Premises Pointers - Volume I, No. 8

Premises Pointers
Watch your step!


Volume I, No. 8
Monday, January 15, 2018
A Monthly Electronic Newsletter


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


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

Jody E. Briandi
[email protected]



Todd C. Bushway
[email protected]



V. Christopher Potenza
[email protected]

Tessa R. Scott

Anastasia M. Stumpf

James L. Maswick



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




Greetings from Western New York where we, like many of my friends in Minnesota and elsewhere, have been battling some pretty frigid temperatures, along with snow, ice and some slippery situations.  In an effort to keep up with the weather and insure safe conditions for patrons, I’ve noticed signs like the ones below popping up. 

Description: wegmans sign    Description: mall sign

There were several of the penguin signs posted along the sidewalk at a local grocery store and the other sign was posted at a mall entrance. 

What do you think?  Good idea?  What about the parking lot or sidewalk with no such signs?  Does that make the owner more liable?  In my view, signage like this certainly can’t hurt, but I’ve yet to find a case that lets a property owner off the hook just because a sign is posted.  And the converse is true – I’ve yet to find a case that imposes liability just because there is no sign.  Does the posting of such a sign place more culpable conduct on the plaintiff who slips?  Maybe, but perhaps the sign will be used to show the owner knew of the conditions, i.e. notice.   Like everything, it’s just one more factor to consider when assessing the potential liability in a slip and fall case.

This month we welcome guest columnist attorney Michael Perley, who is a member of our litigation department specializing in municipal law, transportation negligence and catastrophic injury claims.  In this issue, Mike covers a recent New York Court of Appeals case issued last month in December applying the “Kelly Rule” to a workers’ compensation award.  You will also be hearing from Mike in some of our upcoming Premises Pointers issues where he will be covering municipal topics of interest to municipalities.  Also included in this month’s edition is a collaborative effort by Todd Bushway and Jamey Maswick summarizing and commenting on a decision from the Fourth Department regarding IME’s and the plaintiff’s ability to subpoena billing records of the IME doctor.

Please feel free to share this newsletter with friends and colleagues who would find it useful. We are happy to add new subscribers!  If you are interested in being added to our subscription list, just send me an e-mail at [email protected].  And if you have any questions, a problem, a case you want to discuss, please feel free to give me a call or send an e-mail!  I would love to hear from you.   



© Hurwitz & Fine, P.C. 2017 - All Rights Reserved


Guest Contributor Column


By: Michael F. Perley [email protected]

Joseph A. Terranova, Jr. v. Lehr Construction Co.
(Court of Appeals, December 19, 2017)

Joseph Terranova was injured in the course of his employment and collected Workers’ Compensation benefits in the amount of $21,495.99.  Terranova made a claim against the general contractor, which he resolved for an undisclosed amount of money.  At the time of the settlement, it appears that the Workers’ Compensation lien was adjusted for Terranova’s attorney’s fees and disbursements (“cost of litigation”).  What remained unresolved at the time of the settlement was Terranova’s claim for a scheduled loss of use, which was in litigation at the Workers’ Compensation Board.  After the settlement, Terranova was awarded a 10% scheduled loss of use of his right leg and awarded 28.8 weeks of benefits resulting in an additional award of $9,960.00.  Although it is not clear in the opinion, it appears that the Workers’ Compensation Board retained the entire amount of the award pursuant to the Workers Compensation §29 set-off it received as a result of the settlement.  Terranova argued that he was entitled to be repaid the cost of litigation for that set-off. The Workers’ Compensation Board, along with the Appellate Division disagreed.  The Court of Appeals, however, reversed.

To fully understand the reasoning of the Court of Appeals, it is appropriate to revisit the matter of Kelly v. State Insurance Fund (60 N.Y.2d 131 [1980]).  In that case, the Court of Appeals determined that, where the future benefits for the injured worker were ascertainable at the time of settlement, the cost of litigation for both the lien and the present value of the ascertainable future benefits would be apportioned to the injured worker, thereby reducing, or potentially eliminating the Workers’ Compensation lien.  In rare cases, this resulted in a “fresh money” cash payment from the Workers’ Compensation carrier to the injured worker. 

Fast forward to 2007, when the Court of Appeals addressed situations where the future indemnity benefits were not ascertainable at the time of the settlement.  In Burns v. Varriale (9 N.Y.3d 207 [2007]), the court determined that, in those circumstances, the cost of litigation would not be apportioned at the time of settlement, but required that the “carrier should … periodically pay its equitable share of the attorneys’ fees and costs based on actual benefits accrued.”  In passing, the Burns court noted that the “pay as you go process” would not apply where “a claimant does not receive benefits for death, total disability or scheduled loss of use.” 9 N.Y.3d at 217)  Relying on the carve out in Burns, the Workers’ Compensation Board and the Appellate Division noted that Terranova’s claim was for a scheduled loss of use.  Neither the Board not the Court appreciated the distinction that the scheduled loss of use had not been awarded at the time of the settlement.  The Court of Appeals noted that, since this award had not been determined, the amount was not ascertainable and, as a result, the “pay as you go” procedure in Burns would apply.  This clarified the Court of Appeals determination in Burns applying the “pay as you go” process to any wage continuation (indemnity) payment that was not ascertainable at the time the bodily injury lawsuit was concluded.

