Premises Pointers - Volume I, No. 5

Premises Pointers
Watch your step!


Volume I, No. 5

Sunday, October 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




Hello!  While Fall is well underway, you wouldn’t know it with the weather here in Western New York.   We have had more summer like days in recent weeks than we did during the summer, but few are complaining!  A favorite Fall activity in my family is apple picking, which we were finally able to do on Saturday.  I will note though there were many warnings and disclaimers, such as “pick at your own risk”, “no climbing” though there were ladders in the orchard and “we are not responsible for injuries.”  I can report that my 9 year old, who did not exactly follow the “no climbing” rule, emerged from the orchard in one piece.  The result:  one homemade apple pie (pictured below)…


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Now onto legal matters, the Courts have gotten busy again and the pace will continue to pick up from here.  In fact, I am scheduled to appear before the Fourth Department next month on an interesting primary assumption of risk case.  This month, in addition to reporting on apple pie, on the retail and hospitality front, we have some interesting cases out of the Southern and Eastern Districts of New York involving a retailer and two hotels.  The retail case is against Costco based on claims of misleading labeling and unjust enrichment.  Regarding the hotel cases, one stems from an assault of a hotel guest and raises issues of jurisdiction and the other arising out of a slip and fall at an island resort in a forum non conveniens argument.  And to round out the column, we have one restaurant case involving the recurrent theme of constructive notice.


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.



Hurwitz & Fine, P.C.


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Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


09/20/2017       Lombardo v. Kimco Central Islip Venture, LLC

Appellate Division, Second Department

Summary judgment motion in slip and fall case denied to restaurant

Here is another example of a defendant failing to meet its burden on the issue of constructive notice.  The plaintiff allegedly fell on a wet slippery substance located on the floor of a Carrabba’s restaurant.  The defendant offered the testimony of its manager who was able to describe the general cleaning procedures, but who could not testify as to when the area in question was last inspected.  The Court reiterated the following:  “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.”

Practice point:  In premises liability cases, evidence of general cleaning procedures is not enough on summary judgment.  This is continually emphasized by courts.


09/25/2017       Eidelman v. The Sun Products Corp. and Costco

United States District Court, Southern District of New York

A negligent misrepresentation claim against laundry detergent company for an allegedly deceptive label was dismissed, while an unjust enrichment claim against retailer Costco was allowed to proceed in a potential class action lawsuit

Plaintiff brought this proposed class action lawsuit against retailer Costco and The Sun Products Corp. laundry detergent brand for negligent misrepresentation, violations of New York’s General business Law §§ 349 and 350 and unjust enrichment.  The plaintiff went to Costco in search of a laundry detergent free from any “irritant chemical ingredients” as recommended by his dermatologist.  Based on labeling, the plaintiff selected a detergent, which said “from the #1 Detergent Brand Recommended by Dermatologists for Sensitive Skin” with the words “from the” in a barely readable print.  Plaintiff also alleges the detergent contains known skin irritants, but that the bottle itself did not contain an ingredient list, nor were the ingredients readily available online.  Defendants filed a 12(b)(6) motion to dismiss.  The inquiry under 12(b)(6) is “whether the complaint contains sufficient factual matter, accepted as true, to states a claim to relief that is plausible on its face.”  A plaintiff asserting a cause of action under Section 349 “must [demonstrate] three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.”  The standard for recovery under New York General Business Law § 350 is identical to that of Section 349, with the caveat that it is specific to false advertising. The Court noted that whether a representation or omission is deceptive depends upon the likelihood that it will “mislead a reasonable consumer acting reasonably under the circumstances.”   In denying defendants’ motion to dismiss, the Could explained  “even assuming the entire text of the Label is fully visible and easily read, the Court cannot conclude as a matter of law that no reasonable consumer on this motion to dismiss, that no reasonable consumer could be misled into believing that the Label indicates that both the brand, and in turn, the brand product bearing the actual Label, are recommended by dermatologists for sensitive skin. The Court also found that Plaintiff had plausibly alleged a claim for unjust enrichment against defendant Costco, but dismissed Plaintiff’s claim for negligent misrepresentation against defendant Sun Products.


09/25/2017       Delorenzo v. Ricketts & Associates, Ltd.

United States District Court, Southern District of New York

Hotel Defendants filed 12(b)(6) motions claiming the Court lacked personal jurisdiction over them with regard to an alleged assault that occurred on the island of Anguilla  - the motion was granted

