Premises Pointers - Volume I, No. 6

Premises Pointers
Watch your step!


Volume I, No. 6

Wednesday, November 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




The Premises Pointers Team, Todd, Chris, Tessa, Anastasia, Jamey and I, are excited to be delivering the 6th issue of our newsletter!  We hope you’ve found the newsletter, its contents, our discussions (and of course the cover notes) helpful and informative.  Our firm also publishes Coverage Pointers (insurance coverage), Labor Law Pointers (New York Labor Law) and Health Law Pointers.  If you are interested in receiving any of these newsletters, e-mail Dan D. Kohane at [email protected] for Coverage pointers, David R. Adams at [email protected] for Labor Law Pointers and/or Lawrence M. Ross at [email protected].       


As promised, the Courts are definitely back in business, as you will see from the many cases covered.  On the retail front, we have a good collection of cases ranging from slip and falls, to product defect claims, and even a claim against a pet store owner for failing to obtain proper immunization records from its four legged patrons, which Tessa covers in her column.  They are all worth a read!


Here in Buffalo, we just had our first taste of artic air this past weekend after being spoiled with a beautiful fall.  The temperatures were well below freezing, bitterly cold in fact, with rain that turned to snow.  For all of the premises owners out there (retailers, restaurants, hotels, schools, businesses and the like), this means it’s time to renew the snow plow contracts (if not done already), break out the salt, have shovels, salt spreaders and ice choppers on site – all in an effort to make sure the parking lots, driveways and sidewalks are “reasonably” maintained.  As we all know, as least those of us in New York State, Tis the Season for trips, slips and falls!  It’s also the season for baking.  In addition to practicing law, my immediate future will involve lots of baking.  The result (hopefully) will be 6 pies for Thanksgiving (2 Apple, 1 Pumpkin, 1 Lemon, 1 Bourbon Chocolate Pecan and 1 Coconut Cream) and 3 happy kids. 

I hope you all have a wonderful Thanksgiving and enjoy this time with your family and friends!! 


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]





Hurwitz & Fine, P.C.


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Retail, Restaurant and Hospitality Happenings Around New York State

By: Jody E. Briandi [email protected]


11/09/2017      Kolodziewjski v. Jaskolka

Appellate Division, Fourth Department

Defendant’s motion for second IME denied

Defendant moved to compel plaintiff to undergo a second independent medical examination because plaintiff refused to perform certain tests during the initial independent medical examination. While the Court acknowledged there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it.  Here, the Court concluded the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and never indicated that her analysis and/or conclusions were affected by plaintiff's alleged refusal to perform certain tests. Thus, the Court declined to compel plaintiff to undergo a second independent medical examination.

Practice PointIf a plaintiff is non-complaint at an exam, the resulting limitations to IME doctor must be documented in order to support a motion to compel further examination    See Talley v. Chautauqua Hills Ministry, USDC, WDNY 2015, for an example of case where the proper steps were taken and the plaintiff was compelled to submit to further testing.


11/09/2017      Dolinar v. Health

Appellate Division, Fourth Department

Defendant’s motion for summary judgment in slip and fall case denied despite fact condition readily observable

In this slip and fall case, plaintiff was allegedly injured when she tripped and fell at defendant’s building in a hallway that had just been mopped.  The Appellate Court found that the defendant did not meet its initial burden in proving it did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor.  The Court further dismissed defendant’s argument that the motion should have been granted the condition was “readily observable” and was “aware the floor was wet.”  The Court reiterated that in the Fourth Department the question of plaintiff’s comparative negligence does not negate the defendant’s duty to keep the premises reasonably safe.

Practice Point: Open and obvious defense not a bar to recovery in Fourth Department.


11/09/2017      Wrobel v. Tops Markets LLC

Appellate Division, Fourth Department

Defendant’s motion for summary judgment in slip and fall, snow and ice case denied

Plaintiff commenced this action to recover damages for injuries that she allegedly sustained when she slipped and fell on snow or ice in Top’s parking lot.  Defendant moved for summary judgment based on the storm in progress doctrine.  In support of its motion, defendant submitted the deposition testimony of plaintiff, who testified that it was not snowing at the time of the accident, and an affidavit expert meteorologist.  However, the Court concluded the opinions of defendant's expert meteorologist were conclusory.  Thus, “Inasmuch as defendant failed to meet its initial burden, the burden never shifted to plaintiff "to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition.' "

Practice Point:  Support your storm in progress motion with objective evidence, such as photos, actual news footage and video, weather reports, etc.