Finally, the Workers’ Compensation carrier also claimed that Terranova had waived his rights by executing a Section 29 Agreement, reciting that the “lien reimbursement reflects a reduction of the carrier’s lien pursuant to Kelly v. State Insurance Fund and all parties reserve their right to Burns v. Varriale.” The Court of Appeals, interpreted the plain language of that agreement incorporating what it characterized as the “proper” reading of Burns, to preserve Terranova’s rights.


Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi
[email protected]


01/09/2018       Lynch v. S & C Wholesale Grocers, Inc.
Appellate Division, First Department
No liability on grocer for injuries allegedly sustained by truck driver who voluntarily manually unloaded the delivery 

Plaintiff, a truck driver, was allegedly injured when he was manually unloading boxes from a trailer owned by defendant store.  As the story goes, the reason he was manually unloading the boxes is because the shrink wrap used by defendant to secure the boxes to the pallet came loose, causing the boxes to fall to the floor.  Plaintiff then manually unloaded the boxes sustaining an injury in the process.  Defendant established through plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident.  Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day.  The Court determined that the possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so.  Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions.  The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged.


12/28/2017       Faber v. Place Furniture, Inc.
Appellate Division, First Department
No liability on defendant furniture store for allegedly dangerous step in defendant’s showroom

Defendants established prima facie entitlement to summary judgment based on evidence that the single 8" step onto the furniture display platform in defendants' showroom — on which plaintiff  tripped — was an illuminated, open and obvious condition which was readily observable by reasonable use of one's senses.  The plaintiff had navigated the single step onto the furniture display platforms earlier that shopping day, and on a prior visit to the store.  There was no evidence to indicate that the single step, in its design, placement and maintenance, was inherently dangerous, and the defendants' use of warning signs to give notice of the step's presence did not, standing alone, render the steps unsafe.  Plaintiffs did not present any proof that negligence on the part of defendants in the design, construction or maintenance of the subject step contributed to her fall, or that alleged showroom distractions support grounds to find liability on defendants' part under the circumstances presented.


12/20/2017 Interesting read out of Indiana where a hotel guest was charged $350 by the hotel for leaving a negative review about her hotel stay

The Abby Inn Hotel charged a guest $350 for leaving a negative review about the hotel online.  The hotel’s policy allegedly read: “Guests agree that if guests find any problems with our accommodations, and fail to provide us the opportunity to address those problems while the guest is with us, and/or refuses our exclusive remedy, but then disparages us in any public manner, we will be entitled to charge their credit card an additional $350 damage. Should the guest refuse to retract any such public statements legal action may be pursued.”  After leaving the review, the guest received threats that if she did not take the review down she would be sued.  She was ultimately fined and charged $350 by the hotel.  The Indiana Attorney General’s office filed its own lawsuit on December, 15 2018 against the hotel (State of Indiana v. Abbey Management, Inc.) claiming the hotel’s policy of leveling a charge against guests for negative reviews violated the state’s Deceptive Consumer Sales Act.  In defense of the policy, the hotel cited to a practice of “social media blackmail,” whereby a guest who does not complain during their stay later demands a reimbursement due to some alleged problem during the stay or they will take to social media with complaints.  The story takes another twist because the current owners of the hotel are now apparently receiving threats due to the media coverage the Indiana lawsuit has fostered.



Negligent Supervision, Municipal Claims, Assumption of Risk and Limited Services Contracts
By: Todd C. Bushway
[email protected]

Greetings from the land of rapidly changing temperatures.  In the first 12 days of the new year, western New York has seen temperatures range from a couple of degrees below zero to the mid 50°s, including a 30 point swing last Friday.  I’ve never found the changing of the year to have much impact on my view of the world – I figure if you are going to make changes or try and chart a new course, the date on the calendar shouldn’t matter.  However, this year, January 1st did have a new meaning attached to it.  That date marks the deadline for college applications and my daughter successfully had her final applications done and filed timely and without a lot of drama.  Now the waiting game begins.

There are three cases dealing with primary assumption of risk to consider, with the guiding principal being that the devil is in the details and that there needs to be deliberate focus in identifying those details.


12/27/2017       E.B. v. Camp Achim
Appellate Division, Second Department

Primary Assumption of Risk – Case dismissed where benches adjacent to field were open and obvious and plaintiff was aware of their presence.

The case arises from a claim brought by a 15 year old plaintiff who was injured when he ran into permanently affixed benches adjacent to a large field at a summer camp operated by the defendant.  Plaintiff was playing touch football when the injury occurred.  The field did not have any lines or similar markings.  Plaintiff fell over the bench while running to catch a pass.  Although there were no markings to designate the bench as such, Plaintiff testified that the campers used the bench to mark the area where a player would be considered to have scored a touchdown.  Plaintiff also testified that before turning to attempt to catch the pass, he had run the length of the field and towards the bench.

