Premises Pointers
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Volume I, No. 9

Thursday, February 15, 2018

A Monthly Electronic Newsletter




Greetings!  On Tuesday, the New York State Court of Appeals issued a significant decision on Facebook discovery, which makes clear that as a plaintiff you cannot hide behind a privacy setting, but as a defendant, you are still required to demonstrate the relevancy of your discovery requests.  The case is covered in this edition of Premises Pointers by attorney Marc Schulz (read more about Marc below) and a separate article prepared by attorneys Andrea Schillaci and Howard Altman, devoted exclusively to the decision, is attached. 


While February is only half over, it has already proven to be a busy and exciting month with the Super Bowl (congratulations Philadelphia Eagles fans!), Fat Tuesday (hopefully you all got to enjoy some king cake), Valentine’s Day and the recent nuptials of our own Anastasia Stumpf (last weekend), who is taking the month off from Premises Pointers while enjoying her honeymoon.  And adding to the excitement, I was lucky enough to see Hamilton at the Rogers Theater in New York City last week.  I’ve been asked if it’s worth the hype and whether it’s as good as everyone says it is.  My answer is a resounding YES!  The music, actors and history lesson were all fabulous.  If you have the chance to see the show, whether in NYC or elsewhere, I highly recommend it. 


This month we welcome guest contributor attorney Marc Schulz, who is a regular contributor to Labor Law Pointers.  Marc practices in the areas of New York State Labor Law, product liability and premises liability.  In his column, New York Discovery Angles and Municipal Law Highlights, he will be covering Tuesday’s Court of Appeals decision on the discovery of Facebook materials, along with several cases that will be of interest to our municipal law clients.  If you are not already receiving Labor Law Pointers, and would like to, Marc and Labor Law Pointers editor David Adams ([email protected]) would be happy to add you to the subscription list.  And contact Dan Kohane ([email protected]) if you would like to be added to Coverage Pointers.


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.   




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Jody E. Briandi
Hurwitz & Fine, P.C.

424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900

Fax:  716.855.0874

Email:  [email protected]
H&F Website:



New York Discovery Angles and Municipal Law Highlights

By: Marc A. Schulz [email protected]


Greeting Premises Pointers Subscribers! As this is my first guest appearance, I wanted to come out swinging and the newly decided Court of Appeals case Forman v Henkin made that easy. This case is a must read for those interested, as I am, in the discoverability of one’s Facebook account, whether private or not. The Court viewed one’s Facebook account as akin to medical records in that holding that although filing a personal injury action does not renders the party’s entire account automatically discoverable, there are factors for courts to consider, the most important of which is whether plaintiff’s account is reasonably likely to yield relevant material. Feel free to call us should you wish to discuss this case or any other that peek your interest.


I practice in our Labor Law department in addition to premises liability and product liability. As Jody highlighted, shoot either myself or our editor David Adams an email if you wish to subscribe to Labor Law Pointers where we review and analyze all four Appellate Division and Court of Appeals cases dealing with Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims. Hopefully all (if not most) of you already receive Dan Kohane’s Coverage Pointers. All of us are available to provide presentations, webinars, and practice pointers should you desire; just simply ask.


As we approach spring, I am excited that March Madness is almost here as I am a big basketball fan, college and pros. I am also gearing up for my annual basketball tournament. As an alumnus of the University at Buffalo School of Law, a bunch of us get together once a year in Springfield, Massachusetts to play in a tournament against other law schools with teams comprised of either current students or alumni. My goal remains the same every year; don’t get hurt and shoot until you get hot.




02/13/18            Forman v Henkin

Court of Appeals

Discoverability of Facebook, relevance, and whether privacy settings prevent the defense’s ability to obtain private posts

As a result of falling from a horse owned by defendant, plaintiff allegedly sustained a traumatic brain injury and cognitive deficits, including memory loss, as well as difficulties with written and oral communication. Plaintiff testified she had a Facebook account with “a lot” of photos of her pre-accident life but deactivated the account six months after the accident.


The defense requested an unlimited authorization to obtain plaintiff’s entire “private” Facebook, and plaintiff failed to respond. Defendant, as so often we must, moved to compel, citing plaintiff’s claims that she can no longer cook, travel, or play sports, and contending that the photos and messages she testified that she posted on Facebook would likely be material to these allegations and her claim that the accident negatively impacted her ability to read, write, word-find, reason and use a computer. In opposition, plaintiff asserted that defendant failed to establish a basis for access to the private portion of her account because the public portion contained only a single photo that did not contradict her claims or deposition testimony.


The trial court granted the motion to compel to the extent of ordering plaintiff to produce all photo of herself privately posted on her account before the accident that she intends to introduce at trial, all photos of herself privately posted after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. The trial court excluded the contents of any written posts either pre- or post-accident.


Only plaintiff appealed. The Appellate Division modified the trial court’s order by limiting disclosure only to posted photos plaintiff intends on introducing at trial and eliminating the authorization to obtain data relating to post-accident messages. Two Justices dissented, contending defendant was entitled to broader access and calling for reconsideration of that court’s precedent addressing disclosure of social media as unduly restrictive and inconsistent with New York’s policy of open discovery.


The Court of Appeals agreed with defendant in that the Appellate Division erred in using a heightened threshold for production of social media records that depends on what the account user has chosen to share on the public portion of Facebook. The High Court would not go so far as to hold commencement of a personal injury action renders the party’s entire account automatically discoverable.


Significantly, the Court rejected “a one-size-fits-all rule” concerning social media discovery but set forth factors for a court to consider upon judicial intervention. First, courts should “consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account”. Second, courts must balance “the potential utility of the information sought against any specific privacy or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the type of materials that must be disclosed while avoiding disclosure of non-relevant materials”.


For personal injury cases, “it is appropriate to consider the nature of the underlying accident and the injuries claimed and to craft a rule for discovery information specific to each. Temporal limitations may also be appropriate” and if sensitive or embarrassing materials of marginal relevance exist protection is available from the court by way of a motion for a protective order.


In applying these principles, the Court of Appeals held the Appellate Division erred in modifying the trial court’s order to further restrict disclosure as defendant more than established that plaintiff’s account was reasonably likely to yield relevant evidence both before and after he accident.


01/18/18            Farrugia v 1440 Broadway Assoc.

Appellate Division, First Department

Is removing a tank, without a contractual obligation to remediate or repair any preexisting floor openings, sufficient to constitute “launching a force or instrument of harm” where removal of the tank left an exposed an unprotected opening, without any warning, which caused plaintiff to fall?


