for deposition) served alcohol to Mr. Correa when it pointed to testimony that Mr. Correa gave in a related criminal action.  Specifically, Plaintiff introduced testimony from Mr. Correa’s plea hearing wherein he pled guilty to aggravated driving while intoxicated, admitted to drinking “a few mixed drinks”, and admitted to having had a BAC of more than .18%.  Plaintiff also relied upon the police report for the subject-accident, which stated that after the accident, Mr. Correa was “observed to be intoxicated and placed under arrest.”



06/30/17          Sager v. City of Buffalo, NHJB, Inc. d/b/a Molly’s Pub, N. Habib, M. Miranda

Appellate Division, Fourth Department

Dram Shop claim against out-of-possession landlord dismissed after landlord produced evidence establishing lack of ownership, control, and/or interest of tavern located on subject-premises. 

The Administrator of Plaintiff-Decedent’s Estate brought a lawsuit asserting a section 1983 violation (conspiracy to deprive decedent of his civil rights) and a wrongful death claim after decedent was fatally injured at Molly’s pub.  More particularly, Plaintiff alleged that his son, the decedent, was injured after an employee of the pub assaulted decedent and he was removed from the pub by off-duty police officers employed as bouncers.   By his Complaint, Plaintiff named the City of Buffalo, the pub, the pub’s owners, and the owner of the subject-premises as Defendants and alleged that all of the defendants conspired to deprive decedent of his civil rights; that all of the defendants were liable for negligent hiring and retention; that all Defendants violated the Dram Shop Act; and negligence based on a defective or dangerous condition of the premises.


The pub’s owners, Habib and NHJB, first moved to dismiss the Complaint for lack of personal jurisdiction over Habib, a Florida domiciliary.  The Appellate Division quickly determined that New York Courts did indeed have jurisdiction over Mr. Habib because he was the name principal on the bar’s liquor license and because several witnesses stated that Mr. Habib was known to be regularly present on the premises and, in fact, was present at the bar on the date of the incident.  Thus, it was reasonable to conclude that Habib had engaged in sufficient purposeful activity to confer jurisdiction in New York and should have reasonably anticipated being hauled into court in New York.


Although the Court denied Habib and NHJB’s motion to dismiss, it granted the motion of out-of-possession landlord Miranda, finding that the Plaintiff failed to sufficiently state a cause of action against him.  Specifically, the Court held that Miranda submitted sufficient evidence that he was not liable for negligent hiring or retention, violation of the Dram Shop Act, or any dangerous or defective condition, by providing a copy of the lease for the premises, which specifically stated that Miranda would not be liable for any injury or for any defects in the building, as well as an Affidavit stating that Miranda had no ownership interest in the pub; that he did not exercise any control over the operation of the pub or its personnel; that he had no actual or constructive notice of a dangerous or defective condition on the property; that he had no agreement with the City’s police department for any purpose with regard to the property; and that he was not named on any liquor license for the pub. 


06/22/17          Bynum v. Camp Bisco, LLC

Appellate Division, Third Department

An attorney representing multiple defendants in the same lawsuit must obtain written waivers from each defendant and must establish that her representation of multiple defendants will not interfere with diligent representation of each.

Plaintiff’s daughter sustained serious, and ultimately fatal, injuries after ingesting a harmful substance while attending a music festival called Camp Bisco.  By her Complaint, Plaintiff alleged that Camp Bisco was negligent because it failed to provide adequate onsite medical assistance and purposefully misrepresented the expected number of attendees to the local municipal permitting authorities. 


Part and parcel with her negligence suit, Plaintiff issued a discovery request for festival ticket sales from 2008 to 2012.  Finding the request material and relevant to Plaintiff’s claims, the lower court denied Defendant’s application for a protective order and instead compelled the requested records.  Plaintiff then cross-moved to disqualify defense counsel from representing all the Defendants.  In response to the cross-motion, the lower court required defense counsel to provide statements from each Defendant addressing the potential conflicts of interest.  The Appellate Division affirmed both portions of the lower court’s decision.


With regard to the conflict of interest issue, the Court specifically  noted that Defendants failed to preserve an objection to Plaintiff’s lack of standing to raise the issue in the first place, and also stated that the Court’s prior ruling ensured compliance with the rule that a lawyer may represent client if (1) lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives consent, confirmed in writing.


05/11/17          Griguts v. Alpin Haus Ski Shop, Inc.

Appellate Division, Third Department

Plaintiff, who fell during a storm, failed to raise a triable issue of fact where Plaintiff’s own deposition testimony indicated that there was no proof that the ice patch that caused her to fall had developed before the storm.