Primary assumption of risk holds that a voluntary participant in a sporting event necessarily assumes the risks inherent in the activity.  Those risks include field conditions, as long as those conditions as open and obvious, which was the argument here.   The trial court denied the defense motion and the Appellate Division overturned that denial and the claim was dismissed.  That the court specifically noted the size of the benches (18” x 8’), their composition (silver metal), and the plaintiff’s testimony that the campers used the benches to delineate a touchdown and that plaintiff had run towards the benches before turning to catch the pass is no accident – those factors all go to the open and obvious nature of the benches and plaintiff’s awareness of their presence.

The practice point is that a defendant who believes that the primary assumption of risk defense might apply needs to ask pointed questions about the plaintiff’s background and familiarity with the activity, the field conditions and what awareness of that condition might have had about that condition.


12/20/2017       Genefar v. Great Neck Park District
Appellate Division, Second Department

Open and Obvious Condition – Case dismissed because sign on pole in a park was open and obvious and plaintiff was aware of it.

Plaintiff (age not stated, but a kid) was playing catch with a friend for about 15 minutes before he was injured when he ran into a sign affixed to a pole.  The pole was adjacent to the grassy area where the pair was throwing a football and was located in a children’s playground in the park.  Plaintiff admitted he knew that the pole and sign were present.

The defense moved for summary judgment on two grounds – that the sign and pole was an open and obvious condition, for which a reasonably prudent landowner need not warn about and that the claim was barred by the primary assumption of risk defense.  The lower court granted the motion.

The court considered the open and obvious defense first and stated that the sign/pole was both readily observable to a person “employing the reasonable use of their senses” and that plaintiff testified that he was aware of the sign/pole.  Because of this the case was dismissed, without the court considering the primary assumption of risk defense.

It is interesting to note that the open and obvious nature of the sign/pole would have been a factor for the court to consider if it analyzed the case through the primary assumption of risk lens.

The practice point is again in the details, especially during depositions.  Counsel has to not only elicit the details of the condition, but also what the plaintiff had observed prior to the incident.


12/13/2017       Lee v. Brooklyn Boulders LLC
Appellate Division, Second Department

Primary Assumption of Risk – Question of fact found where plaintiff was aware of the risks inherent in rock climbing.

Plaintiff was injured when, while dropping down from a climbing wall at the defendant’s facility, her foot landed in a gap between two maps at the bottom of the wall. 

Defense argued that that (1) the release the plaintiff had executed prior to climbing the wall precluded the claim and that (2) the claim was precluded by primary assumption of risk.

The court ruled that because the defendant’s facility was a recreational facility, the release was void under New York General Obligations Law §5-236.  On the primary assumption of risk defense, the court found that there existed a question of fact regarding whether the gap was an a open and obvious condition or whether the condition was concealed and therefore not assumed by the plaintiff when she engaged in the activity.

The practice points here are to remember that the existence of a release is not determinative when the defendant is a recreational facility and that the open and obviousness of equipment or field conditions is usually fact specific.  The decision does not indicate what plaintiff may have testified about her awareness of the gap in the mats or that risk in general.


Toxic Exposures
By: V. Christopher Potenza [email protected]

Dear Readers,

After the holiday lull, litigation season is back upon us like a cold arctic blast.  How nice it was not to deal with plaintiff’s attorneys for those brief few days…

As the toxic tort decisions have been light, we are inserting a new piece into this monthly column: dad jokes. 

What did the daddy buffalo say to his boy buffalo when he dropped him off at school?  Bi-son.

Ok, back to the legalese.  There was a toxic mold decision from the Second Department and a couple of lead paint decisions last month, both from the Fourth Department.  Apparently even if you lose your house to foreclosure, you are still liable for a lead paint injury. 


12/22/2017       Nero v. Kendrick
Appellate Division, Fourth Department
Liability for lead paint injuries remains with homeowner even following foreclosure.

The Fourth Department reversed the order granting partial summary judgment to the defendant homeowners dismissing all claims for injuries allegedly sustained by plaintiff after defendants had lost title to the property by order of foreclosure entered on April 8, 1992. Although defendants established, in support of their motion, that a judgment of foreclosure had been entered, it is well settled that the entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until a sale is actually conducted. It is undisputed that the actual sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint.  Thus defendants failed to meet their burden on that part of their motion.

12/22/2017       Washington v. City of Rochester
Appellate Division, Fourth Department
Municipailty liable for lead paint claims under ordinary negligence standards.

Plaintiff allegedly sustained injuries as a result of exposure to lead paint while residing in a building allegedly owned by the Defendants, City of Rochester and Davis Passmore.  The City of Rochester claimed that it was shielded from liability on the ground of governmental immunity. When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acting in a governmental capacity at the time the claim arose. A government entity performs a purely proprietary role when its activities essentially substitute or supplement traditionally private enterprises.  Where a municipality acts in a proprietary capacity, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties. 

