Premises Pointers - Volume I, No. 4

Premises Pointers
Watch your step!


Volume I, No. 4

Friday, September 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 Fall and welcome new subscribers!  I am sending this issue while heading home from Arkansas where I attended the Arkansas Trucking Seminar this past week held in Rogers, AR.  In case you are wondering, in addition to practicing law in the area of premises liability, I also handle trucking and commercial transportation matters for clients (In fact, I may from time to time cover a case in that area as I’m sure some of you have transportation cases).  The seminar covered a variety of great topics that cross over into most areas of general liability defense work, such as cellular and GPS tracking and spoliation of evidence (which we plan to cover in an upcoming Premises Pointers issue because it keeps coming up in the context of surveillance videos).  With summer winding down, the Appellate Courts have been quiet (though we do have a case from the New York Court of Appeals that was issued yesterday) and hence not as many cases to report on as in prior issues, but no need to worry because all of the Courts will be in full swing in the coming months.  In fact, I personally have two appeals pending in the Fourth Department that will be argued in January and February.   One is an assumption of risk case involving a student participating in her high school musical and the other case involves notice (or lack thereof) in the context of an altercation that occurred on school grounds. 


On the restaurant front, I came across an article today from The Washington Post about a Colorado lawsuit just filed against Starbucks claiming a plaintiff and her dog sustained serious burns due to scalding hot tea…click here for the article.    The claim is that the lid on the cup was not properly secured and therefore came off when the cup was handed to the plaintiff, that the cup was not doubled, had no sleeve and that the tea was too hot.  Starbuck’s denies the allegations and claims there is surveillance video that disproves plaintiff’s claims and establishes their employee did nothing wrong (assuming that is the case it certainly illustrates why it is so critical to maintain surveillance footage and that policies should be in place to review and save surveillance upon receiving notice of an incident).


Finally, a HUGE congratulations to Premises Pointers contributor and toxic torts guru Chris Potenza who obtained a defense verdict in Albany County Supreme Court in a lead paint exposure case last month.  The plaintiff had a lead level of 38 while residing at the insured’s property, which for those who do not practice in the area of lead exposure is high.  Nice work Chris!  And kudos to our friends at New York Central Mutual for having faith in their insured (and their defense counsel) and the gumption to try this case despite the significant risk of a high damages verdict.   Chris has provided us with a detailed trial report in his column.   


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

Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


09/14/17          Parietti v. Wal-Mart Stores, Inc.

New York Court of Appeals

06/22/16          Parietti v Wal-mart Stores, Inc.

Appellate Division, Second Department

This slip and fall case is a real head scratcher!

Before we get to the Court of Appeals decision, let’s look at the Appellate Division decision that was appealed.  The plaintiff was allegedly injured when she slipped and fell on a wet spot on the floor near an ice machine in defendant’s store.  The Appellate Division determined that the defendant met its burden and established it did not create the condition, nor did it have actual or constructive notice of it.  To support this position, defendant submitted evidence it did not receive any written or oral complaints by customers or employees concerning water on the floor or of a leak in the ice machine.  Defendant also submitted employee affidavits and video surveillance recordings demonstrating that its employees monitored the conditions at the front of the store just minutes before plaintiff’s accident and no one observed water on the floor (this is key because as the moving party defendant was required to demonstrate when the last inspection of the area was, rather than rely on evidence of the general practice).  In addition, the plaintiff testified that she did not see any water on the floor a few minutes before her fall.   Based on this affirmative showing, the Appellate Division ruled that the Supreme Court should have granted defendant’s motion and therefore reversed the decision. 


Fast Forward to 2017 and the New York Court of Appeals.  With little discussion or analysis, the Court of Appeals reversed the Appellate Division stating that triable issues of fact exist as to whether defendant “had notice of a hazardous condition and a reasonable amount of time to correct or warn about its existence.”   It is unclear what exactly the reversal turned on, but it certainly raises questions about what type of evidence is necessary on summary judgment.  One would think employee affidavits establishing when the last inspection took place, the results of that inspection, surveillance video and testimony from the plaintiff would be sufficient, but not in this case!


08/23/2017      Gashi v. Abramson Brothers Incorporated

Appellate Division, Second Department

Summary judgment granted to property management agent who retained no maintenance or repair obligations upon leasing property to tenant ice-cream shop

The plaintiff was allegedly injured while standing on the sidewalk outside an empty storefront when he was struck by a door as it was opened from the inside.  The premises were leased to Steve’s 42nd Street LLC and were under renovation for use as an ice-cream store.  The plaintiff sued the managing agent of the premises, the two individuals alleged to have opened the door, the tenants.  All defendants moved for summary judgment and all motions were denied by the Supreme Court.  On appeal, the Appellate Division held that the managing agent was entitled to summary judgment because it had relinquished control of the premises to the tenants and was not contractually bound to maintain or repair the premises.  However, the Supreme Court’s decision was upheld as to the remaining defendants based on questions of fact.

Practice point:   Understand the contractual obligations of the parties as contained in lease agreements, which will typically outline maintenance and repair obligations.