The property owner retained Harbour as a general contractor for installing a new steam station. Months after Harbour’s work, plaintiff was changing a check valve pump in the building’s basement when he turned to grab a tool and his foot allegedly went into an opening in a metal “diamond plate” in the floor a few feet from the pump, causing him to fall. Plaintiff claims Harbour exposed the opening when it removed a tank covering it, thereby launching a force or instrument of harm by creating a dangerous condition or at least making it less safe than before.


Harbour admittedly removed the tank but asserted it made no structural changes to the metal plate or that it was inherently dangerous, and that it merely performed the work it for which it was hired. Harbour further claimed that once the metal plate without any opening was exposed, it was open and obvious since plaintiff previously saw it, took a photo of it and showed it the property owner’s manager.


Although a contractual obligation by itself generally will not give rise to tort liability in favor of a third party (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]), the trial court, as relevant here, denied Harbour’s motion for summary judgment dismissing the complaint.  A majority of the First Department affirmed the trial court’s denial of Harbour’s motion since it did not establish that the exposed opening was not only open and obvious, but there was no duty to warn, and the condition was not inherently dangerous. The majority held that while Harbour was contractually obligated to remove the tank, a reasonable jury could find that Harbour’s leaving an exposed and unprotected opening in the floor exposed, without any warning, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe because the tank covered or “at least made it difficult” for anyone to step into that area.


Justice Andrias’ dissent would dismiss the complaint against Harbour, an independent contractor, who proved it owed no duty of care to plaintiff because there was no evidence Harbour breached its contractual obligations or was negligent in the performance of its duties, and removing the tank was fulfillment of its contractual obligation.


02/02/18            Burke v City of Rochester

Appellate Division, Fourth Department

Failure to establish defendant’s work was negligent immediately after completion fatal to plaintiff

Plaintiff’s foot allegedly stepped through a snow covered “sinkhole” between the street curb and the sidewalk in front of her home. Plaintiff claims defendant may have created the sinkhole by improperly excavating and backfilling the area where she fell and thus created a dangerous or defective condition. The trial court denied defendant’s motion for summary judgment and granted plaintiff’s cross-motion to compel depositions. The Fourth Department unanimously reversed as defendant established it did not receive prior written notice of the allegedly dangerous condition, and plaintiff failed to set forth evidence that the sinkhole “was present immediately after completion of the work”. Thus, plaintiff’s cross-motion to compel certain depositions was denied as moot.


02/06/18            Kalsmith v City of New York

Appellate Division, First Department

Notice of one defect in the area is insufficient to constitute notice of a different defect which caused the accident


The trial court granted defendants’ motion for summary judgment dismissing plaintiff’s trip and fall action since defendants did not have prior written notice of the allegedly defective roadway condition as defendants’ reports showed the existence of potholes at the accident site about two years before the accident, and there was no proof that any of these defects were the cause of plaintiff’s accident.


The First Department unanimously affirmed as there is no evidence that defendants created the defective condition, and neither actual nor constructive notice of the defect may substitute for prior written notice under Administrative Code of City of NY § 7-201(c)(2).


02/07/18            Matter of Law Offs. of Cory H. Morris v County of Nassau

Appellate Division, Second Department

Hybrid prosecutorial and adjudicatory responsibilities does not completely exempt an entities disclosure obligations under the Freedom of Information Law (FOIL)


Petitioner made a FOIL request for records from the County of Nassau’s photo speed monitoring system. An administrative appeal thereafter granted in part and denied in part after petitioner’s request was denied. The trial court then denied his article 78 petition to compel production of records from the Nassau County Traffic and Parking Violations Agency (TPVA), finding TPVA is part of the judiciary and thus, its records do not constitute records of an “agency” under Public Officers Law § 86(3).


The Second Department reversed to the extent that a TPVA record exists concerning the non-adjudicatory responsibilities of the TPVA as it is not exempt from disclosure under the definition of “agency”. The trial court was directed to conduct an in camera examination of any TPVA records requested by petitioner and a new determination, including whether attorney’s fees may be warranted.


Retail, Restaurant and Hospitality Happenings Around

New York State and Beyond

By: Jody E. Briandi [email protected]


01/10/2018       Hanney v. Whilte Planes Galleria, LP.

Appellate Division, Second Department

Lack of proof regarding when last inspection conducted of staircase fatal to defendant on motion

Plaintiff was working on a mechanical system of the Galleria Mall when a step he was on cracked requiring him to jump in order to avoid falling.  He claimed that the Mall was negligent in its maintenance of the premises.   The Mall moved for summary judgment and argued it had no notice the steps were defective or that they had the potential of cracking.  There were no visible signs of a defect.  Despite this, the Court denied the motion because the Mall could not definitely establish when the steps were last inspected, which was fatal to their motion.  The court concluded the Mall failed to meet their burden due to the lack of proof of a last inspection and therefore did not even consider the sufficiently of plaintiffs’ opposition papers.


01/17/2018       Hedges v. East River Plaza, LLC, et al.

Supreme Court, New York County

Lawsuit filed against  mall tenants, mall owner, management company and security company due to incident that occurred in common area of shopping center

Plaintiffs sue to recover damages for injuries sustained by the Plaintiff as a result of being struck by a shopping cart which was hurled over a railing on the fourth floor of the East River Plaza Shopping Center by two adolescent boys. The plaintiff, who was on the first floor of the shopping center when she was struck by the cart, suffered severe, incapacitating injuries.  All defendants moved for summary judgment on various grounds.  The boys were arrested and convicted as juveniles of criminal conduct.  As to the mall owner and management company for the mall, the court stated that their duty includes an obligation to take reasonable precautions to protect tenants and visitors from foreseeable harm, including foreseeable criminal conduct by third persons.  As to the retail tenants, the court employed a premises liability analysis holding that the business owner’s duty generally does not extend outside a defendant’s premises over which it had no control, but stressed that whenever the public is invited into a store, the owner has a duty of providing the public with a safe means in ingress and egress.  Applying these principals and others, the court made the following rulings as to each defendant:

Store the plaintiff exited just before entering the common area where she was injured - the court determined the store had no connection or duty of care to the area where the incident occurred or toward instrumentality that injured the plaintiff.  Their motion for summary judgment was granted. 

Store where the juvenile boys left just prior to engaging in the criminal conduct – the court found no basis to conclude that the store had a duty to plaintiffs to prevent injury resulting from acts of the minor defendants occurring outside its premises, therefore issue of the foreseeability of injury resulting from expelling the boys into the mall need not be reached. 