The Fourth Department affirmed that the City failed to meet its initial burden of establishing, as a matter of law, that its allegedly negligent acts were undertaken in a governmental rather than a proprietary capacity.  The City submitted evidence that the property was transferred to Passmore by revocable deed on a date after plaintiff began residing at the property. Although the City argued that Passmore took control of the property prior to that date through a purchase agreement with the City, the City could not produce that agreement, show the date on which it was executed, or provide evidence concerning the terms of that agreement.

12/13/2017       Kamel v. Mukhopady
Appellate Division, Second Department
Claim for toxic mold injury fails for lack of objective standards to determine causation.

The plaintiff alleged that he became sick due to the presence of toxic mold and other substances in the apartment building in which he resided. The Second Department affirmed that defendants established their prima facie entitlement to judgment as a matter of law on the issue of whether they caused the plaintiff's injuries and plaintiff failed to raise a triable issue of fact. The conclusory affidavit submitted by the plaintiff's expert failed to utilize objective standards to show that the toxic mold to which the plaintiff allegedly was exposed was capable of causing his injuries, or that his exposure to the toxic mold was the actual cause of his illnesses and symptoms.


Homeowner Liability and Recreational Accidents
By: Tessa R. Scott


Dear Readers:

I am very fortunate to work with some pretty incredible people.  Today, some of those folks surprised me by fully decorating my office for my birthday.  The decorations included custom stickers of me—placed all over the office.  Notably, today was also the day I met one of our new employees, needless to say she will never forget who I am.  She has a sticker of me to remind her. 

This edition we have the dismissal of a tenant’s case against their landlord. Many times these tenant dispute cases start, and end, in small claims court, so occasionally it can be helpful to look beyond the appellate divisions. The decision is short, but sweet. Plaintiff failed to show any evidence, in small claims court, that her landlord’s renovation projects caused her physical harm. (viz. there was no causal connection between alleged jackhammer usage and damages to her ears- puhleezzz). If you found it odd that a tenant sued her landlord for IMPROVING the property, you are not alone. 

Similarly, we have a delivery man who alleges the sidewalk abutting Defendant’s property was defective. However, like our tenant friend, he had problems proving his case.  He was unable to tell the Court what the dangerous condition on the sidewalk actually was. This is fatal to a plaintiff’s claim. That may, at first blush, seem a little harsh to the injured party. However, if you can’t explain what was wrong with the area, how in the world would the homeowner/landlord/ maintenance company have notice of the condition? How could any repairs be made to the unknown defect? How could the public be forewarned about the issue? 

I hope you all have a wonderful week!



12/18/17           Bella N. Hanna v 19 W. 55th St. Prop
Appellate Division, First Department

Plaintiff could not establish that the Landlord’s renovations to the property damaged her ears.

Plaintiff failed to produce evidence establishing that defendant-landlord's renovations at the building premises, which allegedly involved the use of a jackhammer, proximately caused any injury to plaintiff's ear or any damage to her refrigerator. Nor, in any event, did plaintiff provide any competent evidence of damages.

Additionally, Plaintiff's action under index number 2049/15 was properly dismissed as being duplicative and thus an improper attempt by plaintiff to circumvent the jurisdictional limit of the small claims court.

11/28/17           Meriweather v Green W. 57th St., LLC
Appellate Division, Second Department

If you can’t prove the existence of a dangerous condition, you can’t recover

The plaintiff allegedly sustained personally injuries while traversing a sidewalk outside of the defendant's building on West 57th Street near the corner of 11th Avenue in Manhattan.  Plaintiff was delivering an equipment cart to a tenant in the subject building was caused to come to an abrupt stop, striking him and causing him to fall.

The Plaintiff’s case was not successful because he failed to establish what condition caused the cart to come to an abrupt stop. Plaintiff merely provided the court with an affidavit  with “feigned issues of fact designed to avoid the consequences of his earlier deposition testimony and, therefore, was insufficient to defeat summary judgment.”


Snow and Ice, Storm in Progress, Tavern Owner/Dramshop Liability and Other Timely Topics
By: Anastasia M. Stumpf [email protected]

Dear Readers,

               The next time you hear from me, my life will have been undeniably altered—I will have an extra ring on my left hand, my name will be slightly altered, and my hair will be suddenly long, flowing, and appear as if conditioned by the gods.  Okay, I admit that’s a very dramatic way of saying that I am getting married in less than a month, but, it’s also a fitting statement since (most of) this month’s cases are all about drama. 

               In our first case we hear the tale of two rival first communion parties that inexplicably ends in a man vs. vehicle showdown and a Dram Shop Act lawsuit.  Next, we hear from the Second Circuit (and the Eastern District) about some malicious prosecution claims initiated by a former attorney-turned-sex-offender who really did not want to provide his address to the State; a protester who sued after a trespassing arrest (and a confession of wrongdoing); and a prisoner with not one, but four different malicious prosecution and false arrest stories.  Oh and, lastly, because I just can’t help myself, we have a slip and fall case.


11/13/17            Sirois, et al. v. Ferrara, et al. v. The O.P. Trading, Inc., et al.
Supreme Court, Richmond County

A first communion party goes horribly wrong, ending with a pedestrian v. motor vehicle show down, a DWI conviction, and a lawsuit.