11/09/2017      M.H. v. Bed Bath & Beyond

Appellate Division, First Department

Summary judgment granted to plaintiff on product defect claim against retailer who sold product, but plaintiff’s claims based on manufacturing defect, breach of express warranty, failure to warn and for punitive damages were dismissed

In this retail case against Bed, Bath & Beyond, plaintiff sustained injuries when a fire pot and fuel gel purchased from defendant combusted and exploded.  A red sticker affixed to the fire pot itself that must be removed in order to use the product states: "WARNING . . . DON'T REFILL UNTIL FLAME IS OUT & CUP IS COOL." Additionally, a pamphlet entitled "CARE AND USE INSTRUCTIONS," which comes with the product, states in the "WARNINGS" section: "Do not add fuel when lit and never pour gel on an open fire or hot surface." The label on the back of the fuel gel bottle instructs: "NEVER add fuel to a burning fire," and under the word "WARNING," which is in bold, it states: "DANGER, FLAMMABLE LIQUID & VAPOR."  Plaintiffs moved for partial summary judgment on the defective design claim. The Court concluded that plaintiffs through their expert affidavit established, as a matter of law and through expert proof, that the product at issue, consisting of the fire pot and the fuel gel, was defectively designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs' injuries. The Court rejected defendant’s contention that there is an issue of fact as to whether the alleged misuse of the product substantially caused plaintiffs' injuries.  Defendant's moved for summary judgment dismissing the manufacturing defect, breach of express warranty, failure to warn and punitive damages claims, which the Appellate Court determined should have been granted.  With regard to the breach of express warranty claim, defendant established prima facie that plaintiffs did not rely on any express warranty.  Defendant was also entitled to summary judgment dismissing the failure to warn claim because even assuming that the product warning labels did not comply with the requirements of the Federal Hazardous Substances Act, plaintiffs' witnesses either admitted that they had not read the labels or could not remember whether anyone read the labels.  Defendant was also entitled to summary judgment dismissing the claim for punitive damages as defendant's actions, while they may have been negligent, do not rise to the high level of "moral culpability" necessary to support an award of punitive damages.   It was determined that although defendant could have done more to ensure the product's safety, defendant took a variety of steps to vet the product and to investigate reported incidents and its awareness of, at most, two unsubstantiated accident reports did not justify a full product recall.


11/09/2017      Touloupis v. Sears, Roebuck & Co.

Appellate Division, Second Department

Defendant’s motion for summary judgment in slip and fall case against retailer granted because plaintiff could not identify cause of fall

In another retail case, this time against Sears, plaintiff allegedly tripped and fell outside the Sears Auto Center.  In support of its motion for summary judgment, Sears argued that there was no dangerous or defective condition that could have caused the plaintiff’s fall and relied on the plaintiff’s deposition testimony, wherein the plaintiff could not identify the cause of his fall without engaging in speculation.  Accordingly, the Court concluded summary judgment was properly awarded to Sear’s because plaintiff’s submissions “merely raised what appear to be feigned issues of fact designed to avoid the consequences of plaintiff’s deposition testimony.”




10/25/2017      Cross v. Friendship Group, LLC

Appellate Division, Second Department

Plaintiff’s inability to identify cause of her fall is again fatal in slip and fall case, this time against a restaurant

In this slip and fall case, plaintiff was allegedly injured when she tripped and fell at defendant’s restaurant.  At her deposition, when asked what caused her to fall, she responded that “it could have been grease from the kitchen” but she did not know for certain.  Therefore, the court granted the defendant’s summary judgment finding that plaintiff’s inability to identify the cause of her fall was fatal because her claim was based on speculation and nothing more. 

Practice point:  The depositions were key in this case.  It is essential to nail down the plaintiff’s testimony in order to support a later summary judgment motion.



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

By: Todd C. Bushway [email protected]


Dear Readers:

As any parent knows, conversations with your kids can often veer from the mundane and repetitive (…when I said please take care of the dishes from dinner that included the pots and pans….) to the existential.  Last week, I heard described an exchange between a teacher and a student (not me dad, a friend…) centered on precise language versus “you know what I mean”, leading to a discussion about words having actual meanings (who would have thought) and dad pontificating on how language is a lawyer’s stock in trade.  Heard mumbled from the passenger seat was a mix of teenage snark and thoughtful insight into the colloquial misuse of certain phrases and words by politicians and media types. 


Time is often described as marching on. Merriam Webster’s definition of march includes “to move in a direct purposeful manner” and “to make steady progress.” I’m not sure we have met the purposeful or progress parts of that definition, but time is a one way excursion. School years move in phases, marked by the end of marking periods, sports seasons and the like. Late October saw the end of my son’s fall crew season, while last weekend brought the 3 day run of the musical “the Addams Family,” featuring my daughter absolutely slaying her role as one of the ghostly ancestors. She is a senior and each passing event a step closer to a pretty significant step on life’s ladder. She has applied to several schools under earl action admissions, meaning the first round of college applications are out. Here’s hoping for good news by Christmas.