This plaintiff, who was vacationing on the island of Anguilla, was allegedly assaulted by an employee of a neighboring hotel located next door to the hotel where she was a guest.  She sued both the hotel where was a guest and the hotel that employed the individual who alleged assaulted her.  The action was filed in the Southern District of New York.  Plaintiff claimed that both defendants were subject to the jurisdiction of the Court based on their “interactive website, marketing, solicitation of business” in New York.  In addition, one of the defendants maintained a hotel property in New York.  In her complaint, she alleged claims of negligence, gross negligence, willful and wanton misconduct, as well as negligent infliction of emotional distress.  Both defendants moved for dismissal on the grounds the Court lacked personal jurisdiction over them.  In reviewing their applications, the Court restated New York’s general rules governing jurisdiction, namely that a “non-resident defendant must be “doing business” within New York.  The defendant must be present in New York “not occasionally or casually, but with a fair measure of permanence and continuity.”   Solicitation alone is typically not enough.  However, under the “solicitation plus” theory, “if solicitation is substantial and continual, and defendant engages in other activities of substance in the state, than personal jurisdiction may be found to exist.”  Plaintiff’s primary argument was that one defendant maintained a “highly interactive website.”  In order to prevail under this theory, the subject website must be purposely directed to toward New York, which the Court found was not the case.  The same ruling was issued with regard to the other hotel defendant even though the following ties between the defendant and New York were alleged: (1) defendant’s use of a New York-based public relations firm that did not specifically target New York; (2) the presence of their independent contractor at a single trade show, not to the exclusion of attending other trade shows in other locations; (3) a New York-based travel magazine and New York-based media outlets describing or mentioning the hotel with no evidence of the defendant’s involvement in these media events; and (4) 12.8 percent of reservations in 2015 that came from New York.  The Court determined this was simply not enough to confer jurisdiction.  The Court went on to say that “the mere fact that a website is highly interactive, even to the point of allowing users to make reservations and interact with a foreign hotel, does not itself subject a defendant to general jurisdiction in New York absent proof that the website is purposefully directed toward New York.”


10/05/2017       Brown v. Marriott International, Inc.

United States District Court, Eastern District of New York

Defendant’s 12(b)(6) motion to dismiss for failure to state a claim, or alternatively, on the grounds of forum non conveniens was denied

In our second hotel case, the plaintiff, a New York resident, allegedly slipped and fell on water dripping from an air conditioner at the St. Kitts Marriott Resort.  Here, the Court gave great deference to plaintiff’s choice of forum, particularly because the plaintiff sued in her home forum.   The Court also weighed the private and public interests, including the location and availability of witnesses, the availability of documents and viewing the site of the alleged accident.  Lastly, the Court looked at the parties’ domiciles – New York and Maryland, not St. Kitts – and ruled that New York law should apply to the dispute and not the law of St. Kitt’s.  Upon weighing all factors, the Court denied the motion based on forum non conveniens grounds ruling that the case would remain in New York.


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

By: Todd C. Bushway [email protected]

Dear Readers,


I think we have survived re-entry into the school year. My son, who is a sophomore, continues his rowing career.  Depending on the weather and how the boats are set up, some of the practices are at 6:00 AM.  Thank god my wife is an early riser (and that we live 10-15 minutes from the boathouse).  I’m not sure how well my 16 year old self would have fared, or what my parents would have thought, since that drive would have taken them 30-40 minutes.  The start of the school year has also been a bit bittersweet, since this is my daughter’s senior year of high school.  She attends a catholic school that begins with a Montessori program at age 3 and continues through high school, making this her 15th year of school at the same place.  Every class always has a few kids that hit the full 15 years – her class has 6.  I’ve suggested to the school’s president that, if your kid makes it the full 15 years, the last year should be tuition free.  That was quickly and emphatically dismissed.


For you music lovers out there, recent announcements have added a bunch of good shows to the calendar, at least here in Western New York.  For those of you elsewhere, imagine a deep, booming announcer voice telling you to “check your local listings for the shows in your area”  Craig Finn, Waxahatchee, Lowest of the Low, with Jesse Malin, Reverend Horton Heat, with The Blasters, Bob Dylan and Jason Isbell, with James McMurtry opening are the highlights.  For those of you who like your music recorded, I highly recommend the Replacements Live at Maxwells, 1986 and Ted Leo’s The Hanged Man. The mellower Craig Finn’s We All Want the Same Things is also pretty good.  Finn is better known as the front man for the Hold Steady, and, as to be expected by those familiar with his prior work, the guy’s got a lot to say.  The Replacements’ disc captures a terrific show and highlights the band at what many consider their peak.  For years, bootleg recordings of the show had drifted around – this release was produced from the soundboard recording.  Very cool stuff.


On to the cases.  There are several Notice of Claim cases of interest.  These include cases reviewing Petitions to serve a late Notice of Claim and decisions that highlight how the Notice of Claim time limits serve as a jurisdictional predicate. The cases break no new ground, but the cases serve as good reminders of how the courts are viewing those cases and what the focus is when deciding whether to allow that case to proceed.  We also highlight a case addressing a municipal entity’s obligations as a landowner and a fun case from the Civil Court for the City of New York, Richmond County, which looks at the application of leash laws, and is written by a judge who took the time to weave into his opinion a series of animal references from movies, music and television.


09/27/2017       In re McClancy v. Plainedge Union Free School District

Appellate Division, Second Department

The Court examines the sufficiency of a notice and balances other factors.

The infant plaintiff, a 1st grade student, sustained a cut and bruise on his face when he fell from a playground slide during the school day.  A “Notice of Injury” form was prepared by the District and, two months after the accident, was signed by the student’s parent.  The form simply indicated that the incident occurred and that the plaintiff has sustained the laceration and bruise.