08/11/17          Reddy v. 488 3rd St. Owners Corp

Supreme Court, Kings County, New York

Expert Affidavit insufficient to establish defendant’s entitlement to summary judgment in defective stairwell case

Plaintiff allegedly fell while attempting to descend a winding stairwell that connected the third and fourth floors in a Brooklyn building.  Plaintiff claimed the staircase was defective because of non-uniform risers and inadequate winders.  In support of its motion for summary judgment, defendant argued that the stairwell was neither defective nor dangerous and submitted the affidavit of a licensed mechanical engineer who maintained the New York City Building Code did not apply due to the age of the building did not require the stairwell to be changed to become code compliant.  The following was noted about the expert’s affidavit:  1.) the expert’s inspection was conducted 16 months after the alleged fall and there was no proof in the record that the conditions observed at that time of the inspection existed at the time of the fall; 2.)  he opined that the premises had been in existence since 1880 and referenced an atlas of Brooklyn but did not attach any part of the atlas he relied upon; 3.)  while he attached a diagram of the stairwell he did not explain his findings with regard to height and width differentials in the treads and risers; 4.) while he maintains code compliance not necessary, this is not determinative on the issue of whether the stairwell was dangerous or defective at the time of plaintiff’s accident.  Regarding the trivial defect argument advanced, defendants failed to so submit to submit photographs that accurately represented the accident site.  The Court noted the 3 of the 4 photos submitted by defendants were of the stairwell generally and not the stair at issue and the photograph of that stair was too dark and grainy to show the actual condition of the step.  The motion was ultimately denied because the Court concluded defendants failed to meet its burden and therefore did not consider the sufficiency of plaintiff’s responding papers.

Practice point: The Record is critical to summary judgment!  If you are relying on an expert affidavit, make sure the expert’s opinions are supported and that somewhere in the Record there is proof that the conditions observed by the expert are indeed the conditions that existed at the time of the incident.  In this case, defendants could have easily addressed this by submitting an affidavit from the building to verify there were no changes to the stairwell between the date of the incident and date of inspection.  Furthermore, if you are relying on photographs, make sure they are of the area/condition in question and that they are clear and visible.


08/11/2017      Melia v. 50 Court Street Associates

Appellate Division, Second Department

Slip and fall on sidewalk abutting a store due to missing caulk between two sidewalk slabs resulting in a 1 inch gap was deemed a trivial defect that was not actionable

Believe it or not, I have personally handled my fair share of “missing calk” cases.  It is a relatively common claim, particularly here in the Northeast where weather plays a role in sidewalk conditions.  The plaintiff in this case claimed there was a 1 inch gap between the two sidewalk slabs due to the missing caulk.  Defendants moved for summary judgment and argued the alleged defect was trivial, that they never received complaints about the gap and were aware of no prior incidents.  Even the plaintiff, who regularly visited the store, testified he never noticed the gap.  The Supreme Court denied the motion, but the Appellate Division reversed based on evidence submitted by defendants, including the deposition testimony of the plaintiff and photographs of the accident site, that the gap was trivial.

Practice point:  Photographs are a key and necessary piece of evidence if you want to prevail on summary judgment.  If they are not taken, you will be at a disadvantage when moving for summary judgment.



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

By: Todd C. Bushway [email protected]


Welcome to September.  Organization.  Cooler nights.  College Football. What I’ve noticed is the best part of the kids going back to school, especially now that my kids are older, is that it restores order to our home.   By the end of the summer everything seems to get ragged – everyone’s best intentions on projects and plans are crumbling and there is a rush to wring the last drops from the summer.  The school schedule almost instantly rights that ship. 


The late summer – early fall music calendar has been good to me as well.  U2 came through Buffalo last week, allowing thousands of 40-50 year olds to relive the halcyon days of their youth for a night.  The 1980’s musical theme continues over the next month or so with tickets for 3 good shows featuring alternative/punk/new wave luminaries X, the Pixies and Psychedelic Furs.  X and the Pixies need to be in the Hall of Fame.  And for those worried about losing touch with new music, I would suggest checking out more current acts like Beach House, American Aquarium, the Pollies and Craig Finn.  All good stuff.


On to the cases.  As is typical, court calendars are light this time of year, but there are a couple of interesting cases to review.




07/07/17  Cummings v. Manville

Appellate Division, Fourth Department

The Appellate Division, Fourth Department examines whether the property was appropriate for the activity ongoing at the time of the injury and whether, therefore, New York’s recreational use statute served as a defense to the suit.

General Obligations Law §9–103 is New York’s “Recreational Use Statute”, which was passed to entice property owners to allow use of their properties for certain delineated recreational or sporting activities by limiting those property owner’s risk of suit for negligence claims arising out of the listed uses.  The activities specifically enumerated in the statute are:  



  1. Hunting;
  2. Fishing;
  3. Canoeing;


  1. Boating;
  2. Trapping;
  3. Hiking;


  1. Cross-country skiing;
  2. Tobogganing;
  3. Sledding
  4. Speleological activities;
  5. Horseback riding
  6. Bicycle riding;
  7. Hang gliding;
  8. Motorized vehicle operation for recreational purposes;
  9. Snowmobile operation;
  10. Cutting or gathering of wood for non-commercial purposes;
  11. The training of dogs; and
  12. Organized gleaning



(Don’t worry, I looked it up – Organized Gleaning is defined as “the harvest of an agricultural crop that has been donated by an owner, lessee, or occupant of premises or occupant of a farm by persons who are sponsored by a charitable not-for-profit organization.”  New York Agriculture & Markets Law §71-y.)