Owner and operator of mall – the mall argued entitlement to summary judgment because the injuries were caused by the intervening actions of boys and not negligent on their part.  The court denied their motion based on questions of fact raised by evidence of prior reported incidents involving objects, such as rocks, candy, cans and garbage being thrown off elevated areas of the shopping center.  While these objects were significantly smaller than the shopping cart, there were also missing log reports leaving the court wondering if there were even more incidents of such occurrences. 

Store that owned shopping cart – negligence claim dismissed.

The security company – The court explained that “an injured plaintiff may recover as a third-party beneficiary of a security contract when a defendant security company fails to perform a duty imposed by contract when it appears that the parties to the contract intended to confer a direct benefit on the alleged third-party beneficiary to protect him [or her] from physical injury.”  Here, the court found the security company had a duty to plaintiffs as third-party beneficiaries and that plaintiffs were not required to establish that the circumstances of this case fall within one of the exceptions set forth in Espinal.


01/17/2018       Madonna v. Target Corporate Services, Inc.

United States District Court, Southern District of New York

Plaintiff who claimed a dangerous condition was created by the use of salt and sand (used to prevent a slippery condition due to snow and ice) survived summary judgment 

Plaintiff fell outside of defendant’s store and claimed that the salt and sand defendant used following a snow event resulted in a dangerous condition.  Defendant moved for summary judgment on the basis that the store’s use of salt and sand on the front sidewalk did not create a tripping hazard.  Defendant further submitted a surveillance video to prove that the plaintiff did not actually fall in the location of the salt and sand mixture.  The court disagreed with this interpretation of the video and in denying the motion determined a reasonable jury could conclude the salt and sand mixture was a proximate cause of the plaintiff’s fall.  The court further stated that it was not within its province to assess the plaintiff’s credibility as to the location of his call.  Regarding whether the salt and sand mixture constituted a dangerous condition, the court concluded the expert affidavit submitted by defendant was not determinative on the issue, but “may be a piece of evidence for the jury to consider.” 


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

By: Todd C. Bushway [email protected]


Welcome to mid-February, which to my mind is beginning of what I find the cruelest six or so weeks of the year.  For those of us residing in the wintery climes, now is the time that we begin to see sustained thaws and temperatures that routinely creep marginally above freezing.  Now calm down – it’s not that I dislike a little warmth – it’s the effect of that warmth I find disheartening – clean, white piles of snow rapidly become dreary grey mounds, full of accumulated trash, detritus and debris.  Sidewalks and roadsides are just dirty.  With the cleansing rains and greening of spring are nearly two months off, this bleak landscape wears on me.  Of course, if people want to help by at least picking up the trash (I know, you didn’t put it there) it would be greatly appreciated.


Musically things are picking up. For those looking for a new listen, check out The Record Company’s Give it Back to You or JD McPherson’s Let the Good Times Roll and Undivided Heart & Soul – I’m selling these as a healthy combination of bar rock and southern soul.   January 30th saw a spectacular show here in the Queen City by Jason Isbell his band, the 400 Unit.  I’m all in on Isbell - he is a tour de force – stunning song writing, a tight band and a masterful stage performance is all you could ask for.  The days of seeing Isbell in a club setting are long gone.  Shows coming up in the next couple of months include a pair of shows by a couple of punk legends – Drop Kick Murphy’s and the Descendents.  Never discount the cleansing effect of righteously loud guitars. 


Also on the bill are a several artists that fall into the ever widening “Americana” or “roots” music category.  The first weekend of May brings us Eilen Jewell – a double treat – her songs and the always sublime performance from her wholly underrated and longtime guitarist, Jerry Miller, served up from a classic orange Gretsch semi-hollow body guitar.  June brings a phenomenal double bill of Dave Alvin and Jimmy Dale Gilmore.  Both of these shows will emanate from the venerable stage of the Sportsmen’s Tavern, which on Tuesday night was named the venue of the year at the Ameripolitan Music Awards, ( ) which celebrate the aforementioned roots and Americana music.  This is a big deal for the club – they have been nominated before and share their nominations with well-known stages in locales such as Austin, Nashville, Kansas City and Brooklyn.  Not bad for a classic Buffalo bar turned musical nirvana.  If you are ever in town and you like traditional country, folk, alternative country, singer-songwriters and good old bar rock, check the place out. (   And if you pick the right date, you can see a performer that ought to be playing in front of a couple of thousand people, (for instance, Mr. Alvin and Mr. Gilmore)  instead of 20 feet away from you and who just might join you and your friends for a beer after.  I am always willing to serve as the expedition guide.


And now onto the cases.  First up is a pair of primary assumption of risk cases from New York’s Appellate Division, Fourth Department where the court denied defense motions for summary judgment.  We also look at a pair of cases addressing summary judgment motions under the limited services contract rule, made famous in the New York Court of Appeals decision Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 (2002). 


And remember, we love to talk –call us if you have a question about any of these cases, the underlying legal issues or what you ought to be listening to on your commute.  Thanks.  TCB


02/09/2018       Tauro v. Gary Gait and Syracuse University      

Appellate Division, Fourth Department

Primary Assumption of Risk – Question of fact where plaintiff hit by thrown ball during drill – throw different than what was expected in the drill.

Plaintiff was a member of the women’s varsity lacrosse team at Syracuse University.  Plaintiff was injured during a practice drill designed to work on fielding ground balls.  In the drill, Syracuse coach Gary Gait (Gait was a 4 time All-American at Syracuse as a player and member of the US Lacrosse National Hall of Fame), would throw/roll ground balls at the player.  Plaintiff alleges that during the drill Gait unexpectedly made a hard overhand throw, with the ball flying directly towards her, hitting her in the head.   Plaintiff claimed that throwing the ball in this matter during a drill meant to work on fielding ground balls was a “reckless” act by Gait.

               The university moved for summary judgment, arguing plaintiff’s claim was barred under the primary assumption of risk doctrine – that being struck in the head was a known risk in the sport of lacrosse and that by voluntarily participating as a member of the lacrosse team at practice, plaintiff had assumed the risk of being struck in the head.  New York’s Appellate Division, Fourth Department denied the University’s motion, finding a question of fact based upon plaintiff’s allegation, taken as true in deciding the motion, that the high throw was contrary to what was expected during the drill, and as a result, her coach had exposed her to an unexpected risk that she could not have assumed.