Five months after the accident (approximately 60 days after the 90 day time limit), the student’s parents sought leave to file a late Notice of Claim.  As part of their application, the parents argued that the Notice of Injury form gave the District sufficient notice of their claims that the school had negligently supervised the playground and negligently hired and trained school personnel.

The Court, however, held that the form simply recorded the occurrence and did not address any potential causes.  As such, the form did not provide the District with notice of the specific claims plaintiffs now sought to pursue.  More importantly, because of the lack of notice, the school had no reason to conduct a prompt investigation of the purported negligence.

The Court goes on to highlight a fairly significant point (at least in my book)—petitioners met their burden of showing a lack of prejudice to the School District by the delay in filing the Notice of Claim.  However, the Court went on to note that the absence, or presence, of one factor alone is not determinative.  Instead, the Court must balance all relevant factors.  In this case, a balancing of the factors meant that the application should have been denied.  The Court did not reveal what weight it gave to the various factors in reaching its conclusion, nor how it overcame the determination that the District was not prejudiced by the two month delay. 

09/12/2017       Lockwood v. City of Yonkers

New York State Supreme Court, Westchester County

Proof of notice to the municipal entity supports an application to serve a late Notice of Claim.

Plaintiff was a city firefighter injured on duty.   Specifically, the accident occurred during a training exercise where plaintiff was required to exit through a second story window.  Plaintiff fell to the concrete ground below, despite the fact that he was wearing a harness, because safety mats that were supposed to be placed below the window were missing.


Following the incident, a “Medical Leave Report” was prepared by the fire department.  That report notes that date, time, location of the incident, and the injuries sustained, as well as a statement from the officer in charge that he observed the petitioner fall while performing the specific training exercise.


Petitioner filed his application to serve a late Notice of Claim 53 days after the 90 day period to timely file expired.  The City opposed the motion, arguing the injury report did not give it notice of the actual allegation of wrongdoing and that instead, it merely recorded the occurrence.


The Court allowed the late Notice, noting that the injured firefighter filed an application for disability benefits several days after the accident and that this application contained a specific description of what occurred and how the petitioner was injured.  The Court then held that, reading the two documents together, the City had knowledge of the “essential facts constituting the claim.” The Court also noted that actual notice is a key component in determining whether the respondent was prejudiced by the late filing and that there was no evidence in the record demonstrating such prejudice.


10/03/2017                     Ayers v. Mohan             

Appellate Division, First Department

Failure to timely file a Notice of Claim is fatal.

Plaintiff, an inmate in a county jail, claimed that he was injured, in part, because of medical services he received while in jail.  The County contracted with a vendor to provide medical services at the jail.  Among the defendants sued was a doctor who provided treatment to the plaintiff.  This doctor was actually employed by the medical services vender. Multiple motions for summary judgment were filed, including one by the doctor, who argued that, because no Notice of Claim had been served upon him, the claims against him must be dismissed.  The Appellate Court agreed.  General Municipal §50-d requires a municipal entity to indemnify any health care providers retained to provide health services to persons in the care and control of the governmental entity (so long as the provider does not receive any remuneration from the person receiving the services).  The doctor in question met the requirements of §50-d and was entitled to indemnification from the County.  §50-d also required that a Notice of Claim be timely filed and served upon the doctor pursuant to General Municipal Law §50-e.  Since no Notice of Claim was filed against the County or the doctor, the claim against the doctor was dismissed.


09/26/2017       Lozano v. City of New York Housing Authority

Appellate Division, First Department

Failure to seek leave to serve a Late Notice of Claim within one year and ninety days.

Plaintiff sought to bring a claim against the Housing Authority and served his Notice of Claim more than one year and ninety days from the date of the incident.  He did not, however, seek leave to serve that Notice of Claim before actually serving the Housing Authority.  At some point, the Housing Authority conducted an examination pursuant to General Municipal Law §50-h (when this occurred is not clear, as there is also reference to another Notice of Claim that may have been mailed to the defendant at some point before the application to serve the late Notice).  When the plaintiff subsequently filed his Summons and Complaint, the Housing authority raised the statute of limitations as a defense and moved to dismiss the action.


The Court held:


  1. That because the application to serve the late Notice was made after one year and ninety days had passed, the lower Court lacked the jurisdiction to entertain the motion;
  2. that conducting the§50-h exam, as well as other unidentified litigation activities, did not change the decision; and
  3. that the defendant’s failure to include an affirmative defense related to the Notice of Claim did not preclude raising the statute of limitations as a defense.  One of the decisions cited by the Court as authority for this point states that a timely filed Notice of Claim is a jurisdictional condition precedent, which a defendant is not required to raise as an affirmative defense.


08/23/2017       Courtney v. State

Appellate Division, Second Department

A governmental entity’s responsibility as a landowner.

Plaintiff was injured when he struck his head on the ocean floor while diving into waves at a state owned beach.  In suing the State, he alleged that the State negligently allowed the area to exist in a dangerous condition and failed to provide adequate supervision to beachgoers.  The state then moved for summary judgment. The Appellate Division affirmed the lower Court’s granting of the motion. 