Plaintiff brought a suit for personal injuries after she slipped and fell on a sidewalk at a strip mall.  The incident at issue occurred during an active storm and, in support of its motion for summary judgment, Defendant offered the expert opinion of a meteorologist, weather data, and winter weather advisories that warned about “slippery conditions” at the time of loss.  Defendant also provided the Plaintiff’s own deposition testimony, as well as the testimony of a non-party witness, both of whom stated that it was snowing on the morning in question and that there was an accumulation of snow on the ground in the area.


Ultimately, the Court found that the evidence set forth by Plaintiff in response to Defendant’s motion was speculative because all of the witnesses in the case, including Plaintiff, conceded that there was no actual evidence that the ice patch at-issue had formed before the storm in question.


06/26/17          Vozzo v. Fairfield Westlake Square LLC

Appellate Division, Second Department

Storm in Progess Doctrine results in another successful summary judgment motion

Similarly, Defendant established prima facie entitlement to summary judgment when it submitted Plaintiff’s own deposition testimony that precipitation fell prior to the accident and that, at no point, did she see the icy condition that allegedly caused her to fall.  Defendant further established that the precipitation that fell on the date of loss had formed black ice and that Defendant had no actual or constructive notice of that black ice.  Plaintiff failed to put forth any evidence that the alleged black ice had formed before the storm at-issue.


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


August, the true dog days of summer.  Many people take summer vacations and leave work for a week or two.  I am lucky enough to reside in the Adirondacks, the original vacation destination.  The idea for “vacation” arose out of a “radical” idea in the second half of the 19th Century that one could have an enjoyable experience by spending time in the outdoors and otherwise “vacating” your city during the summer months.  The Adirondacks became the place to go “vacation” for wealthy families largely from New York City and Boston and the roots of this vacation economy are still present and active to this day, especially in Lake Placid, where I live and work.  It is no longer just those visiting in the highest economic stratospheres; now vacation has become an integral part of many employee compensation packages and for workers to re-charge and relax.  Many employers even require employees to take a vacation, finding the employees more efficient, beneficial and useful with a cleared head and some needed rest. For more information on the original vacation and the origins of the term, see this article from the Smithsonian Magazine:

           While employers often benefit from refreshed employees, the time that they are on vacation can be a challenge.  Many times, one employee needs to cover for another, doing a job they are not used to, covering in areas they are unaccustomed to or otherwise expected to handle situations that they are not comfortable with or necessarily know what to do.  For an employer like an elevator company, of which many have contracts that require key employees to perform preventative maintenance on an elevator monthly, this can mean that an employee who is not used to working a specific location will have to cover for his or her co-worker.  Log books still need to be updated, reported problems attended to, maintenance handled.  This can lead to issues with elevators falling through the cracks. 

            This month’s column focuses on some recent cases which involve potential liability for elevator companies that have contracts which, in many cases, make them responsible for all matters of elevator operations in a building.  Often, the playbook for a defense firm representing an elevator repair/maintenance company is to make a motion for summary judgment based on notice provisions.  The decisions reviewed this month delve into what Courts look at for these types of motions.  To be clear, I have no inside information that any of these alleged incidents are the cause of regular employees who service the subject elevators being on vacation, but I needed to connect it back to my introduction!

Please feel free to contact me if you have any questions, comments or just to say hey – [email protected] or (518) 523-2441.  Don’t be shy if you are on one of those vacations to the Lake Placid area and want to stop by the office either; just whatever you do, don’t say you are on “holiday” in the Adirondacks!


05/04/16          Little v. Kone, Inc.

Appellate Division, Second Department

Defendant Elevator Company’s Motion to Dismiss Granted as No Evidence Company had Actual or Constructive Notice of Elevator Gate Closure Issue

Plaintiff alleged she was injured when she was entering a freight elevator while at work.  She was alleged struck on the head by the elevator gate when the safety procedures designed to alert an elevator user that the gate was closing – an alarm bell and a strobe light – did not activate, per plaintiff’s claims.  Defendant elevator company brought a motion for summary judgment seeking dismissal of the complaint for failure to have notice of the alleged condition at issue.

The Second Department, in reversing the trial court’s decision and granting the elevator company’s motion, quoted the 1973 Court of Appeals decision Rogers v. Dorchester Associates and stated what is the starting point for any analysis involving an elevator company’s alleged negligence: “An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found”.  32 N.Y.2d 553, 559 (1973) (additional citing and quoting authority omitted).  The Second Department found that the defendant had submitted prima facie evidence that it did not have actual or constructive notice of an ongoing condition that would have caused the elevator’s gate to close without an adequate warning.  The Court found that the plaintiff’s expert’s affidavit was conclusory, without foundation and speculative; not enough to raise a triable issue of fact.  The Court also found that the plaintiff was not entitled to the benefits of res ipsa, because the plaintiff had not provided evidence that this sort of accident occurred but for someone else’s negligence.