On the musical front, a 3 disc 25th anniversary edition of REM’s classic record Automatic for the People came out at the end of last week. The release includes a remastered version of the original disc, a 13 song set from a 1992 show and a disc of demo’s and outtakes.  Always nice to get a cleaner version of the original recording and the live stuff is pretty cool.  I would also recommend Mavis Staples’ new release “If All I Was Was Black” – great soul, written and produced by Wilco front man Jeff Tweedy.  Age has added a terrific gravitas to Staples legendary voice and delivery.  Finally, I have tickets to Bob Dylan this Saturday night.  It will be my second Dylan show, the first in 1986. That show was a triple bill – the Dead, Dylan and Tom Petty and the Heartbreakers, with Petty and his band playing their own set and serving as Dylan’s backing band. Kudos to my 20 year old self for going to that show.


We have 3 cases this month – two dealing with the doctrine of primary assumption of risk and a late notice of claim case arising from an arrest, pretrial incarceration and the subsequent dismissal of all charges.


11/8/2017        Hanson v. Sewanhaka Central High School District

Appellate Division, Second Department

Primary assumption of risk, gym class and a claim of intentional conduct.

Young Mr. Hanson was injured following a collision during a high school gym class basketball game, leading to a negligence suit against the school district and his apparently overly aggressive classmate.  Following discovery, the school district moved for summary judgment, arguing that Hanson’s suit against it was barred by the primary assumption of risk doctrine.


As most of you know, New York is a comparative fault state and in most cases, any claim that a party assumed the risk of whatever activity lead to their injury is addressed through apportion of fault among the parties and will not serve as an absolute defense.  Primary assumption of risk recognized that for certain activities, the voluntary participation in that activity necessarily included an assumption of the risks inherent in that activity and therefore, in those limited circumstances; the assumption of risk would serve as an absolute defense.  The doctrine applies only to a narrow grouping of sporting activities.

The Court’s decision gives a good overview of the primary assumption of risk doctrine and for that reason alone is worth the minute to click on the link and read the case.


Plaintiff countered the motion by arguing two that (1) his participation was not voluntary since the injury occurred during a required gym class and (2) because he claimed that the injurious contact was an intentional act by his classmate, and not the type of contact normally expected in a basketball game.

The Court dismissed the claim that plaintiff’s participation was not voluntary (“inherent compulsion”) by noting that the students in that gym class were allowed to choose from several activities, making plaintiff’s choice of basketball voluntary.


Plaintiff pointed to his testimony at the school district’s hearing conducted pursuant to General Municipal Law §50-h as proof (or at least grounds for a question of fact) to support his claim that his injury arose from a deliberate and intentional act.  The Court, while not (at least in the written decision) disputing that testimony, pointed to plaintiff’s complaint and Bill of Particulars, which lacked any claim of intentional tort to reject plaintiff’s claim, holding that a party cannot raise a new or materially theory of recovery in opposition to a motion.


It is worth noting that courts have addressed the issue of intentional or conduct that violates the rules of the game in past decisions.  Those decisions hold that the question is not whether the conduct violates the rules of the sport, but whether the conduct at question is unreasonably reckless or intentional.  In other words, typical fouls and penalties are to be expected, while conduct beyond that may preclude the use of this defense. 


10/26/2017      DeMarco v DeMarco

Appellate Division, Third Department

Primary assumption of risk versus assumption of risk as an element of comparative fault.

This decision addresses a defense post-trial motion arguing that the trial court should have given the jury charge primary assumption of risk, as opposed to an implied assumption of risk.  Plaintiff was a 43 year old woman who, while visiting her brother’s home, decided to join her 9 year old nephew on the trampoline.  She thought they would bounce in unison and he countered with dissonance, and plaintiff soon was at the emergency room with a fractured foot. The jury found the defendant liable (the decision does not note if comparative fault was assessed) and the appeal ensured.


The defense argued that since plaintiff had voluntarily chosen to join her nephew in defying gravity, at least in short bursts, and that the risk of falling was obvious, the primary assumption of risk doctrine applied and that charge, instead of the implied assumption of risk charge given by the court was necessary.


The court addressed two issues.  The first is the scope of the primary assumption of risk doctrine and whether this type of activity, which was no doubt recreational, was the type of activity to which the defense applied. The court determined that the activity fell outside the narrow range of activities covered by the defense, holding that “the activity at issue here is not the type

of ‘socially valuable voluntary [sport or recreational] activity’ that the doctrine seeks to encourage.” (citations omitted).


The case contains a good discussion of implied assumption of risk, addressed in CPLR §1411, which dictates that where assumption of risk is proven, any award will be reduced by the percentage of fault assigned to the plaintiff by the jury.


10/25/2017      Ruiz v. City of New York

Appellate Division, Second Department

Time limits for filing a late notice of claim may be different for different claims arising from an ongoing event; fear of reprisals by a potential defendant is not a reasonable excuse for a late filing.

On September 20, 2014, on what we can only presume was a fine day in Brooklyn, Mr. Ruiz found himself cuffed in the back seat of a New York City Police car and on his way to Rikers Island.  He was arraigned and released 3 days later.  The following March, the charges against him were dropped.  In May, Ruiz responded to his good fortune by file a notice of claim against the city alleging false arrest, false imprisonment and malicious prosecution.   The City moved, arguing the notices were late, resulting in plaintiff seeking permission for a late filing of that notice of claim.