First, the Second Department noted that, in maintaining its property, a governmental entity is held to the same reasonable-person standard as anyone else.  Moreover, the State’s duty extends beyond mere physical maintenance and includes a duty to generally supervise as well.  In affirming the lower Court’s dismissal of the claim, the Court highlighted the State’s submission of proof, which established that it had staffed the beach with the appropriate number of properly trained lifeguards who reacted appropriately to plaintiff’s accident. The Court also found that the plaintiff did not submit any proof to rebut defendant’s showing.  Interestingly, there is no description of what proof the State actually submitted, including how it established that the staffing, training and response were appropriate.

The court also noted that the State had no duty to warn swimmers of “threats arising from the existence of natural, transitory conditions on the ocean floor.”  Although not expressly written in the decision, I take this language to mean that, whatever the claimant hit while underwater, was not some sort of permanent, known condition that one could argue the State either knew, or should have known, about.

09/28/2017       Medina v. Romanofsky

Civil Court for City of New York, Richmond County


This case is in an appeal from a small claims action for damages resulting from one dog leaving its yard to attack another dog, on the sidewalk in front of a house.  The victim of this heinous crime was walking with its owner at the time of the incident and, although it required veterinary treatment, it ultimately survived.  In this case, the defendant’s yard was not fully fenced and his dog was not controlled (established by the fact that he got free and left the yard to attack plaintiff’s dog), placing the defendant in violation of the City’s leash law.  Both parties appeared pro se.

The decision sets forth a nice explanation of the mechanics of the leash law, including how and when an animal owner can be held liable for the actions of his or her animal.  But that’s not why we mention the case here. 

We highlight the case because the Hon. Philip S. Straniere is our new hero. The very first line of the decision is “Who let the dogs out? Who, who, who, who?” taken from the Baha Men’s 2000 hit, Who Let the Dogs Out.

The judge takes what is surely a mundane small claims action and weaves into his written decision a series of fun cultural references.  Besides the opening line, highlights from the decision include:

  • If the person making this inquiry is seeking to impose liability for letting the dogs out, it will depend on if the “doggie” is the cute one with the “waggly tail” that so enamored Patti Page, or if it is a “doggie” in a herd under the watchful eye of a lonesome cowpoke being urged to “git along” by everyone from Woody Guthrie to Roy Rogers.
  • But as noted in Kander & Ebb's musical “Chicago” regarding the character “Mary Sunshine,” “things often aren't as they appear to be.”
  • So, in New York City, if Ferdinand the Bull, leaves the cork tree he was sitting under, knocks over a flower delivery-person in the bicycle lane, a negligence action would lie. But if Rusty B Company yells “Yo Rinny” and the flower deliverer is knocked down by the dog, litigation will only be entertained if Rin Tin Tin has vicious propensities.
  • [S]hould Bill Sikes dog, “Bull's Eye” escape from the stage door of “Oliver,” run to “Pippin” and attack Theo's duck-Sikes would be liable; likewise if Bull's Eye takes a nip out of Louise's lamb backstage at “Gypsy,”—Sikes again would be at fault; but if Bull's Eye injures Sandy during “Annie,”—there would be no liability even if Sandy's owner, Bill Berloni suffered loss of income because Sandy's understudy would have to go on.
  • Perhaps the majority on the Court of Appeals had just watched the DVDs of the Complete Lassie Collection and did not want to hold the owner of any dog liable, especially potentially one like Lassie who pulled Timmy out of so many scrapes; or maybe they were so traumatized by the death of Old Yeller they couldn't even think of punishing a dog or its owner; or so impressed by the good Balto did, and he was half-wolf, to impose fault on an owner.


  • “Who Let the Dogs Out” by the Baha Men allegedly as nothing to do with canines. However, because I have not been able to understand the lyrics to any song written since the Fillmore East closed, I have appropriated the title solely to make a point and will ignore the content of the song.

Great stuff.

Toxic Exposures

By: V. Christopher Potenza [email protected]


Dear Readers,

Writing this column from the lovely town of Horseheads in New York’s Southern Tier, wedged in between Corning and Elmira.  Elmira is famous as the summer home of Mark Twain.  Didn’t he say the coldest winter he ever spent was a summer in Elmira?  But, what is interesting about Horseheads?  Well, the origin of its name for one thing.   In the fall of 1779, American Revolutionary War General, John Sullivan, marched his troops some 450 miles north from eastern Pennsylvania up to the New York Finger Lakes Region to combat loyalists and their Iroquois allies.   The trip was rather arduous and they were forced to dispose of quite a large number of their sick and disabled horses.  The native Iroquois subsequently collected the skulls and arranged them in a line along the trail, referring to this land as the "Valley of the Horses' Heads."

This little trivia lesson is the result of a paucity of toxic tort cases this month.  Just one interesting decision in which the First Department limits the foreseeability defense of an asbestos containing product.

9/26/2017         All Craft Fabricators, Inc. v. ATC Associates, Inc., et al.