Plaintiffs moved to set aside a jury verdict for the Defendants on the issue of liability, seeking either a directed verdict in their favor or a new trial.  The underlying case arose from a dispute between party-goers at the Oriental Plaza Chinese & Japanese Restaurant (aka The O. P. Trading, Inc.) and the undisputed facts are as follows.  The Oriental Plaza is a restaurant and event space with several floors.  The first floor is generally open to the public, while the upper floors and basement level are used a banquet rooms.  On the fateful date of loss, Jenna Pesce and Joseph Sirois were hosting a first communion party for Jenna’s daughter.  More than 100 adults and children attended the event, including Plaintiffs Ronald Sirois, Sr., Ronald Sirois, Jr., and family friend, Ronald Giordano.  Two floors below the Pesce-Sirois first communion party, Jeanine and Carlo Monroy, friends of Defendant Ferrara and his wife, were also celebrating the first communion of their own daughter with 60 of their friends and family.

Over the course of both parties, Mr. Ferrara walked upstairs to the Pesce-Sirois party to retrieve his three year old daughter who had been drawn to the second floor of the building by music played at the party.  For some reason, Mr. Ferrara’s presence angered the attendees at the Pesce-Sirois party and words were exchanged.  Upset, Mr. Ferrara returned to the basement of the building, had “five shots” over a short period of time (provided by Mr. Monroy), threw a chair in hulk-raging anger, and returned to the second floor with several of his friends, including Mr. Monroy.  Words were again exchanged, the Pesce-Sirois party broke up, and Mr. Ferrara and his own family began to leave the building. Thus endeth the uncontested facts.

At trial, Mr. Ferrara testified that he walked to his Lincoln MKZ with his wife and daughter and that Mrs. Ferrara got into the driver’s seat.  At some point, six men surrounded their vehicle and Mr. Ferrara was punched.  Mrs. Ferrara and daughter then fled from the vehicle, to the restaurant, while Mr. Ferrara exited the passenger seat and placed himself behind the wheel of the car.  Mr. Ferrara claimed that although the men continued to bang on his car, punch him through an open window, and threaten to kill him, he managed to begin moving his vehicle and attempted to exit out onto the roadway from behind the restaurant.  When he was unable to find an exit, Mr. Ferrara turned around and began driving toward the front of the restaurant where he saw that Mr. Monroy’s van was also surrounded by people.  Mr. Ferrara again attempted to exit onto the street, but testified that he was unable to do so when a man jumped onto the hood of his car.  Ultimately, he stated that he was forced to keep driving and struk several men (Plaintiffs) with his vehicle. Once out on the street, Mr. Ferrara flagged down a police officer and admitted that he hit some pedestrians outside of the Oriental Plaza restaurant.  Mr. Ferrara was then arrested and charged with DWI.  His BAC at the time was .142. 

At the ensuing civil trial, Plaintiffs unsurprisingly denied any wrongdoing and testimony was elicited from all four Plaintiffs, Defendant Ferrara, Mr. Monroy, and the manager of the Oriental Plaza, John Butt.  Plaintiffs’ testimony, and the testimony elicited on their behalf, indicated that Mr. Ferrara’s breath smelled of alcohol and that he appeared unsteady. Notably, however, Mr. Butt’s testimony contradicted that of Plaintiff Ronald Sirois, Jr., who claimed that Mr. Butt had gone out to the parking lot area to take Mr. Ferrara’s keys away, “presumably to demonstrate the restaurant’s knowledge of Ferrara’s condition for purposes of its responsibility under the dram shop law.”  Mr. Ferrara and Mr. Butt, however, both denied that this occurred. 

At the conclusion or proof, the verdict sheet asked the jury to determine whether each Plaintiff was struck by Mr. Ferrara’s vehicle and, if so, whether that action constituted an assault.  If not an assault, the jury was asked to then determine whether Mr. Ferrara was negligent.  After hearing all of the evidence, the jury found that Mr. Ferrara did strike all four Plaintiffs, but that his actions were not an assault nor were they negligent.  The jury also found that the Oriental Plaza was not liable under the dram shop law, having answered “no” to the question “Did plaintiffs prove that the Oriental Plaza: a) provided alcohol to Vincent Ferrara at a time when Mr. Ferrara was visibly intoxicated; b) which caused or contributed to his intoxication in any appreciable degree; and c) for which there is some reasonable connection between the intoxication and any contact by Vincent Ferrara’s vehicle to one or more plaintiffs?”

In ruling on the Plaintiffs’ motion to set aside the defense verdict (and for a directed verdict in their favor), the Court determined that the jury’s findings were not contrary to the weight of the evidence.  Indeed, the Court found that because the case turned almost entirely on witness testimony, the jury was entitled to believe and accept whatever version of events it found most credible.  Moreover, the Court did not find the jury’s conclusions outlandish in light of the testimony adduced at trial, including testimony that: during the commotion, Mrs. Monroy’s hair was pulled; that Mr. Butt did not try to take Mr. Ferrara’s keys; and that no bartender or waiter served alcohol to Mr. Ferrara or were aware (or should have been aware) that he was drinking or intoxicated.