The court noted that the notice of claim was timely for the malicious prosecution claim (which became viable when the charged were dropped – less than 90 days had passed since plaintiff was released).   However, the false arrest and false imprisonment claims had arisen in September of 2014, making the notice untimely.  The court rejected the argument that awareness or knowledge of the facts and circumstances of the arrest and arraignment constituted knowledge of the specific claims plaintiff now presented. 


Plaintiff also argued that he feared reprisal by the City if he filed his claim while the criminal charges were still open and therefore he had waited until after the charges were dismissed to file his notice of claim.  This was rejected.


Toxic Exposures

By: V. Christopher Potenza [email protected]


Dear Readers,

On a rare day in my Buffalo office, I write this column as I gaze out at my window with a beautiful view of Lake Erie.  While the last vestiges of fall foliage are apparent, I know all too well that an arctic blast is well on its way.  Last week brought me to “fabulous” Las Vegas for the annual DRI- Asbestos Medicine Seminar.  Now, I’m not much of a Vegas guy, but I find myself there every couple of years or so for various conferences or meetings and I am always amazed by the new development.  They must build a new casino every month, but a $5 blackjack table is nowhere to be found.  $5 beer, also hard to come by.  What happened to the $0.99 shrimp cocktail or the $5.95 prime rib? 

Where am I going next week?  Could be Florida, Charlotte, Syracuse, or Schenectady. Time to spin the wheel I guess.  Big bucks, no whammies... 

As for toxic tort appellate decisions, we’ve got one lead-paint and one asbestos decision this month, but nothing earthshattering.  The First Department affirmed the denial of summary judgment in the lead-paint case, and also sustained a $9 million NYCAL asbestos verdict.

There was a pretty significant asbestos trial court decision last week when Justice Merrell reduced a 2014 Onondaga County verdict of $7.7 million against a friction defendant.  The decision is rather lengthy, so please contact me directly if you would like a copy.  The decision addressed a few important issues.

1.) Duty to warn/ bystander exposure:  Not surprisingly, the court found that the manufacturer’s duty to warn extends to users, bystanders, and those in proximity.

2.) Value:  The award for pain and suffering was reduced from $6 million to $3 million, and the award for loss of services reduced from $1.5 million to $270,000.  However, this still equates to $250k per month for pain and suffering on a mesothelioma claim, and previous upstate rulings put the value at $150k month.

3.) Article 16 defendants:  The Court holds the trial defendant to the same Juni/Parker standard for proving causation against Article 16 defendants as it does with plaintiff, and the trial defendant did not establish any “scientific expression” of exposure to other products.  They were unsuccessful in adducing this evidence from plaintiff’s expert and did not put on any proof of their own as to the settled or bankrupt defendants. 

4.) And lastly, a trial attorney’s worst nightmare, failure to object to the jury charge and verdict sheet.   The jury should not have given separate awards for “conscious pain and suffering” and “emotional pain and suffering,” but there was no objection at the time of trial.  The total award for pain and suffering was cut in half however.

10/04/2017      Jocelyn C. v. Soundview Apartments Realty, LLC, et al.

Appellate Division, First Department

First Department affirmed denial of summary judgment to landlord in lead-paint claim as defendant had actual notice and failed to remediate.

The First Department affirmed the denial of summary judgment to the defendant landlord, Soundview Apartment Realty, LLC, finding that Soundview failed to establish its entitlement to judgment as a matter of law. The record demonstrated that the building was constructed before 1960 and that Soundview knew that a child younger than six resided in one of its apartments. It was further determined that Soundview had actual notice of a positive lead test in 2006, but failed to remediate the condition.  As a result, Soundview received a February 2009 letter alerting it to the fact that the lead condition remained unaddressed.  The Court ultimately held that due to the 2009 letter, Soundview failed to eliminate an issue of fact, since the letter obviated the conclusion of Soundview’s expert who originally opined that the positive lead paint test was too remote in time to establish proximate cause. 


10/05/2017      Miller v. BMW of North America, LLC, et al.

Appellate Division, First Department

First Department affirms NYCAL asbestos verdict, finding that plaintiff’s expert testimony on quantity and causation was sufficient.

The First Department affirmed a September 2016 asbestos award of $9 million ($5 million for past pain and suffering and $4 million for future pain and suffering- reduced by the trial court from the original $25 million jury verdict).  Plaintiff alleged asbestos exposure from the use of a grinder manufactured and designed by defendant, Hennessy Industries/Ammco.  Plaintiff's expert testimony established that plaintiff's use of the grinder on automobile brake linings exposed him to asbestos dust in quantities sufficient to cause his mesothelioma. Moreover, because the asbestos-laden dust was created by plaintiff's use of defendant's grinder, and defendant knew its grinder would be used on asbestos-containing products, defendant had a duty to warn plaintiff of the latent danger arising from the foreseeable use of its product.  Moreover, based on the evidence adduced at trial, the jury properly apportioned 86% of the fault to the sole trial defendant.  


Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]

Dear Readers:

I don’t think this is a well-known fact around the Hurwitz and Fine, but I love the show The Office. I secretly have considered that Michael Scott could very well be based off of a distant Scott relative of mine. Sometimes, to my horror, I just get him. Basically, what I am saying is that if you have any fantastic Office meme’s you want to send to someone, my email address is in the header above.


How is this relevant to the law? Well, this week we have a case involving a pet groomer (Plaintiff) and her potential exposure to rabies. Rabies is of course, the one disease Michael Scott tried to eradicate with a poorly attended fun run. In our case, Plaintiff’s boss made an explicit promise to her that all the pets would be screened to ensure they were up to date on their vaccines. (I promise I am not starting a debate about vaccines and dog autism). The pet shop owner did not exactly follow through. This only matters because Fluffy did not particularly like getting groomed and chomped down on the Plaintiff. The Plaintiff then had to undergo a series of treatments to prevent the infection of a host of doggie diseases. I imagine that this groomer was treated for rabies. I have heard that the shots involved are pretty painful. The Court must have heard that too because they awarded the plaintiff pain and suffering.


The Court determined that although the Plaintiff had assumed the risk of being bit by an ungrateful pup, she did not assume the concealed risk of being bit by a potentially rabid dog. Now, for the Office fans out there, Michael Scott debunked the “myth” that only three Americans die of rabies a year and revealed that four Americans succumbed to rabies annually. I did some sleuthing and the CDC indicated that Michael was exaggerating. Apparently there are about 2-3 deaths a year, thanks to those painful shots that Plaintiff was undoubtedly given.


Have a wonderful week and a wonderful holiday!




10/16/2017      Hayes v Mia's Bathhouse for Pets

Appellate Division, First Department

Michael Scott's Dunder Mifflin Scranton Meredith Palmer Memorial Celebrity Rabies Awareness Pro-Am Fun Run Race For The Cure.

The Plaintiff-dog groomer may have assumed the risk of being bitten by a dog while performing her services; however, she did not assume the risk that the dog was not properly screened by her employer. Defendant expressly promised Plaintiff that the dogs were screened to ensure they were up to date on immunizations—apparently not. The dog that bit plaintiff was not up to date.


After being bitten by a dog, plaintiff was properly awarded damages for the associated treatment and for pain and suffering incurred because of the medical treatment.


10/17/2017      Guilbe v Port Auth. of N.Y. & N.J.

Appellate Division, First Department

Defendant Demonstrated That It Was An Out Of Possession Land Lord With No Contractual Obligation To Maintain Or Repair The Property.

Defendant established its entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord. The lease provisions cited by defendant show that it did not have a contractual obligation to maintain or repair the premises. Plaintiff argued that the lease attached to defendant's summary judgment motion expired before plaintiff's accident, and thus defendant cannot rely on those provisions. However, defendant's senior property representative testified that there was a restated lease agreement in effect at the time of plaintiff's accident, which did not change defendant's obligations regarding repairs and maintenance of the premises. The restated lease agreement that was subsequently submitted confirmed the testimony.

Moreover, plaintiff failed to raise an issue of fact since she did not demonstrate that the allegedly defective condition that caused her fall constituted a structural or design defect contrary to a specific statutory provision.


10/25/2017      McDonald v Fitzgerald

Appellate Division, Second Department

Defendant Successfully Demonstrated That Plaintiff’s Chosen Route Of Travel Was Unforeseeable, And As Such Defendant Did Not Have A Duty To Plaintiff.

The plaintiff allegedly sustained injuries at the defendants' premises when a pane of glass in a cellar door shattered, causing glass to fall on her hand and arm, as she attempted to close that door. Thereafter, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint and plaintiff appealed.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create a hazardous condition or have actual or constructive notice of it. The evidence submitted by the defendants in support of the motion, including the parties' deposition testimony, showed that prior to the incident, neither the defendants nor the plaintiff experienced any problems using the subject door, and that they never noticed a problem with the subject pane of glass. Prior to the incident, no one had ever complained to the defendants about the subject door.

In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert, who inspected the subject door more than two years after the date of the incident, was insufficient to raise a triable issue of fact.

Additionally, the plaintiff failed to raise a triable issue of fact as to whether the doctrine of res ipsa loquitur applied to this case since evidence showed that the defendants were not in exclusive control of the subject door, including the subject pane of glass. Res ipsa, like many things with a Latin name, sounds complicated but isn’t so bad in practice. Res ipsa basically means “"the thing speaks for itself." Ultimately, its a doctrine where a party is presumed to be negligent if it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

10/10/2017      Figueroa v Skillman Realty Co.