Appellate Division, First Department

First Department finds that defendant did not meet its burden in demonstrating that use of asbestos containing product was not foreseeable.

In 2015, the First Department issued a rather surprising decision in Hockler v William Powell Co., dismissing a plaintiff’s asbestos claim and holding that the salvaging of old asbestos containing valves for scrap metal was not a foreseeable use of the product that would trigger the manufacturer’s duty to warn.  Well, the 1st Department has put the brakes on that decision in this case, which involves the re-sizing of wood laminate doors with asbestos-containing core (and resulted in the creation of asbestos dust).  Ultimately, the Court found that the defendant, in moving for summary judgment, failed to establish its prima facie burden because defendant pointed to no testimony, expert or lay, indicating that it was foreseeable that the doors, including their cores, would be cut and used as paneling.  While “foreseeable use” may seem like a common-sense argument, the Court now appears to require some opinion evidence to support the conclusion that a product’s use was not foreseeable.



Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers:


This month the good people of New York have presented us with a theme.  To be fair, I might have had to dig back into the 90’s to fully flesh out this topic.  Nonetheless, the theme is: don’t take shortcuts… especially when you are near a firehouse.  If you search the internet you can find a host of inspiring quotes and stories telling you that the way to succeed is to put your nose to the grind stone and never ever cut corners.  The stories I have for you today are less inspirational and a whole lot more intoxicated.


In our first case, we have a man that is hell bent on making poor life choices.  He commenced his day with copious amounts of beer, pushed his girlfriend, continued drinking and wound up climbing a radio tower at the local firehouse.  He alleged he was taking the shortcut home and climbed the tower “because it was there.” Unfortunately his ascent into radio did not go unnoticed.  The fire department, conveniently located on the premises, was already on the scene.  Plaintiff, perhaps sobering up—or more likely experiencing performance anxiety—got nervous and “jumped” from a significant height and hurt himself.  He obviously felt that this whole event was not his fault and sued the county for failing to warn him that climbing, and jumping off the radio tower was dangerous.  As you can imagine, the Court was not impressed.


Next up, we have a Plaintiff that went to a party- vodka and orange juice in hand- at a fire house.  He made the responsible choice that he was not able to drive and asked a friend to escort him home. They all proceeded to the rear parking lot, only to find the car was parked in front of the firehouse.  Instead of walking back through the building they tried to navigate a sloped, patch of shrubbery.  As you can imagine it didn’t go well.  The Court found that it was not foreseeable that a person would walk this path and defendants were not held liable.


Finally, we have a man taking a short cut across a train track after visiting his local drinking establishment. Unfortunately, he lost his legs after the train he was climbing over started moving and threw him onto the tracks.  The Court determined that it was for the jury to decide whether the property owner had a duty to fence off the area as it was well known that the tracks were used as a short cut. 


The take away?  Foreseeability. And perhaps “don’t take shortcuts after drinking?”


Have a wonderful week,





05/22/1996       Babcock v. County of Oswego

Supreme Court, Oswego County

Defendant successfully demonstrated that Plaintiff’s chosen route of travel was unforeseeable, and as such Defendant did not have a duty to Plaintiff.

Plaintiff spent the day drinking beer with friends. A domestic squabble ensued and plaintiff left in anger at approximately 11:30 p.m. after his girlfriend declared her intent to call the police. Plaintiff continued to make good decisions and went to the tavern having enough he then departed to walk to his sister's home. The route, which he had traveled many times, took him through the parking lot at the East Side Fire Station and past the subject radio tower on the property. 


He then decided to climb the tower “because he was “mad and upset” over his fight with his girlfriend, because he believed the police were after him, and “because it was there”. He testified that he climbed the tower “the hard way”, by scooting up through the four-inch cross bracing, walking up one diagonal brace until he could reach the angle above him and then pulling himself up to the next higher brace, stopping at intervals to rest. By this method, plaintiff reached the approximate height of 100 feet.  Around that time he got tired and panicked. He decended approximately 15 feet and then jumped down to the ground sustaining personal injuries.  Plaintiff figured none of this was his fault and sued because the county had not erected a fence.


The Court rightly held that the defendant had no duty to warn persons of the danger of falling from the radio tower. The danger posed to unauthorized persons undertaking to climb the tower is open and obvious to anyone.


07/13/2017       Kirby v Summitville Fire Dist

Appellate Division, Third Department

Defendant successfully demonstrated that Plaintiff’s chosen route of travel was unforeseeable, and as such Defendant did not have a duty to Plaintiff.

On December 15, 2012, plaintiff attended a holiday party held at a firehouse. Plaintiff brought with him a bottle of vodka and a bottle of grapefruit juice in his pickup truck so that he would have something to drink at the party. According to plaintiff, he had one mixed drink at his house prior to leaving for the party and mixed one additional drink after arriving at the firehouse.