Cummings was injured when he struck a pothole and crashed while riding a four wheel all-terrain vehicle on a gravel road located on property owned by the defendant.  In response to the plaintiff’s suit, the property owner raised General Obligations Law §9–103 as a defense.


The case does not break any new ground but does give a good overview of how the statute is applied.  At the outset, the Court noted the basic elements necessary to raise the issue.  These include:

  1. As the party raising the defense, the defendant bears the initial burden of showing the elements are met;

  2. The defendant must show that he/she was the owner, lessor or occupant of the property at issue;

  3. That the injured plaintiff was engaged in one of the activities enumerated in the statute; and

  4. That the property was in fact suitable for that enumerated activity.


In Cummings, there was no dispute regarding the defendant’s ownership or control of the property or that riding an all-terrain vehicle was a covered activity.  The issued addressed by the Court was whether the property was conducive to the activity. 


The court refers to several other decisions arising from the use of all-terrain or dirt bikes to highlight that the focus need be on that particular portion of the property where the incident occurred and not the general characterization for the entire property.  Another factor is whether the property in fact has been used for that activity in the past.


The road at issue here was a private roadway used for what the court deemed “residential” purposes, which included access to residences and other properties and that a school bus on occasion used the road as well.  The parties offered testimony about whether the roadway was used by the residents to access the area versus how often the roadway was used for all-terrain vehicles or snowmobiles. 


Focusing on the residential versus recreational purpose of the roadway, the fact that application on these type of facts would allow the defense for all manner of rural roadways and the fact that this type of property the legislature intended to induce property owners to open up for recreational use by removing potential liability, the court declined to apply the defense to this case.


The court did distinguish the case from the Court of Appeals decision Albright v. Metz, 88 N.Y.2d 656 (1996).  In that case, plaintiff was injured when the dirt bike he was operating crashed from a pathway into a landfill on the property.  In that case, the court held that while the property was generally used as a landfill, the pathway itself was appropriate for dirt bike use and therefore the defense was applicable and barred the claim.


It should be noted that the Court’s decision to not allow the recreational use statute as a defense is not the end of the case – the case will now be decided as a general negligence case.




09/13/17  Lipani v. Hiawatha Elementary School

Appellate Division, Second Department


Plaintiff was injured when she tripped over a rolled up mat as she was exiting a school building.  The school was being used as polling location and plaintiff was exiting the building after voting.  The incident occurred during a power failure, which had affected the lighting in the building.


Plaintiff then timely filed a Notice of Claim and the school district conducted an exam pursuant to General Municipal Law §50-h.  The matter was then placed into suit, with plaintiff claiming that the poor lighting conditions caused by the power failure were a factor in causing her injury.


Following discovery, defendant school district moved for summary judgment.  One of the grounds for the motion was that the Notice of Claim did not include and description or allegation regarding lighting conditions.  The Notice of Claim only stated that the plaintiff had been “caused to fall as a result of a rolled up mat” located within several feet from the entrance doors.  Plaintiff’s Bill of Particulars had alleged that the rolled up mat was located in a “dimly lit” area.  The lower court rejected the school district’s argument, a decision then upheld by the Appellate Division.


The court began its analysis by noting it had the authority to look beyond the Notice of Claim itself to determine if the defendant had adequate notice of the underlying facts and circumstances and basis of the claim made against it and to allow for the correction of a good faith mistake or omission.  The court noted here that the addition of the “dimly lit” allegation in the Bill of Particulars did not substantially change the allegation against the defendant.  Further, the court noted that (1) the issue of the lighting as a contributing factor in causing the accident had been addressed by counsel during the §50-h exam of the plaintiff and (2) the school’s own incident report prepared following plaintiff’s fall noted that the area was dark because of the power failure.   Based upon this record, the Appellate Division Court upheld the lower court’s determination that the school district had adequate notice of the claim against it.


LATE NOTICE OF CLAIM – Lack of Prejudice to the Respondent


06/08/17  Kranick v. Niskayuna Central School District

Appellate Division, Third Department


Plaintiff was injured when he stepped into a depression in a school parking lot while exiting a bus.  The sole issue on appeal was whether the district was prejudiced by the delay and/or whether the district had actual knowledge of the circumstances underlying the claim.  In reversing the lower court’s denial of the petitioner’s application, the Appellate Division noted that the claimant, at his examination conducted pursuant to General Municipal Law §50-h, had identified the exact location in the parking lot where the incident occurred on a map of the location and testified that the condition of the parking lot at that area was unchanged from the time of the incident.  The court also noted (although it was not supplied with copies) that there were a set of photographs of the alleged defect in the parking lot where plaintiff fell that were taken about a month after the incident and submitted by claimant as part of a worker’s compensation claim. 