Having been denied their request for a directed verdict, Plaintiffs requested that the Court grant them a second trial, arguing that the Court erred when it (1) denied them the opportunity to use Mr. Ferrara’s plea allocution to assault because it would have entitled Plaintiffs Ronald Sirois, Sr. and Ronald Giordano to judgment as a matter of law; and (2) when it included the emergency doctrine in the jury charges.  The Court found that it did not err in either regard. 

First, although Mr. Ferrara did plead guilty to two counts of assault in the second degree and one count of DWI, Plaintiffs cited no case for using the assault allocation.  More importantly the jury did hear details about Mr. Ferrara’s DWI conviction, but, even if presented at the beginning of trial, it would have been too late for relief in the form of a dispositive motion seeking judgment as a matter of law any.  In other words, even if the Court had erred, the error was harmless.

Second, the Court did not find that the emergency doctrine was inappropriately applied.  Instead, the Court affirmed its previous ruling by stating that the emergency doctrine is frequently applied in cases where threats of personal violence force the Defendant to act before he has time to consider an alternative and, more importantly, the jury had been instructed not to apply the doctrine if it believed that situation was reasonably foreseeable, not sudden, or created and/or contributed by Mr. Ferrara’s own negligence. 


01/12/18            Cornelio v. State of Connecticut, et al.
United States Court of Appeals, Second Circuit

An attorney turned sex-offender fails to comply with state law, is arrested, and brings a legal challenge to state law requiring sex offender address verification and a § 1983 claim for malicious prosecution

*This case is not yet available online; if you are interested, please contact me directly.

Plaintiff, a former attorney turned pro-se Plaintiff, appealed from a District Court’s dismissal of his § 1983 Complaint against the State of Connecticut, the Commander of the Connecticut Department of Emergency Services and Public Protection, an officer assigned to the Department’s Sex Offender Registry Unit, and two “John Does.”  In pertinent part, Mr. Cornelio alleged that the State maliciously prosecuted him when they took action against him for failing to return address verification forms that the State requires from sex offenders.  The District Court dismissed Plaintiff’s Complaint, finding that “the statute clearly and unambiguously sets forth sex offenders’ obligations and the actions to be taken by state officials in case of violation; the defendants complied with the statute’s clear requirements when Cornelio violated the statute [;] and Cornelio did not adequately allege that the defendants acted without probable cause or with malice.”

The Second Circuit affirmed the lower Court’s dismissal of Plaintiff’s claims. Specifically, the Court dismissed the malicious prosecution claim because Plaintiff failed to plausibly allege that the appellants acted without probable cause, which is a complete defense to a malicious prosecution action.  To support this finding, the Court cited the fact that the arresting officers had obtained an arrest warrant; that the warrant in question detailed Plaintiff’s alleged misconduct, which directly violated state law (failure to return address verification letters); that the warrant was issued by a neutral magistrate; and that there were no allegations in the Complaint that the descriptions of Plaintiff’s conduct, as set forth in the warrant, were misleading or false.  As such, the Court determined that Defendants had probable cause to arrest and prosecute Mr. Cornelio. 


01/10/18            Buckley v. Allied Barton Security Services, LLC., et al.
United States Court of Appeals, Second Circuit

A protestor brings malicious prosecution claims after he is arrested for trespassing…but also after admitting he was standing upon, and refused to leave, private property.

*This case is not yet available online; if you are interested, please contact me directly.

Buckley, a protester, raised malicious prosecution claims after he was prosecuted for trespassing.  The District Court’s granted summary judgment in favor of Defendants and the Plaintiff appealed to the Second Circuit.  The Appellate Court, outlining New York’s elements for malicious prosecution ((1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the proceeding and (4) actual malice) explained that the failure to establish each essential element causes the entire malicious prosecution claim to fail.  As such, a malicious prosecution claim must fail where Defendants had probable cause to initiate and continue the proceedings against the Plaintiff.   Importantly, the Court cited to case law that states that “false statements made by a civilian defendant [do] not vitiate probable cause because ‘probable cause exited for plaintiff’s arrest without any reference to the alleged statements.’”  Because statements by a witness and video recordings of the incident at issue established probable cause for trespassing (and because Plaintiff conceded that he was standing on private property when he and fellow protesters were directed to leave), the Second Circuit determined that the District Court properly dismissed Buckley’s Complaint.


01/09/18            Moco v. New York City Police Department
United States District Court, Eastern District of New York
A prisoner brings several pro se malicious prosecution claims for prior cases that resulted in dismissals.

Plaintiff, a prisoner on Riker’s Island, was transferred to the Central New York Psychiatric Center where he filed four pro se civil rights actions against the NYPD in federal court.   At the time of the Court’s ruling, two of the cases had already been dismissed.   In the first remaining Complaint, Plaintiff alleged that, in 2012, someone placed a gun and drugs in his car and caused him to be arrested, arraigned, and charged with criminal possession of a weapon and controlled substances.  A year later, the charges were dismissed and Plaintiff was released.  In his second Complaint, Plaintiff alleged that in 2014, police officers came to his house, dragged him outside, and threw him into the snow after his landlord filed a complaint against him.  Plaintiff goes on to claim that he was detained by the police for three days and paid $1,000 in bail before the charges were ultimately dismissed.