At some point during the evening, plaintiff and a friend, Walter Finkle, came to the conclusion that plaintiff was in no condition to drive home. Plaintiff, Finkle and Finkle's spouse all exited the rear of the firehouse—intending that Finkle would drive plaintiff's pickup and Finkle's spouse would follow in their car. When Finkle realized that plaintiff's vehicle was parked in front of the firehouse, Finkle and plaintiff—instead of reentering the firehouse, walking through the building's interior and exiting via the front door—started around the side of the firehouse and down the side of the building. According to plaintiff, they chose this direction of travel because Finkle said, "Let's go around the side, it's easier." While walking toward the front of the building, plaintiff allegedly stepped on a piece of black PVC pipe, causing him to slip and fall down an embankment.

The Court noted, "A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition.” To that end, "the scope of a landowner's duty is measured in terms of foreseeability.” Because "[t]he risk reasonably to be perceived defines the duty to be obeyed", the issue is then whether it was foreseeable that plaintiff, despite being provided with established avenues would instead exit the rear of the structure at night and traverse a sloped, unlit strip of land—located between the firehouse and a row of trees/shrubbery—in order to reach the front parking lot of the firehouse and retrieve his vehicle.

The Court found that Plaintiff’s chosen route was not reasonably forseeable. The Court further stated that “[a]lthough plaintiff asserts in a conclusory fashion that the subject strip of land "was regularly used as a path from one parking lot [at the firehouse] to the other," the record as a whole is devoid of proof to substantiate this claim.”

08/16/2017       Rhinehart V CSX Transportation

Western District of New York

Landowner’s duty to erect fencing around train tracks was a question of fact

The Plaintiff, Alfred R. Rhinehart, Jr., sued CSX Transportation, Inc. (“CSX”), after his legs were severed when he was struck by a train while on CSX property. Rhinehard had been crossing the tracks as a shortcut. Rhinehart brought a negligence claim against CSX. To prove negligence under New York law, a plaintiff must demonstrate (1) the existence of a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff proximately resulting from the defendant’s breach of the duty.  CSX argued that the case should be dismissed because it did not have a duty to fence off the tracks.  The Court however, noted that the short cut was well known in the area and CSX should have known that people were crossing over the tracks.  The Western District ultimately decided it was a question for the jury whether CSX had a duty to erect fencing or warnings.  Additionally, this Court rejected CSX’s argument that a landowner’s duty to discourage trespassers is preempted by Congress. 



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

By: Anastasia M. Stumpf [email protected]



Dear Readers,


It’s official, fall has…fallen upon us, and, in the most surreal manner.  Indeed, we are already three losses into the Buffalo Sabres’ season, yet it’s still 70 degrees outside.  Also surreal are this month’s cases.  First, we have a quick article about a local municipality’s recent passage of a new anti-bullying ordinance.  Although the totality of the ordinance’s impact is yet to be felt, it raises a number of questions related to civil liability as well as constitutionality.  Next, we have the Eastern District’s analysis of a motion for sanctions, including a spoliation charge that arose after a Defendant’s security system automatically overwrote irrelevant video footage of the premises from the date of loss.  Lastly, we have a true rarity—a denial of a petition to serve a late Notice of Claim.



Convictions under a new criminal law may ease a plaintiff’s burden of proof in subsequent or simultaneous civil actions.

Last week, the North Tonawanda Common Council made local news when it passed a new, and unusual, anti-bullying law that imposes criminal liability on the parents and guardians of minors who are caught bullying/harassing others, breaking curfew, or illegally consuming alcohol.  Specifically, the new law allows a misbehaving minor’s parents to be fined up to $250 and/or to be sentenced to 15 days in jail per violation. 


North Tonawanda’s new ordinance is unlike any other the region in that it imputes criminal liability to parents and/or guardians whose children or teens violate the City’s curfew or are caught harassing and bullying others.  Under the new law, “bullying” is vaguely defined as “an intentional course of conduct which is reasonably likely to intimidate, emotionally abuse, slander or threaten another person and which serves no legitimate purpose.”  Similarly, “harassment” is defined as “any conduct, whether verbal, physical, written, or by means of any mode of communication, which: (a) is prohibited by NYS Penal Law…; or (b) is any intentional course of conduct which is likely to create an intimidating, hostile or offensive environment, and which serves no legitimate purpose.”  Even more unusual, however, a parent who has received written notice from the police department about his or her child’s prior run-ins with law enforcement, will be presumed to have “allowed or permitted” subsequent violations occurring within 90 days of the written notice.  


Of course, the parents of a bully or intoxicated minor have long been considered proper defendants in civil court for the injuries inflicted by their children. But, North Tonawanda’s new criminal ordinance will now place civil parent-defendants at a unique and heightened disadvantage.  Not only does the law create a rebuttable presumption of a parent’s complicity or want of care, essentially shifting the burden of proof to the parent-defendant, but because a conviction will, in theory, require prosecutors to establish a parent’s guilt beyond a reasonable doubt (as opposed to the lesser standard of preponderance of evidence used in civil court), a criminal conviction could pave the way to heightened liability in a simultaneous or subsequent civil court action.  


09/05/2017       Bouchard v. United States Tennis Association, Inc., et al.