Based upon this record, the Appellate Division held that the school district was not prejudiced by the failure to timely file a notice of claim.  It is interesting to note that the motion was not brought until after the General Municipal Law §50-h hearing was conducted.  That testimony served as a material factor in support of the petitioner’s application.  One has to wonder if that testimony had not yet been taken if the result would have been the same, since that testimony served as the basis for establishing an awareness of the specific location of the incident and the source of petitioner’s statement that the alleged defect remained both present and unchanged.


LATE NOTICE OF CLAIM – Accident or incident report was sufficient notice to the respondent of the basis of the claim against it.


03/31/17  Kennedy v. Oswego City School Dist.

Appellate Division, Fourth Department


In the least two issues, I reported on cases from the Appellate Division, Second Department addressing the filing of late Notices of Claim and whether injury or incident reports, which detailed what had happened and what the injury were, in fact sufficient to give the municipal entity actual notice of the basis for the proposed claim.  (D.M. v. Ctr. Moriches Union Free School District and Maldonado v. City of New York).  In both of those cases, the applications were denied on the basis that the factual reporting in the contemporaneous reporting did not give notice of the alleged theory of liability.


Because of the late summer lull of cases, I thought I would take a look at the other Appellate Departments to see what they have written on the issue.  The Fourth Department’s March, 2017 decision in Kennedy presents a similar case scenario.


Kennedy was a worker injured in fall from at a construction site at a school building.  The application for a late notice of claim was premised on the accident report prepared by the claimant’s employer, which claimant contended had been provided to the district’s construction manager.  After determining that claimant had not established that the report in fact gave any notice to the district because the record did not support that the claim that the construction manager was the agent of the district.  Putting that aside, the court then held the accident report did not give the district actual notice of the claim because the narrative on the report “described the underlying occurrence and claimant's injuries in general terms and made no connection between the accident and any liability on the part of respondent.


From a practical perspective, it is clear that the existence of an incident, accident or other report does not equate to a claimant being granted leave to serve the late notice – the focus needs to be what’s in the report.  The mere happening of the incident and the fact of an injury is not the same as providing the basis for the alleged liability.  For example, a report indicating a person fell on uneven ground outside a building does not give notice that the potential plaintiff will claim that poorly designed landscaping and property maintenance lead to poor runoff, which lead to the condition.


I have always thought this area of the law is built upon somewhat of a legal fiction and these cases do nothing the changes that view.  If, on review of an application to serve a late notice of claim, the incident or accident report’s recitation of the injury and basic facts are not sufficient to apprise the potential defendant of the basis of the claims sought against it, how is the defendant any more protected if the notice of claim was served on day 85 instead of on day 135 or day 160?  The incident report is still devoid of the necessary investigation, and in a case with a transient or changing condition (i.e. the construction site in Kennedy - the work continued, the scaffolding and other equipment was modified, moved, removed, etc.) the defendant is still without any real ability to look at the specific details of the accident location and potential causes of the incident.


Toxic Exposures

By: V. Christopher Potenza [email protected]


It’s nice to be home (and in the office I guess) and back in the routine after a hectic August, which included a week and half on trial in Albany, followed up with a week at Crystal Beach, Ontario with my wife and kids.   While it was great to be back on trial, it certainly does not compare to a week with toes in the sand watching six-year old big sister and her twin four year-old brothers enjoying every minute of beach life.  As a wise 80’s icon once said, “Life moves pretty fast.  If you don’t stop to look around for a while, you might miss it.”


As for the trial, we were fortunate enough to be asked by our friends at New York Central Mutual to try a not-so-ordinary lead-paint exposure case in Albany County. Plaintiff had a very high blood lead level of 38 ug/dl shortly after moving into the insured’s property in 1996.  The insured, however, was not a career landlord, but a first-time landlord who, in fact, lived in the same apartment with his own young children immediately before the plaintiff’s tenancy.  As is the case with most trials, credibility ruled the day.   While the insured was strong, relatable, and credible on the witness stand, plaintiff, in my opinion, lost the jury by failing to acknowledge head-on her prior and concurrent lead exposures at different properties, as well as her lengthy, well-documented history of psychiatric care, family abuse, and trauma as having impacted her academic performance.  The end result was a defense verdict finding the insured was not negligent!  Although the jury never reached the issue of causation, our defense neuropsychologist, David Masur, Ph.D., was an excellent witness who bolstered the overall credibility of our defense.  Credit goes to NYCM for their faith in their insured and willingness to defend him, despite the risk and costs.


As for the appellate decisions,  there are just a couple of interest, including a surprising decision from the First Department where the court ruled that a prior release for an asbestos-related injury did not preclude a future claim for asbestos related mesothelioma.


8/29/2017        In re New York City Asbestos Litigation, South v. Chevron Corp, et al.

Appellate Division, First Department

First Department finds that a General Release executed to resolve prior non-malignant claim did not preclude later claim for asbestos-related mesothelioma.