               What is interesting about the case is that had plaintiff been hit in the head by the ball during regular drill or game, the hit would have been considered part of the expected risk of the game and the claim barred.  Consider the following:  Spiteri v. Bisson, 134 A.D.3d 799 (2nd Dept. 2015) – Spectator assumed risk of being struck by ball after entering area around lacrosse field while practice was ongoing; Bukowski v. Clarkson University, 19 N.Y.3d, 353 (2012) – College baseball pitcher assumed risk of being hit by batted ball, even if practice conditions in gym were less than ideal; and Kaminer v. Jericho Union Free School District, 139 A.D.3d 1013 (2nd Dept. 2016) - High school baseball player assumed risk of being hit in the head by errant thrown ball while walking off field after completing a fielding drill during practice. 

I find it inconsistent that if plaintiff was standing on the side of the field, not participating in the drill, but was struck by the same ball thrown by her coach, her claim would be barred, but her claim survives when she was aware of the throw, albeit different than she expected.  If being hit by an errant ball is part of the assumed risk of a sporting activity that includes thrown and hit balls, it would seem that being hit by an errant throw when the player is at least aware that the ball is coming towards them should also be an assumed risk.


02/09/2018       Ulin v. Hobart and William Smith Colleges        

Appellate Division, Fourth Department.

Primary Assumption of Risk – Court denies defense motion for summary judgment, finding  a question of fact on question of whether plaintiff was provided adequate training to address the situation leading to her injury.

               Plaintiff Ulin was a college student at the defendant and enrolled in an introductory sailing class offered by the university.  The class was taught using small, single person sail boats.  During a class session, plaintiff’s boat capsized.  While trying to right the capsized boat, plaintiff was struck in the head when the boom (part of the sail) swung to one side.  Defendant moved for summary judgment, which was denied.  The court found a question of fact existed on whether the risk of being struck in the head by the boom in that circumstance was an apparent risk, focusing on whether the lack of any specific training in recovering a capsized boat and allowing the plaintiff to sail in the weather conditions present on the day of the accident “unreasonably increased the risks of sailing.” 

The decision does not include any description of the weather, so it is hard to comment on whether the conditions were such that it was unreasonable to allow sailors with limited experience onto the water.  I do find the question of fact on the lack specific training dealing with a capsized boat suspect.  On a sailboat, the boom is the bottom, horizontal bar or pole of the sail, mounted at a 90° angle to the mast and designed to move freely in either horizontal direction so that the sail can be positioned to catch the wind and thereby (hopefully, at least) propel the boat forward.  On many sailboats, especially smaller craft, the height of the boom above the deck is such that a sailor would have to duck down to avoid being hit by the boom as it was moved from one side to another.  Since the boom is both designed to move from one side of the boat to another and would be affirmatively moved by the sailor operating the boat, it seems unreasonable to suggest that risk would be somehow different when the boat was capsized versus normal sailing conditions – the movement of the boom and the area where the boom would move remain the same in either circumstance.


02/06/2018       Cardenas v. Somerset Partners, et al.   

Appellate Division, First Department.

Limited Services Contract – Question of fact where moving defendant failed to show it did not launch “an instrument of harm.”

               Plaintiff Cardenas was injured on a construction site when he walked into a recently installed floor to ceiling glass wall.  The company responsible for installing that wall moved for summary judgment on the ground that under its contract, it did not owe plaintiff a duty because that contract was a limited service agreement under which it was obligated to perform a single, limited part of the work and that it had completed its work in accordance with the contract. 

               New York case law holds that a contracted party whose contract calls for them to perform a certain limited or defined assignment or task (as opposed to taking control of the entire site or location) owes no duty to a plaintiff where it has properly completed the work called for under the contract.  There are three exceptions to this rule – where the contracting entity (1) has, by their actions or inactions, launched or created an instrument of harm or dangerous condition,  (2) the plaintiff has detrimentally relied upon a continuation of the contracting parties’ duties, and (3) where the contracting party has assumed or displaced another’s duties or obligations.

               In denying the motion, the court found questions of fact existed because the glass contractor had not established whether it was still on site at the time of the accident and whether it was responsible for installing or placing onto the glass wall marking tape, placed so that a person would be aware of the glass’ presence. 

               The practice point here is making sure that the moving party has put forth sufficient facts to show what its contractual obligations were and that they had been met – the court here is not stating that the glass company is not entitled to the defense afforded by the limited services contract doctrine – just that it did not meet its burden of proof on establishing that it met its contractual obligations.  The case does not provide enough detail about what proof the glass company submitted to support its motion, but it seems that the questions identified by the court would be questions that could have been answered through production of the subject contract and deposition testimony from the glass company and general contractor/owner on what was required under the contract and what had taken place by the time the accident occurred.


02/02/2018       Bush v. Independent Food Equipment, Inc.     

Appellate Division, Fourth Department

Limited Services Contract – Question of fact found on issue of whether moving defendant launched or created “an instrument of harm.”

               Plaintiff was a butcher employed by a grocery store.  He sustained injuries when using a meat grinder at his place of employment – the injury was caused by an electrical shock that occurred when plaintiff pushed the start button to operate the machine.  The moving defendant had been retained by the grocery store to perform repairs to the machine and had worked on the machine several times in the “weeks and months” ahead of plaintiff’s injury. 

               The defendant moved for summary judgment, arguing that it had been retained to only perform specific repairs to the machine and therefore owed no duty to plaintiff for the overall condition of the machine.  Plaintiff submitted an expert affidavit that stated the accident occurred because the machine had not been properly grounded and that the defendant’s employee had exacerbated the problem during one of the repairs.  The court found that the moving defendant had met its burden of establishing it did not owe plaintiff a duty because its contract was limited in scope.  The court then denied the motion, holding the plaintiff, through the expert affidavit raised a question of fact on whether the defendant had created a dangerous condition (i.e. “launched an instrument of harm”) by exacerbating the grounding issue.  My read of the decision is that the grounding issue was not precipitated the repair, but was secondary to a repair.

               The affidavit from plaintiff’s expert is clearly the key factor in creating the question of fact.  The court discusses at length defendant’s challenges to the sufficiency of the affidavit, ultimately finding the expert adequately supported his/her allegations.  The challenge to the affidavit focused on the inspection of the machine – arguing that there was no proof that the machine was in the same condition at the time of the inspection that it had been at the time of the accident and therefore the inspection could not be used to support the expert’s opinion.  It does not appear that the defense submitted an affidavit from its own expert.        

In rejecting the challenge to the expert’s affidavit, the court noted that the expert not only relied upon the questioned inspection of the machine, but also written materials from the meat grinder’s manufacturer, discovery and documents production and deposition testimony, including specifically deposition testimony from the moving defendant’s employee who had performed the repairs.