United States District Court, Eastern District of New York

Court refuses request for spoliation charge and monetary sanctions where defendant provided all footage nor could she establish that she was prejudiced by defendant’s refusal.

Bouchard dealt with alleged spoliation of evidence.  As many of you may know, spoliation is the destruction, significant alteration of evidence, or failure to preserve property for another party’s use as evidence in pending, or reasonably foreseeable litigation.  Plaintiff, Eugenie Bouchard initiated a personal injury after she slipped and fell, striking her head on the floor, in the women’s locker room during the 2015 U.S. Open.  In 2017, Plaintiff filed a motion for sanctions, arguing that defendants intentionally destroyed security camera recordings of the night of the accident.  Specifically, Ms. Bouchard asked the Court for punitive monetary sanctions and to provide her eventual jury with an adverse inference jury instruction.


Generally, where a party fails to preserve electronically stored information, the Court may only issue an adverse inference/spoliation instruction if it finds that the accused party acted with the intent to deprive another party of the information’s use.  Even if the Court finds that the accused party did not intend to deprive the moving party of information, the Court may order less severe sanctions if the moving party shows that it was prejudiced by the withholding of information. A less severe sanction must be aimed at placing the prejudiced party back in the position it would have been in had the destruction never occurred.


In Bouchard, the Eastern District found that Plaintiff failed to prove that Defendants intended to deprive her of surveillance footage.  The Court found it particularly persuasive that the Defendants did provide Plaintiff with a video recording of the area immediately outside of the women’s locker room where the accident actually occurred.  Thus, it was entirely reasonable that the Defendants believed their production actually complied with Plaintiff’s original preservation letter seeking a complete “litigation hold” on a number of materials, including surveillance.   In fact, even a complete failure to place a litigation hold on materials in its possession is not considered dispositive evidence of a Defendant’s failure to play with the preservation obligations set forth in a Plaintiff’s preservation letter.


Similarly, the Court found that Plaintiff had not been prejudiced by Defendant’s failure to produce all video surveillance from the subject location.  Ms. Bouchard argued that the additional footage would have been used to establish a timeline leading up to the incident as well as to undermine the testimony of trainer, Eva Scheumann.  The Court, however, determined that Plaintiff was able to establish a time using the video footage that Defendants did disclose and, furthermore, that Ms. Scheumann’s testimony actually supported Plaintiff’s position. 


In light of the Court’s intent and prejudice determination, the Plaintiff’s motion for sanctions was denied.


09/27/2017       Kelly v. City of New York, et al

Appellate Division, Second Department

The Second Department denies application to serve late Notice of Claim upon the New York City Housing Authority where Petitioner failed to explain the delay of service upon the proper party and where notice of the underlying facts received by the City could not also be imputed to the City Housing Authority.

On February 20, 2015, Petitioner slipped and fell on an icy walkway within a housing complex owned by the New York City Housing Authority.  On May 19, 2015, however, Petitioner’s counsel served a Notice of Claim on the City of New York, alleging that the accident occurred on the walkway in front of 12-50 35th Avenue; counsel did not serve a Notice of Claim upon the New York City Housing Authority.  During a later 50-h examination conducted by the City, Petitioner testified that the fall did not actually occur on a public sidewalk, but on a sidewalk within the Ravenwood Housing Complex, which is owned by the NYCHA, and that Petitioner believed he had accurately conveyed this fact to his counsel as early as February 2015, when the original Notice of Claim was served.  Despite this revelation, Petitioner’s counsel did not seek leave to serve the New York City Housing Authority with a late Notice of Claim for another seven months.


In ruling on whether Petitioner should be allowed to proceed with serving a late Notice of Claim on the NYCHA, the Second Department analyzed a number of key factors, including (1) whether the Petitioner had expressed a reasonable excuse for the delay in service; (2) whether the NYCHA had actual knowledge of the essential facts of the underlying claim within the 90 day statutory period, or within a reasonable time thereafter; (3) whether the Petitioner made an excusable error concerning the identity of the public corporation against which the claim should have been asserted; and (4) whether NYCHA would be substantially prejudiced by Petitioner’s delay.


Ultimately, the Court found that Petitioner had not provided a reasonable excuse for his failure to timely serve a Notice of Claim upon the NYCHA—instead, the Court determined that Petitioner’s excuse that he first discovered the true identity of the owner of the subject-sidewalk at the 50-h hearing arose purely from a lack of due diligence in investigating the matter.  Even if Petitioner had, however, posited some excusable error, the Court further determined that he failed to offer an excuse for the additional seven month delay between the time the error was allegedly discovered the filing of the application in the Supreme Court. 


More importantly, the Second Department held that the notice provided to the City by way of Petitioner’s original, improper Notice of Claim and the City’s 50-h examination could not impute knowledge of the essential underlying facts to the NYCHA. 



The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


The weather in Upstate New York in mid-late September and early October this year has been more representative of a regular summer than the wet and cool weather we endured in July and August!  So far, an autumn to remember!  I was in Buffalo for some work commitments in late September and even got to attend a Buffalo Bills home game in shorts and a t-shirt (and witness a win for the Bills) – most Bills home games I have attended previously involved wearing long underwear!  