While the decision does not specify what the defendant elevator company provided by way of its prima facie evidence of a lack of notice, it likely consisted of a combination of proof that no one had previously complained about the issue plaintiff claims to have been injured by to the elevator company, regular and documented visits to the elevator by the elevator company, regular maintenance records for the elevator and potentially an expert affidavit indicating that what the plaintiff claimed was not possible to have occurred.


12/07/16          Villardi v. Jones Lang LaSalle, Inc.

Appellate Division, Second Department

No Notice for Defendant Elevator Company of Alleged Door Malfunction Leads to Summary Judgment for Elevator Company

A case similar to the above Little v. Kone, Inc. decision, the plaintiff alleged that he was using a freight elevator at 1 U.N. Plaza when the upper door of the elevators closed without notice and hit his head.  The plaintiff sued both the property manager and the defendant elevator company for his alleged personal injuries.  It should be noted that though this decision does not specify, it is likely that plaintiff, like the plaintiff in Little v. Kone, Inc. above, was probably working in the scope of his employment.  This may be why the building owners in this decision and the above decision are not included in the suit; the respective plaintiffs’ sole remedy, absent a grave injury, would be for Workers Compensation benefits, which does not provide for the big paydays plaintiffs’ attorneys seek for pain and suffering.


The Court found that both the elevator company and the property manager provided prima facie evidence that they did not have actual or constructive notice of the alleged condition which caused the elevator’s door to close without warning.  The Court also found that plaintiff was unable to raise a triable issue fact in response to this motion.


0215/17           Orahovac v. CF Lex Associates

Appellate Division, Second Department

Summary Judgment Denied for Defendant Elevator Company for Failure to Meet Prima Facie Burden

Plaintiff, who was a freight elevator operator, was allegedly injured when the elevator he was in dropped suddenly from the 27th to the 23rd floor and came to an “abrupt stop”.  Plaintiff sued the property owners and the elevator company which maintained the elevator in question and each of the defendants moved for summary judgment separately.

The Court quoted the well-known Rogers language in setting forth the standard cases involved elevator repair companies.  The Court found that both defendants had failed to meet their prima facie burden on a motion for summary judgment.  From the decision, it appears that the defendants only proffered testimony on what the plaintiff testified to and from the plaintiff’s bill of particulars, not focusing on providing competent evidence that the elevator operated properly and was not defective.  Additionally, evidence was no provided which indicated that if the elevator was defective, the elevator company had no notice of the defects either actual or constructive.  Thus, because defendants could not meet their burden on their motion for summary judgment, the Court did not make inquiry into opposition papers for the plaintiff and defendants’ motion was denied.

Obviously, when representing an elevator company, make sure you meet your prima facie burden on your motion; failure to do so will leave you with egg on your face when reporting to your client and carrier!


07/09/15          Medinas v. MILT Holdings LLC

Appellate Division, First Department

Summary Judgment Granted for On Call Elevator Repair Company with Limited Agreement with Property Owner

Plaintiff was allegedly injured when the freight elevator he was using to move a vehicle free fell from three stories high before hitting the ground.  Plaintiff brought an action against the property owner, the management company and elevator company which had previously serviced the elevator.  The elevator company had terminated its agreement with the elevator management company some six months prior to maintain the subject elevator because of nonpayment, a fact that was not disputed by the defendants.  The elevator company agreed to respond to emergency calls on a per call per payment basis instead, however.

The defendant elevator company argued on its motion for summary judgment that there was no duty to the plaintiff because of the termination of the contract, that there was no actual or constructive notice to the company and that the doctrine of res ipsa loquitur was inapplicable on the facts of the case.  The Court, in deciding the first argument, quoted the seminal 2002 Court of Appeals decision Espinal v. Melville Snow Contrs. In stating that when a contractor has entered into a contract to render services, it only assumes a duty of care to nonparties to the contract in three situations: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launches a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.”

The Court found that in applying the Espinal rule here, even if the elevator company had negligently inspected the elevator and negligently failed to correctly asset the condition of the elevator during the per call portion of the relationship (following termination of the contract), it could not be said that the elevator company had launched a force or instrument of harm.  The Court noted that there was no evidence as to how the elevator company had allegedly created or exacerbated a dangerous condition, while plaintiff’s expert concluded, in sum and substance, that the elevator company had failed to diagnose and correct a dangerous condition.  The allegation that plaintiff’s expert made that the greasing of the bearing created a dangerous condition, despite also opining that the bearings were already “bad” at the time of the accident, failed to create an issue of fact because the expert did not explain how greasing the bad bearings made them more dangerous than they already were.


Newsletter Sign Up