The court also rejected plaintiff’s claim of res ipsa loquitor - that the accident could only have happened through the negligent conduct of the defendant, a claim that would have required the defendant to have exclusive control over the machine. The court noted that the moving defendant established the absence of exclusive control by showing that it “did not own the grinder, did not have daily access to the grinder, and did not have an exclusive maintenance contract with the grocery store with respect to the grinder, and that the grocery store's employees disassembled the grinder nightly and reassembled the grinder each morning prior to its use.”   It is worth noting that this list of factors, offered here to show a lack of exclusive control of the grinder are the very type of things that a moving defendant both could and should detail to  show its contract called for limited, specific obligations and to reject any argument that the defendant had assumed duties beyond those in the contract.

From a practice standpoint, the focus has to be on making sure that the moving defendant provides proof on each element – not only that it did not owe plaintiff a duty, but that none of the exceptions to the limited services contract rule were applicable to this case.  It can reasonably be assumed that the allegation that the defendant’s employee had somehow exacerbated the grounding issue (as opposed to creating it) was known by all parties when the motion was made – failing to address that claim in its moving papers almost guaranteed the finding of a question of fact.


Toxic Exposures

By: V. Christopher Potenza [email protected]


Well, February is upon us and I am officially ready to declare “cold” a toxic substance.  February also brings my wife’s birthday and Valentine’s Day one week apart.   Your gift suggestions are greatly appreciated.  Speaking of birthdays, Happy (belated) Birthday to our very own Jody Briandi, who can now legally drink in the United States. 

This month’s winter themed Dad joke:

Where does a snowman keep his money?   In a snow bank.

A couple of interesting toxic tort decisions this month, including a spoliation case against a successor entity to asbestos supplier Johns-Manville addressing the foreseeability of future litigation decades later, and a defense victory on causation in a toxic mold claim.


While the spoliation decision is fact based and somewhat unique to an asbestos defendant (who took over the product line of a well-known bankrupt asbestos supplier Johns-Manville) given the long latency period between exposure and injury, I certainly foresee that this decision could have some spill-over into other areas of product liability. It’s always best to stick with a well-established document retention policy and not take the risk that a jury would be given the impression that something untoward was done to curtail future litigation.   Juries just don’t like that.  

01/18/2018       In re New York City Asbestos , Warren v J-M Manufacturing

Appellate Division, First Department

Spoliation charge given against successor to asbestos product line of Johns-Manville

The First Department affirmed the trial court order which granted plaintiff's motion for spoliation sanctions against defendant J-M Manufacturing Company, Inc. (JMM). 

In or around the 1990's, JMM lost and destroyed numerous bankers’ boxes containing the records of the manufacture, sale, and marketing of pipe which contained asbestos, a line of business it purchased from Johns-Manville in the 1980s. Although the first claim by an end user for personal injuries was not made with regard to that pipe until 2000, plaintiff adduced evidence that JMM was on notice that the records might be needed for future litigation given that the latency period for claims of asbestos related injury is often 15-150 years, and thus JMM's behavior constituted spoliation. JMM was well aware of the long history of personal injury claims arising from other Johns-Manville asbestos-containing products, and the Worker's Compensation claims filed by individuals who worked in the manufacture of the pipes at issue.

JMM contemplated the possibility of litigation, having entered into a litigation cooperation agreement with Johns-Manville at the time it purchased the pipe business, and internal memos from the 1980's show that executives and lawyers at JMM discussed the risk-benefit of continuing the product line, as well as the possibility that its insurance carriers would withdraw liability coverage for the product. Accordingly, the motion court did not abuse its broad discretion in directing that the jury be charged with an adverse inference at the time of trial.

01/11/2018       Colucci v. Stuyvesant Plaza, Inc.

Appellate Division, Third Department

Mold claim dismissed for lack of expert proof on causation


Plaintiff Lora Colucci was the owner and operator of a cosmetics franchise business that leased premises in a shopping plaza known as Stuyvesant Plaza. During the lease period, the premises experienced problems with its sewage system resulting in multiple floods and sewage backups, reportedly exposing plaintff and the premises to mold and raw sewage. Plaintiffs commenced this action against defendant for personal injuries and business income loss, alleging that exposure to raw sewage and mold caused various serious health problems and required her to close the business. After the close of discovery, defendant moved for summary judgment based upon, among other grounds, plaintiffs' complete lack of expert disclosure and failure to submit any expert proof that her injures and damages were caused by defendant's actions. After plaintiff was granted numerous extensions and adjournments, plaintiff filed papers in opposition to defendant's summary judgment attaching lay witness affidavits of plaintiff, a plumber, a certified service technician, and plaintiff’s treating physician. 

The Third Department affirmed the Supreme Court decision that the defendant established its entitlement to summary judgment dismissing the complaint based upon plaintiffs' failure and inability to prove causation.  On the issue of causation, defendant submitted the affidavit of Michael Holland, a physician specializing in occupational medicine and medical toxicology, who has extensively treated people exposed to toxic substances. Holland opined that “any theory of direct causation between sewage and mold exposure and the physical injuries [that plaintiff] is alleging, is novel and is not generally accepted within the medical or scientific community.” He further opined that exposure to mold at the level found at the premises “do[es] not cause injury or ailment of any significance or duration” and that the theories espoused by her treating physician, “are considered unsupported fringe theories” that have “no scientific support.” 

The Third Department held that the defendant made a prima facie case with expert proof establishing that it did not breach any duty to plaintiffs and that there was no causal relationship between plaintiff’s exposure to mold and sewage on the premises and her injuries or economic losses, shifting the burden to plaintiffs to tender proof that raises an issue of fact.   The Third Department affirmed the Supreme Court’s rejection of plaintiff’s treating physician’s affidavit as plaintiff never identified the treating physician as an expert pursuant to CPLR 3101(d)(1)(i), despite numerous court orders to serve expert disclosures.  Further, even had the treating physician been permitted to offer an opinion it was inadequate to establish causation. To prove causation due to exposure to toxins, such as mold or raw sewage as alleged in the negligence cause of action, the physician/expert was required to set forth the exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the alleged illness (specific causation).  In contrast to defendant’s expert’s opinion- plaintiff’s medical records are conclusory and vague and fail to establish specific causation, and the treating physician’s “expert” affidavit, submitted for the first time in opposition to defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records.  Furthermore, for these same reasons plaintiff’s economic loss claims also fail, inasmuch as they are premised upon the theory that defendant's breach of the lease by failing to repair the ejector pump caused health problems rendering plaintiff unable to work and requiring the closure of the business. Given plaintiffs' complete failure of proof on the issue of causation related to plaintiff’s health problems, the claim for resulting economic loss must also fail.