There have been few developments in the world of elevator and escalator law of late, but a Trial Order on a motion for summary judgment from May of 2017 caught my eye.  It reviews a fact pattern which seems to happen frequently in everyday life with escalators – a person traversing a stopped escalator, either up or down, utilizing the stopped escalator as a staircase.  Invariably, litigious folks trip and fall and try to blame it on someone else. 

This month we will review the Order and some other cases mentioned in the Order with similar fact patterns.  Though some of the cases are not recent (one reviewed is from 2003, for instance), the decisions remain good law and are instructive for dealing with plaintiff’s claims where a fall happens on a nonmoving escalator.  Risers in the escalator stairs are of varied height necessarily near the top and bottom of escalator landings and this change in height has been the alleged cause of falls by plaintiffs.  Is this enough to survive a motion for summary judgment by the defendants?

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


08/14/2003       Schurr v. Port Authority of New York and New Jersey

Appellate Division, First Department

Uneven Spacers on a Stopped Escalator do not Create a Dangerous Condition Alone

The plaintiff was injured when she tripped and fell while descending a stopped escalator.  She claimed that the reason she fell was the uneven spacing of the escalator’s stairs.   Plaintiff testified that she had been using escalators “all her life” and was aware that spacing of stairs varied at the bottom, as they flattened out. 


The Court found that the condition of the stairs of the stopped escalator was open and obvious and that “there is thus no ground to conclude that the risers were not safely traversable in the exercise of ordinary care.”  The difference in stair height would be present in the escalator near the bottom landing whether the escalator was in operation or not, the Court noted.  The Court found the defendants had no further duty to warn for a condition that was not a reasonably foreseeable hazard.


The Court also found that there was no showing the elevator was defective.  Similarly, the Court found that there was no issue of fact that an applicable safety code or building code was violated by permitting pedestrians to utilize a stopped escalator.


Plaintiff’s complaint was dismissed.


03/23/2010       Adamo v. National Railroad Passenger Corp.

Appellate Division, First Department

Uneven Spacers in Steps Not Enough, Even with Expert Affidavit Alleging Code Violations, for Plaintiff to Avoid Dismissal of Claim

Plaintiff was injured when she was ascending stairs on a stopped and stationary elevator at Penn Station.  She testified she tripped and fell as she walked up the stairs and claimed that the difference in stair/riser height was the cause of her fall. 

The only problem with the escalator was that it was in need of a new handrail and since there was not a new handrail available on site, it was left to those utilizing Penn Station to decide whether to use the escalator as a stairway.  The protocol at Penn Station was only to barricade the use of the escalator if it was actually in the process of being worked on by Penn Station personnel.  Notably, the plaintiff admitted that the defective handrail played any part in causing her fall.  The Court, relying on Schurr, noted the similarities in the two cases and stated that there was “no evidence warranting the inference that the stopped escalator posed a reasonably foreseeable hazard to those who, like plaintiff, used it in the manner of a staircase to reach the next floor,” since the “spacing of the stationary escalator risers was open and obvious.”  The plaintiff attempted to distinguish prior authority by providing an expert affidavit which indicated various industry safety standards and fire codes were violated by permitting the escalator to be used in the off position.  The Court found that nothing suggested walking up and down a stopped escalator with uneven risers near the top or bottom creates a dangerous condition.  The Court found that this did not constitute a reasonably foreseeable hazard, with no claim of defectiveness of the stair where the fall occurred, and the case was dismissed.


05/10/2017       Goodwin v. National Railroad Passenger Corporation

Supreme Court, New York County

Summary Judgment Denied when Lighting is Alleged as Issue in Stopped Elevator Case

Plaintiff was injured in a trip and fall accident as he ascended a stopped escalator at Penn Station.  Defendants moved for dismissal of the plaintiff’s complaint, claiming that prior decisions by the Court were binding and applicable precedent here.  In prior decisions, including Schurr and Adamo (as seen above), the Court had found that there was nothing suggested that uneven risers at the top or bottom of the stopped escalator created a dangerous condition, or that the spacing of the stationary escalator risers was open and obvious to “to any observer reasonably using his or her senses.”  The Court noted that if the sole contentions of the plaintiff were the difference in riser heights of the escalator stairs, than the defendants would have been entitled to summary judgment.  However, here, the plaintiff claimed that insufficient lighting and a failure to utilize warning strips on the stairs created an issue of fact, as they conditions presented were not open and obvious.  This alleged lighting issue, the defendants stated, was raised for the first time in opposition to the motion for summary judgment, in effect, claiming that the plaintiff had manufactured this reason in an effort to stave off summary judgment.  However, the Court noted plaintiff’s deposition transcript about the lighting in the area, stating “it was dark” and “probably some small overhead lights, most likely covered in dirt.”  The Court found that the claims of inadequate lighting created an issue of fact that the defendants had failed to rebut, denying the defendants’ motion for summary judgment. The lesson here for defendant’s attorneys in similar cases is to make sure you fully flush out the claims of a plaintiff with respect to lighting, if it has been alleged.

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