Appellate Division, First Department

Defendant Was An Out Of Possession Landlord And Spilled Water Was Not A Design Defect.

Under the terms of the lease, third-party defendant Brooks Brothers had sole responsibility for maintaining the area where plaintiff sustained her injuries. Skillman was an out-of-possession landlord with no obligation to perform repairs, and thus, cannot be liable, since the wet floor that allegedly caused plaintiff to slip and fall was not a significant structural or design defect contrary to a specific statutory safety provision.









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

By: Anastasia M. Stumpf [email protected]


Dear Readers,


I am writing this column on my first day back from a long weekend spent in New York City.  I am a bit of a “foodie” and the primary purpose of the trip was to eat. After spending the majority of the weekend in some amazing restaurants and museums, I landed at the Buffalo-Niagara Airport late last night, got into my car, and immediately headed to a much-beloved Western New York grocery store whose most committed followers were once described as “having a cult-like devotion.”  I am, unabashedly, a member of that cult and the irony was not lost on me when, upon finally returning home, I found that the few things to write about for this issue were grocer-related.  Specifically, this month we discuss the November Update to American Jurisprudence’s sections dealing specifically with issues grocers typically face, as well as a recent Suffolk County Supreme Court Case where Defendants (a property management group, a plowing/snow removal company, and a grocery store)  obtained summary judgment and dismissal of Plaintiff’s Complaint using the storm-in-progress defense. 


06/09/2017      Luksic v. King Cullen Grocery Co., Inc., et al.

Supreme Court of New York, Suffolk County

Plaintiff’s Complaint is dismissed against property management group, snow removal company, and grocery store Defendants based on their showing of a storm-in-progress at the time of loss.  Contractual indemnification was also advanced by snow removal company as a ground for conditional summary judgment, but was ultimately rejected by the Court.

As briefly referenced above, this case touches on two pivotal defense doctrines—storm-in-progress and contractual indemnification.  Plaintiff brought suit after he slipped and fell on ice while walking from the parking lot of a shopping center into a King Kullen grocery store.  The shopping center where the store was situated was owned and operated by Defendants, Inland and RPAI US Management LLC (“Management Defendants).  The center’s parking lot was plowed and salted by third-party Defendant, Middle Island (for those keeping score, that’s four adverse parties). 


At the close of discovery, Middle Island moved for summary judgment, arguing that Plaintiff’s claims could not proceed because the icy condition was the result of a storm then in progress.  The Management Defendants also moved for conditional summary judgment on their third party claim against King Kullen, arguing that, under the terms of their lease agreement with the grocery store, King Kullen was obligated to indemnify and pay the attorneys’ fees of the Management Defendants. 


First, the trial court determined that Middle Island satisfied its initial burden of establishing that it had no notice of a hazardous condition because a storm was in progress at the time of loss.  Specifically, Middle Island provided certified climatological data, an expert affidavit of a meteorologist, and transcripts of the parties’ deposition testimony.  More importantly, the Court determined that Plaintiff ultimately failed to rebut Middle Island’s evidentiary showing because Plaintiff’s own prior testimony directly contradicted his own expert’s Affidavit.  As such, the Court found the expert’s Affidavit was merely an attempt to “raise a feigned issue of fact in order to avoid the consequences of dismissal.” The Court also dismissed Plaintiff’s argument that he slipped and fell on ice that formed before the subject storm as speculative. 


Despite Middle Island’s success, the Management Defendants’ indemnification argument was dismissed by the Court.  Based on the language of the controlling lease agreement, indemnification was entirely contingent on where, exactly, the Plaintiff ultimately fell.  Based on conflicting testimony and unclear blue prints, the Court determined that the property lines (and thus the parties’ maintenance obligations) were unclear as was the location of Plaintiff’s actual fall.  In light of these questions of fact, the Management Defendant’s conditional motion for summary judgment was denied.  Nevertheless, the Court ultimately dismissed Plaintiff’s Complaint against all Defendants in light of its storm-in-progress ruling. 



November, 2017 Update of American Jurisprudence, Second Edition, Premises Liability

Update to scholarly treatise that provides excellent plain language explanations of various issues that arise in premises liability cases.


American Jurisprudence is a scholarly source helpful for understanding various issues in tort law on a national level.  Generally, this publication is an excellent primer for a plain language understanding of the law governing tort actions.  This November, American Jurisprudence’s Premises Liability Section was updated.  The following is a brief summary of the treatises’ current interpretation of the law. 


            § 520.  Generally; slippery liquid or semiliquid substance


It is nearly universal that the owner of a commercial property has a duty to keep the property in a reasonably safe condition.  This duty includes an obligation to keep the premises’ floors free of slippery liquids.  Typically, this is accomplished by regular inspection and maintenance as well as with warnings of hazards that may be encountered. 