Homeowner Liability and Recreational Accidents

By: Tessa R. Scott [email protected]


Dear Readers:


I find that February 1st, although the start of a short month, is the exact moment that winter suddenly feels intolerable. Everyone in the office starts to change their screen savers to display tropical beach vistas. Yet, I am cheered by the fact that there appears to be more sunlight during the day.  It is a small indicator that spring flowers will bloom…eventually.  Admittedly, this year I am more excited for spring flowers than I have ever been because I planted well over 200 bulbs in my front yard last fall.  Fingers crossed most will make it through the winter.


Another source of mid-winter cheer is Anastasia’s recent wedding, which I was honored to attend.  When she gets back from her honeymoon I intend on asking her where she found a bakery that makes glitter encrusted donuts. Don’t worry, the glitter was edible.  However, if I am being honest…I didn’t stop to check before I ate one. 


Winter is a treacherous time for pedestrians, but not snow and ice is just the tip of the iceberg (I know, I groaned internally writing that). This week we have a host of clumsy plaintiffs who have tripped or slipped on sidewalks because of debris or defect.  In several of our cases below, plaintiffs alleged that they fell as a result of dangerous conditions on the floor or sidewalk they were traversing at the time of the fall.  As you may have guessed, everyone commenced motion practice.  Motions such as these can be a tad difficult because the Court is being asked to determine how dangerous something is, or what notice there was of the condition.  Determining how dangerous something is is usually a question for the jury. As you know, the jury is the decider of fact. Thus, proving to the court that something is, or is not, dangerous as a matter of law can be a difficult task. That challenge, however, does not stop anyone from trying.  


Good luck to all those gardeners out there and have a great week!




02/07/2018     Craig v Meadowbrook Pointe Homeowner's Assn

Appellate Division, Second Department

There is no cause of action in negligence against the owner of a dog who causes injury.

The plaintiff allegedly tripped and fell on an elevated piece of concrete on a pool deck in the condominium community known as Meadowbrook Pointe, located in Westbury. The defendant moved for summary judgment dismissing the complaint, contending that the condition alleged was trivial as a matter of law and not actionable.   It is well established that a property owner has a duty to keep the property in a "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Generally, the relative “dangerousness” of the defect and the safety of an area is a factual question.  As you may know, questions of fact are for the jury, and do not lend themselves to summary judgment motions.


However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance. Think something someone might stub their toe on.  “There is no "minimal dimension test or per se rule" that the condition must be of a certain height or depth to be actionable.”  The Court, must consider all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury." Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.’”


"A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact." Defendant submitted transcripts of the deposition testimony of the plaintiff and the assistant manager for the defendant's property management company, and photographs of the area where the plaintiff tripped and fell.  This was not enough to eliminate all question of fact.   However, Plaintiff, was unable to demonstrate entitlement to judgment as a on the issue of liability. The plaintiff failed to establish that the raised portion of concrete decking at issue constituted a dangerous or defective condition.


01/10/2018       DeBlasi v City of New York

Appellate Division, Second Department

Stipulations for settlement are binding.

In an action, Plaintiff allegedly sustained personal injuries  when he tripped and fell over a crack in the sidewalk abutting a property owned by defendant John Gannone. Plaintiff and his wife, who sued derivatively, also brought action against the City of New York and Winrock Plumbing, Inc., a contractor that performed work on a portion of the sidewalk. After discovery, Gannone and Wincock moved for summary judgment dismissing the complaint  against them.


In March 2015, the plaintiffs' attorney and the City's attorney agreed to settle the matter with respect to the City for $35,000. A stipulation of settlement was prepared and signed by the attorneys. Shortly therafter, the plaintiffs' attorney sought to renege on the stipulation because he had failed to inform the plaintiffs that the award would be reduced by a worker's compensation lien. The City, unsurprisingly wanted to enforce the stipulation. The Supreme Court denied the City's motion and  granted Gannone and Winrock’s motions for summary judgment.  The City then appealed. 


The Second Department agreed that Gannone’s motion for summary judgement should have been granted.  Administrative Code of the City of New York § 7-210, which shifted tort liability for injuries resulting from defective sidewalks from the City to the abutting property owners, does "not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.” Gannone demonstrated that he was exempt from liability by establishing that the subject dwelling was a one-family, owner-occupied residence. Gannone also established that he did not perform any work on the sidewalk prior to the incident, and that he did not create the alleged defect.

The Supreme Court also properly granted that branch of Winrock's cross motion which was for summary judgment because Winrock established that it did not create or cause the alleged dangerous condition.


However the Second Department determined that the Supreme Court erred in denying the City's motion to enforce the stipulation of settlement. Stipulations of settlement between parties are binding contracts.  The parties to a stipulation may have it set aside only for reasons which would allow a contract to be set aside, such as fraud, collusion, mistake, or accident.” There was no such evidence here.


01/24/2018       Irizarry v Felice Realty Corp

Appellate Division, Second Department

Defendants were unable to establish that they did not have notice of the defective condition at issue.

The plaintiff was injured when she slipped and fell in the bathroom at her workplace. The premises were leased by the plaintiff's employer from the defendant Felice Realty Corp. (“Felice”). The defendant Rentar Development Corp. (“Rentar”) was the managing agent for the premises. The plaintiff commenced this action alleging that she slipped on water which had accumulated on the bathroom floor as a result of a leak from a malfunctioning hot water heater. The plaintiff testified at her deposition that, shortly after the accident, both a coworker as well as someone wearing a Rentar uniform told her that there had been a leak in the bathroom the night before and it had been cleaned up.


The defendants moved for summary judgment arguing that Felice was an out-of-possession landlord and that the defendants had no notice of the defective hot water heater. The Supreme Court denied the motion, and the defendants appeal.


An out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty. Here, the defendants failed to establish their entitlement to judgment as a matter of law. They submitted a copy of the lease that called for Felice to remedy "any defective condition in any plumbing, heating system or electrical lines located in the demised premises" following prompt notice by the tenant.


Defendants, however, were unable to show that they did not have notice of the condition.  As such, they could not be successful in summary judgment.



01/24/2018       Steinberg v Astoria Warehouse Realty

Appellate Division, Second Department

Defendants were entitled to summary judgement where they neither created the defect nor had notice of same.