The decedent plaintiff alleged that his mesothelioma was caused by exposure to asbestos during his 37-year career in the Merchant Marine, and that defendant, Chevron/Texaco, manufactured, produced, sold, supplied, merchandised, and/or distributed asbestos-containing products that were located on the ships plaintiff worked on. Texaco moved to dismiss on the basis that plaintiff had previously executed a General Release to Texaco in a 1997 asbestos-related lawsuit.  The Release at-issue included any "bodily and/or personal injuries, sickness or death" allegedly arising from plaintiff's asbestos exposure and acknowledged that the "long term effects of exposure" to asbestos might result in "obtaining a new and different diagnosis from the diagnosis as of the date of this Release."

Because plaintiff’s second lawsuit was brought pursuant to the Jones Act (46 U.S.C. § 30104 et seq.), the prior Release faced the strict scrutiny of Section 5 of the Federal Employers' Liability Act (FELA) (45 U.S.C. § 55).  Section 5 of the FELA requires the Court to apply strict scrutiny to Releases and prohibits agreements that exempt common carriers from liability. Under that standard, plaintiffs asserted that, at the time plaintiff signed the prior release, he did not have mesothelioma and was not aware of the risk of mesothelioma as a potential injury from his asbestos exposure.  


Since this was an admiralty case, Texaco had the burden of establishing that the Release was enforceable and that plaintiff fully understood his rights and received adequate consideration at the time of execution.  The court found that the Release at-issue did not explicitly mention that plaintiff was forgoing any claim against Texaco for mesothelioma; that the 1997 Complaint, while making generalized allegations that plaintiff had been exposed to asbestos, was exceedingly vague as to whether plaintiff had actually contracted an asbestos-related disease;  and, that in the court’s opinion, the consideration received in exchange for the prior Release was “meager.”


While this decision is surely troublesome, we should remember that the prior Release was scrutinized under the heightened FELA standard.  It is also worth noting that, although the FELA is a federal law, Court interpretations of how the FELA actually applies to Releases varies amongst federal circuits (i.e. the known-risk approach vs. the known-injury approach).   Nonetheless, this case should be a caution to all of us to make sure our Releases are tight and explicit. 


8/30/2017           Matute v. New York City Housing Authority

Appellate Division, Second Department

Second Department finds defendant could not establish that it did not have notice of lead paint hazards based on local administrative code of the City of New York. 

In October 2003, the plaintiff, an infant, allegedly sustained injuries from exposure to lead-based paint while living in an apartment of a multiple dwelling owned by the defendant, New York City Housing Authority.  During the period of the plaintiff's alleged injuries, Local Law No. 1 (1982) of City of New York (Administrative Code of City of NY former § 27-2013[h]) was in effect.  Local Law No. 1, established constructive notice of a hazardous lead condition by requiring the owners of multiple-dwelling units to remove or cover any lead-based paint in units inhabited by children six years of age or younger.  While on its face, it appears that the law eased the plaintiff’s burden to establish defendant’s constructive notice as set forth in by the well-established Chapman factors, this case should only apply to New York City cases that arose while Local Law No. 1 (1982) was in effect.   While I am sure some upstate plaintiff’s counsel will try to apply this “new” standard outside NYC, it should have no bearing on upstate New York claims.



Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]



Dear Readers:


You may think that after covering all of these dog bite cases, I would be forever afraid of getting one myself. However, this weekend I threw caution --and probably all my future paychecks-- to the wind and I adopted a puppy! He is a lovely 9 week old rescue that we named Remy.  They tell us his mother was an Akbash and his father is believed to be an Anatolian Shepherd.  If you know anything about these two breeds, they are HUGE!  Both breeds have expected weights between 90 and 140 lbs.  That is a lot of dog food.  Luckily, he appears to be a runt.  I will keep you posted on his growth and how many pairs of shoes have been sacrificed to his teething phase.


In other news, the Courts have rendered their decision on a few really interesting cases.  I extended my coverage to cases involving lifeguards because it flowed naturally from our discussion of pools.  In this instance, New York State was sued following personal injuries sustained after a person went swimming in the ocean.  The Court held that New York did not have a responsibility to warn swimmers of threats arising from the natural condition of the ocean floor. That seems entirely reasonable to me. 


I did not completely agree with the Second Department’s holding in Gillardo, at the first reading but I begrudgingly changed my mind.  There the Second Department concluded that defendants could not establish as a matter of law that it was open and obvious that one could not stand on a “floor” crafted from sheetrock.  Now, the reason I didn’t completely agree with the decision is because of the sheetrock’s location.  It was in the attic.  My grandmother had a similar situation in her attic.  It was pretty clear that it was not a floor for walking.  That being said, when you get a court’s decision you have the disadvantage of not having all the facts.  I am sure the Court considered the appearance of the floor, how accessible the area was, and if it was necessary to traverse this section. 


Last, but certainly not least, we have Martinez, who seems to be the most unlucky bloke.  Have you ever read those “News of the Weird” posts where a robber stops to sign up for a contest during his heist? This case sort of reminds me of that.  Here, Plaintiff was shot in the hallway of his apartment building.  He called the police, who were happy to arrest him because of an outstanding warrant.  Then while the guy was being stitched up in the hospital the police went into his apartment looking for the gun wielding intruder.  They didn’t find the assailant, but they did find some questionable substances.  Oye! Okay, did you need all that backstory? Probably not… but it sure is fun.  At the end of the day the Plaintiff sued his landlord for failure to prevent gun toting assailants from shooting up the place.  The Court, having no sympathy for the Plaintiff, decided that since police never caught the shooter there was no evidence he was actually an intruder.  Kind of adds some salt to the gun-shot wound, doesn’t it?