On Defendants’ motion to dismiss, the Eastern District dismissed both remaining malicious prosecution Complaints with limited leave to amend.  In granting Defendants’ motion, the Court found that Plaintiff failed to name the proper defendants and/or to properly identify the behaviors that violated his constitutional rights.

“Plaintiff’s allegations suggest claims for false arrest and malicious prosecution, which are cognizable under 42 U.S.C. § 1983.”  A § 1983 claim requires that Plaintiff allege (1) that the  offensive conduct was committed by a person acting “under color of state law” and (2) that the offensive conduct deprived a person of rights, privileges or immunities secured by the Constitution.  Therefore, to bring a §1983 claim, Plaintiff must demonstrate that each named individual is personally liable for the alleged harm.  A municipal entity, however, can only be liable under § 1983 if a plaintiff can show that a municipal policy or custom deprived Plaintiff of his constitutional rights. As such, proof of a single unconstitutional activity is not sufficient to impose liability on a municipality unless proof of the incident unless there is also proof that the incident was caused by an existing unconstitutional policy attributed to a municipal policymaker.

In both of his remaining Complaints, Plaintiff failed to properly allege the existence of an unconstitutional policy or custom sufficient to confer liability on the City for the NYPD’s behavior.  Moreover, because Plaintiff included “John Doe” defendants, but failed to identify any individual by name, job or title, physical description, or even by action that each defendant took, Plaintiff had also failed to state a claim against any individual defendants.

Nevertheless, because Plaintiff was a pro se party, the Court granted leave to amend the Complaint and directed the Plaintiff to:  (1) specifically name or identify by physical description or precinct assignment any individuals responsible for the alleged constitutional deprivations; (2) provide the location and date for all relevant events referenced in the Complaint; and (3) provide a description of what each Defendant did, or failed to do, in violation of Plaintiff’s rights.


01/02/18            Jones v. New York City Housing Authority
Appellate Division, First Department
Plaintiff raised a triable issue of fact as to his slip and fall on ice because he said he slipped and fell on ice (and because he produced an expert affidavit indicating this was possible).

The First Department affirms the denial of Defendant’s motion for summary judgment.  Even though Defendant established its prima facie entitlement to judgment by producing evidence, including the testimony of the supervisor of caretakers that the sidewalks were free of ice and snow when he arrived on the premises, Plaintiff raised a triable issue of fact in response.  Indeed, Plaintiff challenged Defendant’s initial showing with the opinion of a climatological expert who indicated that snow and ice could have been present and that Defendant would have had sufficient time to discover and remedy a hazard.  In addition to Plaintiff’s expert opinion, the Court relied upon Plaintiff’s own testimony that, before he fell, he saw partially covered ice that was “brownish and dirty,” indicating that the ice had been present for some time.  More importantly, despite Defendant’s attempt to argue that Plaintiff was unable to ultimately identify the cause of his fall (an error that would necessitate judgment as a matter of law in Defendant’s favor), the Court found that Plaintiff sufficiently identified the hazard when he testified that he saw ice on the ground when looking sideways after he fell, face down, onto it.



The Ups and Downs of Elevator and General Litigation
By: James L. Maswick


               This month, we are going to forego reviewing the latest elevator and escalator cases and this month review a decision from the Fourth Department regarding additional burdens and considerations defendants face when considering whether to conduct an Independent Medical Examination, commonly known as an IME.  A substantially similar version of this article, co-authored with Todd Bushway, ran in our sister publication, Coverage Pointers, in its last issue of 2017.  For those of you looking for the latest in elevator and escalator cases, check back next month for more information – that is, of course, as long as no other general litigation Decisions are handed down which demand further attention!


11/17/17            Porcha v. Binette
Appellate Division, Fourth Department
Fourth Department Expands Rights of Plaintiffs with Respect to Doctors Performing IMEs

By: Todd Bushway and James Maswick


The Fourth Department recently issued a decision that follows an earlier 2014 decision, decisions that have wide ranging consequences for those who regularly defend personal injury cases and for insurance companies and how they handle them.  Both cases address subpoenas duces tecum, issued by plaintiff’s counsel, for records relating to payments to doctors retained by the defense to examine and evaluate an allegedly injured plaintiff.  The records are sought for cross examination and impeachment at trial.

The most recent case, Porcha v. Binette [155 A.D.3d 1676, (4th Dept. 2016)] was issued by the Appellate Division in November; the 2014 case is Dominicci v. Ford [119 A.D.3d 1360 (4th Dept. 2014)]. Porcha is the first decision to cite to Dominicci.