Plaintiff  alleged that he was walking on the sidewalk abutting property known as 19-57 49th Street in Astoria, Queens, when he stepped on a two-inch nail protruding from a large section of plywood construction fencing lying on the sidewalk. Plaintiff commenced this action against the Astoria Warehouse Realty, LLC (Astoria Warehouse) and Dromos Corp. (Dromos), the property owners and A.L.A.C. Contracting Corporation (A.L.A.C.) the site contractor.  All defendants moved for summary judgment dismissing the complaint.


Astoria Warehouse and Dromos established their entitlement to judgment as a matter of law. Contrary to the plaintiff's contention, those defendants demonstrated that they lacked constructive notice of the condition alleged.

Additionally, A.L.A.C. established its entitlement to judgment as a matter of law by demonstrating that it did not create the condition alleged or have notice. In opposition, the plaintiff failed to raise a triable issue of fact.


02/02/2018       Russell v Hunt

Appellate Division, Fourth Department

The separation of mere minutes between alleged dog attack incidents is considered one incident, not two separate attacks.

Plaintiff and defendant Dorien Garrett resided in neighboring apartments in Buffalo, New York. On August 31, 2014, Garrett was dog-sitting Lily, a three-legged pit bull owned by defendant Hunt, who was out of town. While Garrett and Lily were in the fenced-in backyard, plaintiff came into the yard with her dog, Chloe.


The two dogs lunged at each other, and plaintiff and Garrett separated the dogs. According to plaintiff, Lily attempted to bite Chloe during the initial confrontation. After the dogs were separated, Garrett was unable to restrain Lily, and Lily again attacked Chloe. Lily bit plaintiff on the arm while the dogs were being separated for the second time. Plaintiff commenced this action seeking damages for injuries that she sustained from the dog bite, asserting causes of action for negligence and strict liability.


The Fourth Department agreed with defendants that Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability based on her strict liability cause of action and in denying defendants' cross motion for summary judgment dismissing the amended complaint. Defendants established as a matter of law that they lacked actual or constructive knowledge that Lily had any vicious propensities.


We agree with defendants that the confrontation between the dogs was only one event, rather than two separate incidents as found by the court. Given the fact that only minutes passed between the two confrontations, we conclude that defendants did not acquire actual or constructive notice of any vicious propensities based on the initial confrontation.


02/02/2018     S.K. v Kobee

Appellate Division, Fourth Department

There is no cause of action in negligence against the owner of a dog who causes injury.

Plaintiff commenced this action for damages for injuries sustained by the infant plaintiff (hereafter, plaintiff) when a dog owned by defendants bit plaintiff's face.


The Fourth Department agreed with defendants that the court erred in denying their motion. It is well settled that "the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities." It is equally well settled, however, that, "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier." Thus, "[t]here is no cause of action in negligence as against the owner of a dog who causes injury, but one may assert a claim in strict liability against a dog owner for harm caused by the dog's vicious propensities when the owner knew or should have known of those propensities."


Here, defendants met their initial burden on their motion by establishing as a matter of law that they lacked actual or constructive knowledge that their dog had any vicious propensities.


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


So, loyal reader, I have to admit-I have been a little preoccupied. And I’m not talking about the fact that I strayed from my regular elevator and escalator column last month to discuss a matter of general litigation importance. No, it is because my wife and I are expecting our first child at the end of March. Things have recently gotten real at our house. For instance, we now have a crib set up a bedroom, a room now known as a nursery. I now walked in to the end of a baby shower. I carried lots and lots of gifts to a car. I’m the recipient of much unsolicited advice from anyone who finds out that we are expecting. Some say sleep now, because you won’t sleep for months. Others say space out the children. My retort? Can we get through one first!?


It is certainly an exciting time for us and we are thrilled to welcome a new edition into our household. My wife and I have made a decision which I did not think would be as controversial as it has been amongst friends and family. We have decided to not find out the sex of the baby ahead of time. Again, the reactions have been mixed. Some people have said “great, that’s the way it should be!” Others have expressed anger, I think because they wanted to buy something gender specific as a present. My favorite comment still goes to my high school buddy who was a man’s man, a college football player. When I told him that we were not going to find out if we were having a boy or a girl ahead of time, he was miffed that this meant we were depriving him of a gender reveal party. My tough and gruff friend told me his gender reveal party with his wife was “delightful” - Not words I ever thought I would hear him say! I told him that we were going to have the “original gender reveal party”, but not many people would be invited. I think he is still stumped as to what I meant.


This month we return to some new elevator decisions from the Appellate Division. As always, please feel free to reach out with comments, questions, suggestions or just to say “hey.” No, I still have never changed a diaper in my life, but that streak will soon come to an end!


01/04/2018   Dzidowska v. Related Cos., LP

Appellate Division, First Department

Defendant’s motion for Summary Judgment Denied in Misleveling Case.

The plaintiff alleged that after the elevator door opened and people exited the elevator into the lobby, the plaintiff went to enter the elevator when the car jumped up suddenly. This caused the plaintiff’s foot to get caught on the raised floor and plaintiff to fall into the elevator, sustaining injuries. There were three misleveling accidents with the very same elevator in the three months prior to the incident which injured the plaintiff. Testimony was provided that after each of these incidents, building staff notified the defendant elevator repair company of the misleveling incidents and the elevator repair company responded, performed repairs to the elevator and returned it to service. Both the owner of the building and the defendant elevator company moved for summary judgment.


The defendant building owner’s motion was denied because of what the First Department called “ample evidence” that the owner had actual notice of a reoccurring misleveling problem with the elevator. Since there have been multiple misleveling incidents of the same elevator previously, and since there have been an adverse inference charge issued because of the spoliation of potential video footage from a camera inside the elevator hours before the accident, the Court denied the defendant building owner conditional summary judgment on its cross claim for common law indemnification against the defendant elevator repair company. The Court found an issue of fact as to whether the owner’s liability was vicarious. The First Department indicated that the jury could find that the building owner was negligent either in failing to notify the elevator repair company or in failing to remove the elevator from service which would bar any application of common law indemnification from the repair company. The court also found the elevator repair company was not entitled to summary judgment due to the fact that a similar misleveling incident had occurred less than a week prior and the elevator repair company had serviced the elevator for that same issue. Lastly, the court found that res ipsa loquitur also precluded a grant of summary judgment for the defendants since misleveling is generally an issue entirely within the control of the elevator repair company. Simply because the elevator was regularly inspected and maintained did not lead to summary judgment for the elevator repair company.