08/23/17          Gallardo v Gilbert 

Appellate Division, Second Department

Plaintiff stepped on “floor” which was a piece of sheetrock, Second Department denied the homeowner’s motion because it was not clear that the dangerous condition was obvious as a matter of law

The plaintiff was injured while performing cleaning services in a home owned by the defendants (the homeowners). As the plaintiff was cleaning the attic, she stepped off a plywood landing and fell through the sheetrock ceiling of the garage below. The plaintiff commenced this action against, among others, the homeowners to recover damages for her injuries. After discovery, the homeowners moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the homeowners' motion, and the Second Department reversed.


Landowners have a duty to maintain their premises in a reasonably safe condition. However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. "While the issue of whether a hazard is . . . open and obvious is generally fact-specific and thus a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence."


Here, the homeowners failed to establish their entitlement to judgment a matter of law, as they failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law. Since the homeowners failed to make the requisite showing, the sufficiency of the plaintiff's papers in opposition need not be considered.


08/23/17          Courtney v State of New York

Appellate Division, Second Department

The State has no duty to warn swimmers of threats arising from natural conditions on the ocean floor.

The claimant allegedly was injured when he struck his head while diving into waves at Jones Beach State Park. The claimant moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the claim, arguing that it had no duty to warn, that it satisfied its general duty to provide adequate supervision of the beach, and that the claimant assumed the risks inherent in swimming in the ocean. The Court of Claims granted the defendant's cross motion and denied the claimant's motion.


Governmental entities owe a duty to "act as a reasonable person in maintaining their property in a reasonably safe condition.” Additionally, there is also a "recognized duty of general supervision,” which must be “adequate.”


Here, defendant established its entitlement to judgment as a matter of law by submitting evidence that it had a sufficient number of experienced and competent lifeguards, who reacted to the situation in accordance with proper procedure. Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of “natural, transitory conditions of the ocean floor.”


08/23/17          Martinez v City of New York

Appellate Division, Second Department

Plaintiff can only recover against a landlord for injuries sustained following an assault from an intruder.

The plaintiff was shot in the leg by an unknown assailant in the hallway of his apartment building, which was owned by the defendant New York City Housing Authority (NYCHA). Plaintiff was transported to the hospital.  Adding insult to injury, the Police realized there was an outstanding warrant for his arrest.  Unfortunately for Plaintiff the fun didn’t stop there.  Police, who had been looking through Plaintiff’s apartment for the shooter, found what was believed to be drug paraphernalia. Notably, all the lab tests came back negative for drugs.


The plaintiff commenced this action against NYCHA and the City of New York, for negligence for failing to provide a properly functioning lock on the rear door of the apartment building where he was shot and in failing to secure the premises from intruders.


NYCHA moved for summary judgment on the ground that the plaintiff was unable to prove that its alleged negligence was a proximate cause of his injuries. NYCHA also contested the plaintiff's assertion that the door lock was not operating properly on the date of the incident.


NYCHA relied on the testimony of the subject building's caretaker and recent inspections prior to the incident.  Additionally, the plaintiff testified that he did not know the condition of the rear door lock.


In premises security cases it is necessary to have a causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries. The link can be established only if the assailant gained access to the premises through a negligently maintained entrance. Notably, plaintiffs can recover only if the assailant was an intruder"


Here, NYCHA met its burden by submitting evidence that the rear door lock was operable and not broken and by demonstrating that the assailant's identity remains unknown – and therefore was not necessarily an intruder. In opposition the plaintiff failed to raise a an issue of fact.


Significantly, since NYCHA, and not the City, is the owner of the building where the shooting took place, the City could not be held liable under the same theory as that advanced against NYCHA.


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

By: Anastasia M. Stumpf [email protected]


Dear Readers,

Now that school is back in session, it seems fitting that this month’s cases read like law school final exam questions.  When I was a student first learning about the law’s evidentiary and procedural rules, I recall feeling as if I was playing a new board game without ever having read the rules—it was frustrating, disheartening, and sometimes downright circular.  This month’s cases not only highlight how much of a law-nerd I am, but also how a thorough understanding of civil procedure can cut directly to the heart of a case without a jury hearing any of the facts.  The first case, for example, deals with the consequences of failing to properly comply with a municipality’s written notice law; the second, deals with a federal court’s power to decide cases involving the allegedly negligent actions of the employees of a federal agency. 


08/30/2017      Morreale v. Town of Smithtown

Appellate Division, Second Department

Town’s failure to remove snow was a passive omission, not an affirmative act that would otherwise excuse Plaintiff’s failure to comply with the municipality’s prior written notice requirement.