Where Plaintiff alleges that she slipped and fell on a slippery substance spilled by another customer, she must produce some evidence of the allegedly dangerous condition.  See Painforini v. Kelties Bum Steer (Where claim of customer who slipped and fell at a restaurant salad bar was dismissed absent any evidence of what customer actually slipped on).  See also Benware v. Big V Supermarkets, Inc. (Complaint dismissed where Plaintiff testified that she saw nothing on the floor prior to fall in supermarket, but that after she saw an unidentifiable liquid and smears on the ground, leading her to believe that someone unsuccessfully tried to clean up a spill.  The store manager also testified, however, that he inspected the area where plaintiff fell and found no liquid, nor was there any report of a substance on the floor).  In such a situation, Plaintiff must also establish that the store owner failed to inspect and maintain the premises and/or warn of a known hazardous condition.  See Wesolek v. Tops Markets


            §  532 Water dripping from freezers, displace cases, and ice


Unlike §520, this section primarily deals with hazards created by the stores themselves.  A store that uses freezers, ice machines, or refrigerated display cases has a duty to monitor and inspect such machines for any and all drips or leaks and to promptly clean up any water that may end up on the ground.  In order to recover, however, Plaintiff must still show that Defendant had actual or constructive notice of a defect with the machine—this requires Plaintiff to show that the water or ice was on the ground, before his or her fall, long enough that Defendant should have noticed it.  For example, Defendant will be found to have notice, and likely bear liability, where water slowly leaks from a refrigeration unit into a high traffic area.  See Hammer v. Kmart Corp.; Kerson v. Waldbaums Supermarket; Newman v. Great Atlantic & Pacific Tea Company



The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


As I write this from my office in Lake Placid, we have had snow in the Adirondacks the last few days and have more in the forecast.  Whiteface Mountain is scheduled to open to skiers and snowboarders later this week.  Whiteface is about 15 minutes from my office, my home ski mountain, where I usually get a season pass.  It features the greatest vertical drop a skier and snowboarder can enjoy this side of the Mississippi.  So have I ever snuck out of the office on a particularly snowy day to get in some early turns?  I plead the Fifth.  Do you really think this lawyer makes unnecessary admissions?


Whiteface also features a toll road which vehicles and cyclists can use in the summer months.  There is even a roller ski race up the road, which goes for 8 miles (5 after the toll booths) at an average gradient of 8%.  You will not catch me competing in that race.


What does this have to do with elevators and escalators, you ask?  Believe it or not, there is an elevator that takes visitors from the parking area near the top of the mountain to the very top of the mountain!  Where else can you say you say you took the elevator to the top of a mountain?! 


This month we will review some recent elevator and escalator decisions, which have been provided by the Courts.  The first details one of the main defenses available to elevator maintenance and repair companies (and heck, just about any defendant in a non-automobile personal injury action) – lack of notice – a significant hurdle prospective plaintiffs need to overcome to have a successful claim in an elevator case.  The second case involves alleged lack of notice for an escalator injury, but features a plaintiff overcoming defendants’ prima facie case.


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


11/01/2017      Nunez v. Chase Manhattan Bank

Appellate Division, Second Department

Lack of Notice Leads to Summary Judgment in Favor of Prior and Present Elevator Maintenance Company Defendants and Building Owner

The plaintiff was allegedly hurt back in 2003 when he allegedly fell down an elevator shaft from the second floor of the Chase Bank Building while working a maintenance position for United Building Maintenance Corporation.  Please note that I cannot tell from the Decision why it took 14 years to obtain a motion for summary judgment after the fall allegedly occurred – litigation is rarely as fast as the parties want it to be, but 14 years for a personal injury action? 


In any event, Plaintiff allegedly that the elevator door remained open as he did his job, but when he went to re-enter the elevator, the cab was not at the second floor entrance.  The plaintiff alleged he fell and landed on the top of the elevator cab and commenced this action for his injuries.  As an aside, presuming that the incident occurred as the plaintiff claims, it just seems unlikely to this writer that a person would enter through an elevator door which remains open on a floor without looking where the plaintiff was going. 


Plaintiff brought the action against the owners of the building, two Chase entities.  The Chase entities (treated as a single entity in the Decision and referred to collectively as “Chase”) brought third-party actions against the “new” elevator maintenance and repair company (Thyssenkrupp) which had entered into a service and maintenance contract “several days” before the accident and the “old” elevator maintenance and repair company (which, fortuitously, was named “Nouveau”), which had expired several weeks before the plaintiff took his tumble.


Chase moved for summary judgment and for summary judgment on the third-party claims and each of the elevator companies move for summary judgment dismissing the third-party claims.


The Court noted that while property owners have a duty to maintain their property in reasonably safe condition, a plaintiff must show “not only that a defective condition existed and was a proximate cause of his or her injuries, but also that the property owner either created the defective condition or had actual or constructive notice of its existence.”  The Court found that Chase has proven its entitlement to summary judgment dismissing the plaintiff’s complaint as a matter of law, as the plaintiff failed to create an issue of fact that Chase had notice of the condition.