For those of you who do not know, an IME is an examination of a plaintiff conducted at the behest of the defendant (the IME is commonly scheduled by either defense counsel or the insurance carrier for the defendant.  The purpose of the IME can vary – to verify and/or assess a plaintiff’s claimed injuries, any question or issues of causation, the interplay and or impact of a pre-existing condition, any future impact and limitations, the appropriateness of a course of treatment, as well as examine or investigate potentially fraudulent claims.  For those of you who work in the Workers Compensation and No Fault areas, IME’s are a key element in determining a carrier’s obligation for continuing treatment. In typical personal injury cases in New York, the particulars for noticing an IME are found at CPLR §3121 and 22 NYCRR §202.17.   An IME is not just an exam that results in written report - what happens frequently, as it did in this case, is that the defendant hires the IME doctor to also serve  as an expert witness at the time of trial. 

In Porcha, the defendants, through a company called LegalMed, had an IME conducted of the plaintiff.  The doctor who conducted the IME is noted in the decision to be employed by LegalMed.  The examining doctor was subsequently disclosed and identified as a defense trial expert.  This disclosure was met with subpoenas duces tecum, served upon the examining doctor, LegalMed and the defendant’s insurance carrier for billing and payment records to the IME doctor from all insurance carriers and counsel for a period of 5 years prior to the date of trial.

The named defendants and the nonparties (i.e. the doctor, LegalMed and the defendant’s carrier) all moved to quash the subpoenas.  This motion was denied, a denial upheld by the Appellate Division, Fourth Department on the basis that the records of payment to the doctor were relevant to plaintiff’s counsel’s cross examination of the IME doctor.

The Appellate Division’s 2014 Dominicci decision is similar.  In Dominicci, the defendant’s insurance carrier is identified as the entity that scheduled and notices the IME.  Upon disclosure of the examining doctor as a trial expert, plaintiff’s counsel served a subpoena duces tecum on the insurance carrier for all IRS 1099 forms or other records of payment to that examining doctor.  Again, a motion to quash followed.  This motion was denied by both the trial court and the Appellate Division, which held that such information is fair game for cross examination on the issues of bias or interest.

There are several distinctions between the Porcha and Dominicci decisions, even if not highlighted by the court in Porcha.  We here at H&F believe those distinctions follow issues that we saw (as we are sure other counsel did) in assisting our clients in addressing similar subpoenas served upon them in the wake of Dominicci.

In Dominicci the subpoena was served upon the carrier, which on its face, seems like the obvious starting point to show a particular IME provider is beholding to that carrier.  In practice, however, it is (a) not clear that the IME physician knows which insurance carrier may be behind a particular exam and (b) the insurance carrier is not likely making a direct payment to the IME physician.

In most cases, either the carrier itself or defense counsel schedules or notices an IME using a third party vendor, such as LegalMed, the provider identified in the Porcha decision.  While counsel and/or the carrier select the particular provider, there is no direct retention of that provider by counsel and/or the carrier.  The IME physician has entered into some sort of agreement with the IME vendor to coordinate any IMEs.  Counsel and/or the carrier send all medical and other records to the IME vendor, who provides them to the physician.  A report is then written by the physician, sent to the IME vendor, who then provides it to counsel and/or the carrier.  What insurance carrier may be behind the exam is not relevant in most cases and most likely is not identified in the materials sent to the physician.  Payment for the IME is made by counsel and/or the carrier to the IME vendor, who then pays the physician per the agreement between the physician and the IME vendor.  Trial testimony is typically scheduled and paid for in the same manner.  There is no direct payment by counsel or the carrier to the physician.

In the cases H&F handled post Dominicci, our motions to quash usually started with the fact that the carrier did not have any payment or other financial records of the type sought that would show how many exams a particular physician had performed for that carrier and how much the carrier had paid to any particular physician – all the records would show were payments to the IME vendor.

We believe that the facts in Porcha show an evolution in these types of subpoenas duces tecum, directly attributable to these issues.  The subpoena duces tecum is no longer limited to the defendant’s insurance carrier but includes both the IME vendor and defense counsel.  Those entities are more likely to possess records showing payments to the physician than the carrier itself.

Another distinction is that the Porcha subpoenas seek records related to work performed for or on behalf of all carriers and not just the carrier involved in the particular case.  Whether this is the case of a more aggressive counsel casting a wider net or a reaction to the responding entities inability to provide a carrier specific response cannot be gleaned from the case.

What does seem clear is that Porcha is an expansion of Dominicci, even if not described by the court as such.  More entities are now subject to plaintiff’s counsel’s subpoenas and the available records now cover all insurance carriers and/or counsel, as opposed to just those entities involved with the particular case.

We do feel that there are several issues that remain open under these decisions.   What information may the defense and/or the IME physician use to refute the inference of bias – can the particulars of any prior examination or report be identified and used?  Can the IME physician reference the number of IME cases it may handle against the volume and type of cases that provider may have in their private practice?  How does HIPAA affect any of this?  What rights does a defendant have to challenge a plaintiff’s testifying treatment provider or medical expert – is a defendant entitled to records showing how often that provider testifies for plaintiffs and how much money is received or records showing the frequency of testimony for a particular plaintiff’s attorney or firm?  How about records relating to referrals of patients?

Much remains to be seen and be assured that if further clarification comes from Decisions on these matters, we will update our readers!

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