Plaintiff, who was walking her dog in a public park, slipped and fell on an icy sidewalk.  After bringing suit against the park’s owner, the Town of Smithtown, the Town successfully moved for summary judgment by arguing that, pursuant to its written notice law, it could not be liable where it had not received the requisite prior, written notice of the alleged defect or dangerous condition.  On appeal, the Second Department reiterated the general rule that “[a] municipality [that] has enacted a prior written notice law, [may] not be subjected to liability for injuries caused by a defect or dangerous condition which comes within the ambit of the law unless it received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies.”  Recognized exceptions to prior written notice laws were noted to include situations where the defendant-municipality actually created the hazard through some affirmative, negligent act or where a special use confers a special benefit upon the municipality.  In the case then at-bar, the Second Department held that the Town’s failure to remove snow or ice from the area where the Plaintiff fell was a passive omission, not an affirmative act of negligence qualifying as an exception from the Town’s prior written notice law.  Instead, because the Town had not received prior, written notice of a hazard or defect, and because the Town had not affirmatively created the hazard, it could not bear any liability.


08/15/17          Farley v. United States

United States District Court Western District of New York

The Court did not have subject-matter jurisdiction where Defendant, the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), established application of the discretionary-function exception to the Federal Tort Claims Act.

This is a complicated one, so bear with me.  Mr. Farley, a security officer employed by Asset Protection & Security, initiated suit after he was assaulted by a detainee at the Buffalo Federal Detention Facility in Batavia, New York.  Under a contract with Immigration and Customs Enforcement, a federal law enforcement agency affiliated with the Department of Homeland Security, Asset Protection provided unarmed custody officer services at the facility.  While Asset Protection officers were generally responsible for maintaining order and protecting the health and well-being of detainees,  ICE maintained a presence in the facility as well, retaining decision-making authority over detainee security classifications, detainee housing decisions, and the dissemination of certain detainee information.  The incident occurred during the course, and within the scope of, Mr. Farley’s job as a security officer. 


When the detainee who assaulted Mr. Farley first arrived at the facility, ICE classified him as a “Level 3” (the highest security level) because of a prior domestic assault conviction as well as a history of mental health issues.  Given the Level 3 designation, the detainee was dressed in a red uniform and placed in a special, segregated housing unit.  Although there was no documentation of any direct threats uttered by the detainee, it was after a number of disciplinary issues, and a stint in the facility’s segregated housing unit, that the detainee at-issue assaulted Mr. Farley, causing a broken nose, a neck injury, and permanent traumatic brain injury.


In filing his lawsuit, Mr. Farley argued, pursuant to the Federal Tort Claims Act, that Defendant, more specifically ICE, negligently operated the detention facility and ultimately caused his injuries.  In response, the Defendant argued that the Court did not have subject matter jurisdiction over the Plaintiffs’ claims because an exception to the Federal Tort Claims Act applied.


A court may not hear a case unless it has the authority to make decisions about the subject-matter underlying the case.  Federal district courts, for example, cannot exercise any authority over a case unless there is a statutory or constitutional basis for the court’s jurisdiction.  Where the defendant is the United States government, the Court must have specific authority to hear a case because the federal government is generally shielded from liability by the principle of sovereign immunity, which is a legal principle generally holding that a government cannot be sued without its consent.  To proceed against a federal defendant, the courts generally have no authority (or, rather, the courts lack subject-matter jurisdiction), unless a governmental waiver, like the Federal Tort Claims Act, exists.


The Federal Tort Claims Act evinces the narrow circumstances in which the federal government is willing to waive its immunity and be sued.  More particularly, the Act allows civil actions for money damages to proceed “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”  Despite this seemingly broad waiver of the government’s sovereign immunity, Congress has also carved out a number of exceptions.  The government will not be liable, for example, for the negligence of independent contractors like Asset Protection, nor will it be liable the discretionary-function exception applies.


The discretionary-function exception prohibits lawsuits against the federal government that are “based upon an act or omission of an employee…exercising due care, in the execution of a statute or regulation, whether or not such state statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abuse.”   To determine whether the discretionary-function exception applies, Courts will apply the Berkovitz-Gaubert test, which holds that the United States will remain immune from suit “if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in that they involve an ‘element of judgment or choice’ and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis.”   The first prong is intended to determine whether the allegedly negligent act violated a mandatory regulation or policy that allowed the governmental actor no room to exercise her own judgment or choice.  The requirement of judgment or choice cannot, for example, be fulfilled where the actor was compelled by a statute, regulation, or policy that specifically prescribed a course of action to be followed.  The second prong then requires the court to determine whether the employee’s judgment involved any policy considerations.  The focus of the second prong is on the nature of the actions taken and whether those actions are susceptible to a policy analysis.


In Mr. Farley’s case, the Court determined that Plaintiffs were really advancing three different types of negligence—first, that ICE was negligent in failing to disseminate information regarding the detainee’s violent propensities; second, that ICE negligently released the detainee from the segregated housing unit; and third, a negligent guard theory (i.e. negligence arising from lack of proper care while implementing or designing an official policy and/or from individual “carelessness, laziness, and inattention”).  The Court then went on to assess whether the discretionary-function exception applied to each type of negligence.  After finding that the negligent guard theory did not apply at all, the Court found, that the actions taken by ICE employees satisfied both prongs of the discretionary-function exception, thereby restoring the government’s immunity and leaving the court without jurisdiction to decide the case. 