With respect to the elevator maintenance and repair companies, the Court noted they may be held liable for failing to correct dangerous conditions which it knew of, should have known of or failed to discover and should have.  The Court found both elevator companies, separately, established that they had no notice of the allegedly defective condition and had not failed to use reasonable case to discover the allegedly defective condition.  Plaintiff failed to manufacture an issue of fact on opposition.


Plaintiff’s complaint was dismissed, third-party actions dismissed and cross-claims for indemnification were rendered moot.


10/31/2017      Ramirez v. Northern Blvd. 4818 LLC

Supreme Court, Queens County

Defendants’ Motions for Summary Judgment Denied in Escalator Baby Stroller Injury Case

Plaintiff was allegedly injured at the Shops at Northern in Long Island City when she was caused to fall down and up an escalator.  She claimed that she hit a piece of broken metal on the right side of the escalator and that this piece of broken metal caused her fall.  Defendants included First New York Management, which managed the premises; FC Northern Associates II, LLC, which was the ground tenant of the premises; Northern Blvd. 4818, described as an “out of possession ground lessor” in the Decision; and Forest City Enterprises and Otis Elevator Company, the last two of which a contract existed between for Otis to do preventative maintenance, service and repair of the elevators and escalators at the premises.  Eventually, all defendants moved for summary judgment.

Plaintiff was deposed over five days and testified that with her husband and two sons, they intended to go to the Chuck E. Cheese located on the second floor of the premises.  Her husband and her had a baby stroller for one of the sons.  The husband rode up the escalator with the baby in the stroller backwards, 3-4 steps in front of the plaintiff, and she rode close to the right edge of the escalator, holding her son in her left hand and the bannister of the escalator in her right hand.  About a quarter of the way up, plaintiff’s right shin was struck by a broken piece of metal sticking up from the right side of the escalator.  She testified she screamed, fell on her knees and backwards onto the escalator, pulling her four year old son on the top of her chest.  The husband let go of the stroller and it got stuck on the escalator while the baby was inside.  The plaintiff continued up the escalator on her back, four year old son on her chest, and somehow passed beneath the stuck stroller, it having come to rest halfway up the escalator and wedged between the escalator walls.  Further chaos ensued before the baby could be rescued from the stuck stroller and the escalator stopped.  The husband took a photograph of the broken piece of metal, which was covered in duct tape, which hit the plaintiff.

Other deposed parties included the husband, who did not see anything wrong with the escalator prior to taking it but otherwise provided further support for plaintiff’s claims.  The property manager testified that she was on duty at the time and the warning signs at the base of the escalator warn people not to bring strollers onto an escalator. 

The Otis mechanic assigned to servicing this escalator also was deposed.  He had made the vast majority of the calls to the escalator for Otis personally during 2013.   He said he left the escalator safe after each visit.  On the date of the incident, he responded to a call that someone had damaged the decking of the escalator by placing a stroller on it.  He saw a piece of decking lifted on the right side and was aware of duct tape on one of the pieces of decking adjacent to the up escalator.  The duct tape had been there since he had serviced the escalator and was not holding the escalator together.  Otis’ employee’s inspection of the escalator the day before the incident revealed that the decking was in proper condition when he left the escalator.  An employee charged with cleaning the escalator also revealed he saw no issues with the escalator and did not see metal sticking up.

Plaintiff, in opposition, brought an expert affidavit forward which concluded that the damaged and improperly repaired section of the inner deck was the cause of the accident, plaintiff had not done anything wrong and the signage directing that no strollers be present on the escalator was insufficient.  The expert also opined that the loosening of a piece of inner deck does not occur absent negligent maintenance and repair.  Defendants proffered no expert in opposition.

The Court noted that the defendants, as proponents on a motion for summary judgment, had to show that they did not create the condition or have actual or constructive notice of the condition.  The Court found that through the deposition testimony, defendants met their burden of showing the escalator was regularly inspected and maintained and no prior complaints about the elevator had been received previously.  One of the employees had been at the elevator an hour before and saw no issues and the Court also credited the Otis employee’s testimony that he had found all in working order with the decking the day before. 

Plaintiff, however, was able to raise a triable issue of fact.  The Court noted both plaintiff and husband testified that there was duct tape where the meal piece struck plaintiff’s leg, submitted photos of same and the presence of the duct tape was confirmed by the Otis employee.  Further, the Otis employee testified that he never removed the tape and coupled with plaintiff’s expert’s opinion that the screws holding the decking in place underneath the tape could not be properly checked unless the tape was removed, summary judgment was denied for the defendants.

This case helps to illustrate how important it can be to retain an expert when moving or opposing partial summary judgment motions.  All too often, parties do not want to spend the money, and while there is no telling what would have happened here had the defendants retained an expert, it can often be the difference between winning a motion and losing a motion.



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