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


September means back to school!  While it has been some time since I had homework or needed to cram for a test, the crispness of the air always seems to signal a back to school attitude in the legal profession.  Cases which have sat dormant rumble to life, plaintiffs’ attorneys having returned from their vacations, and the Courts begin issuing decisions at a higher rate of speed.  While this will undoubtedly lead us to more elevator and escalator decisions in cases soon, I did not locate any decisions which have come out in the last month which I believed were worth reporting to you.  This issue will feature elevator cases from earlier in 2017 that are worth reviewing, but without a common theme as we have had previously.  Some of this month’s cases range into products liability and labor law territory, but involve alleged injuries with elevators.


Also, by way of a personal update, I write this article after completing my stretching routine and spending some quality time with my foam roller.  I completed my first ever 70.3 Ironman triathlon in Lake Placid on Sunday, September 10.  The race was a 1.2 mile swim, followed by a 56 mile bike ride and then capped with a 13.1 mile run, a half marathon.  While I had a good swim and a great bike, my run fell apart about halfway through, as I struggled with cramping calf muscles.  Lots of walking followed, but I was able to finish the race in 6 hours and 24 minutes.  I also had great support on the course, from my wife, friends and family and just friendly and familiar faces from town.  On the run course, when I needed the exhortations the most, I was blessed to have lots of Lake Placid locals cheering me on – it made it a true home race for me!  A nice small town benefit!


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


03/15/17          Versace v. 1540 Broadway L.P.

Appellate Division, First Department

Defendants’ Motion to Dismiss Successful Except for Potentially Defective Shim and Failure to Warn Causes of Action

Plaintiff, an elevator mechanic, was allegedly hurt when an elevator that he had been tasked to repair suddenly dropped with him inside.  This incident allegedly occurred because a defective shim had caused the guide shoe to crack and because of the failure of a low pressure switch.   A “shim” in this case was a piece bolted between the guide shoes and the elevator cab to create a snug fit between the guide shoes and elevator cab.  Defendants provided evidence that the low pressure switch and the shim were not defective because of two inspections by the City of New York, including after it was returned to service after having been repaired, and showing that the low pressure switch was tested every two years by the city.  The plaintiff failed to raise a fact issue as regards the defective low pressure switch.

However, plaintiff did raise an issue of fact as regards the potentially defective shim and whether there was a failure to warn.  Plaintiff’s expert stated that a cracked shoe caused the elevator car to get wedged in the hoistway, which matched what plaintiff described as what had occurred.  This opinion was corroborated by an engineer for the defendant, who testified that in the design of the elevator, the car could come out of the rails if the guide shoe cracked while the elevator was descending.  The engineer also indicated that a similar guide shoe had cracked because of over tightening of the bolts and the shim had been redesigned, but customers had not been told. 


Plaintiff’s labor law claims pursuant to Labor Law 240(1) were dismissed because any securing device would have defeated the purpose of the plaintiff’s work in riding in the elevator. 


05/11/17          Vilella v. Witkoff Group, LLC

Appellate Division, First Department

Plaintiff’s Complaint Dismissed on Theory of Liability Which Amounted to Constructive Failure to Discover Defect

The plaintiff was injured when he was inspecting an elevator in defendants’ building.  The governor cable of the elevator snapped and hit the plaintiff. The work ticket summaries for the elevator for at least six months prior to the accident did not indicate any issues with the governor cable, a fact conceded by the plaintiff.  The Court found the plaintiff’s position, that the presumed defect in the governor cable should have been discovered, despite the work ticket summaries and the lack of complaints of the governor cable, too speculative to meet his burden. 


The First Department unanimously reversed the trial court’s decision denying the motion and granted the defendants’ motion, dismissing the complaint.


04/26/17           Esquivel v. 2707 Creston Realty, LLC

Appellate Division, Second Department

Fall in Elevator Motor Room Leads to Mixed Bag for Defendants on Appeal

Plaintiff’s decedent was an elevator mechanic working in a residential building owned by the defendants.  Working in the elevator motor room, he accessed the room via its only method of entry – a fixed, permanent ladder.  He began to descend the ladder when he slipped off of one of the metal rungs, causing him to fall and become injured.  Plaintiff move for summary judgment on the Labor Law 240(1) cause of action and defendant cross moved for to dismissed causes of action based on Labor Law 200 and 240(1) and common law negligence. 


The Second Department found that defendant’s cross motion for summary judgment was properly denied.  The defendant failed to establish prima facie that the plaintiff’s decedent was not involved in a covered activity when injured. The Court noted that the work repairing a malfunctioning elevator car supported plaintiff’s allegations along these lines.  The ladder here was also a safety device under the Labor Law as well.


The Appellate Division also found that defendants were entitled to summary judgment on the Labor Law 200 and common law negligence claims, as there was no evidence they had created the allegedly dangerous condition, or had actual or constructive notice.  Plaintiff failed to raise a triable issue of fact. 



Newsletter Sign Up