12/20/2017  Goodwin v. The Guardian Life Ins. Co. of America, et al

Appellate Division, Second Department

Property Owner, Property Manager and Elevator Repair Company Overcome Claims of Spoliation of Evidence and Res Ipsa Loquitur to Achieve Summary Judgment and Dismissal of the Complaint.

Plaintiff was allegedly injured when he tripped and fell while entering an elevator. The building was owned by defendant Guardian (“Guardian”), managed by defendant Cushman and Wakefield, Inc. (“Cushman”) and the elevator was maintained and repaired by Nouveau Elevator Industries, Inc. All three entities were named as defendants in a complaint alleging that they had actual or constructive notice of the misleveling condition which caused the plaintiff to take a tumble. All three defendants moved for summary judgment and plaintiff opposed those motions and cross moved for summary judgment on liability under the doctrine of res ipsa loquitur and to strike the defendants’ answers for alleged spoliation.


The court found that both Guardian and Cushman were entitled to Summary Judgment; both submitted prima facie evidence showing they did not have actual or constructive notice of the misleveling condition by the elevator. The plaintiff failed to raise a triable issue of fact with respect to Guardian and Cushmans’ showings. The plaintiff’s expert affidavit was characterized as “insufficient to raise a triable issue of fact”, as the court stated it “was conclusary, lacking in foundation and speculative”. The plaintiff also failed to show that this misleveling accident was the sort of incident which did not normally occur in the absence of someone’s negligence.  Additionally, the elevator repair company also established its entitlement to summary judgment in that it lacked actual constructive notice of this alleged misleveling condition. The plaintiff also claimed spoliation on a part of the defendants, but the Appellate Division agreed with the Supreme Court’s declination to exercise its discretion to strike the answers, since there was no indication the defendants destroyed evidence intentionally, nor was the evidence particularly relevant to the plaintiff’s claims.  Summary Judgment was granted for all three defendants.


While I do not know what was put forth in the plaintiff’s expert affidavit, it is likely there were some significant holes which, if filled, could have possibly helped the plaintiff to avoid summary judgment. Misleveling cases frequently receive res ipsa loquitur treatment, benefiting the plaintiff and helping plaintiffs stave off summary judgment decisions dismissing their cases.  This case is instructive because courts most often conclude misleveling does not occur in the absence of another party’s negligence.  This case shows a plaintiff risks dismissal if the plaintiff’s expert’s affidavit does not provide the opinion for the court to conclude that the prongs of a res ipsa loquitur claim are present.  


01/30/2018  Bradley v. HWA1290 III LLC

Appellate Division, First Department

Electrocuted Elevator Maintenance Mechanic’s Family’s Suit Dismissed; Plaintiff Fails to Overcome Summary Judgment in Unwitnessed Death

An experienced elevator mechanic (“decedent”) died after being electrocuted in the elevator machine room while working alone.  Plaintiff was found in the elevator motor room hours after his death, lying partially inside the bottom of an elevator’s control cabinet, slumped over the metal plate covering the transformers. The plaintiffs commenced a wrongful death action against the defendants alleging common law negligence and violations of the Labor Law.  The defendants included the owner of the building and an elevator consultant retained by the building owner to manager the building’s elevator modernization product and to monitor the non-party decedent’s employer under its elevator maintenance contract with the owner of the building.  Notably, the New York City Department of Buildings Chief Elevator Investigator Douglas Smith testified that it appeared the decedent was electrocuted when his right arm came into contact with the middle of the three transformers. He stated that it was possible that the decedent had been reaching over and below the transformer when his arm and body made contact, but that this was “speculation”.


The plaintiffs alleged that the defendants were negligent because the lighting in the motor room was not adequate and that the transformer on which the decedent was apparently electrocuted did not have a cover. The Labor Law Section 200 requires land owners to provide a safe workplace and plaintiffs claimed that the light in the motor room was insufficient for decedent to work. A non-party elevator maintenance company employee, Melendez, testified that the lighting “wasn’t that good at all”. Plaintiff’s expert, Olsen, stated in an affidavit that the “poor lighting conditions would have created a safety hazard for decedent by impairing his ability to see his work area-including the uncovered transformers.” The court found that Melendez’s testimony was conclusory and faulted plaintiff’s expert Olsen for failing to opine that the lighting in the motor room “was not code compliant”. Since Chief Elevator Inspector Smith had found as part of his post-accident investigation that the lighting in the motor room was up to code, the defendants’ motion for summary judgment was granted for the claims based on inadequate lighting.


Plaintiffs also advanced Labor Law Section 200 and common law negligence claims based on allegations that a dangerous condition existed over the lack of the cover on the transformers. The Court noted that the issue was whether the defendants had actual or constructive notice of the allegedly dangerous condition or created the allegedly dangerous condition.  The Court noted that how the accident occurred was not necessary to find the answers to these inquiries and “the absence of any witnesses is of no moment.”


There was no dispute that the defendants had not created the condition, as they had not installed the elevator control cabinet. With respect to whether the defendants had notice to the alleged dangerous condition, the building’s property manager testified that he was not aware that there were any problems with the elevator control cabinet or that the transformers lacked the proper cover.   Both the city and the defendant consultant had inspected the motor room and not mentioned a lack of a cover. The defendant consultant’s president testified that no cover was required on the transformers because they were in an enclosed cabinet.


Defendants’ expert, a licensed professional engineer, named Jon B. Halpern, stated that there was, in effect, no way the building owner or elevator consultant could have recognized the absence of a barrier over the transformers without elevator component design experience. Further, the recognized custom in the elevator industry was to rely on New York City Department of Buildings as to whether further fixes or corrections were needed to equipment. The Department of Buildings investigated after this accident and did not issue a violation for the design of this controller. The controller also did not require a further barrier in 1997 when it was designed and manufactured.  The Court found that plaintiffs had failed to raise an issue of fact concerning actual or constructive notice, noting that the failure to offer any evidence of complaints made to the defendants of the lack of covers over the transformers or that the defendants should have known that this was in violation of a statute ordinance of regulation and a dangerous situation.


Plaintiffs relied on the American National Standards Institute (“ANSI”) regulations as evidence of notice of a dangerous condition. However, the Court displaced with this reliance on ANSI as improper, since Environmental Testing Labs, an independent tester/certifier of products in the elevator industry, found this elevator control cabinet to be ANSI-compliant. Further, plaintiffs had failed to establish defendants were required to follow the ANSI standards, as the ANSI standard had not been adopted by or incorporated into New York City’s elevator code and the ANSI standard itself was not a statute, ordinance of regulation. The majority opinion dispatched the rest of Olsen’s testimony as speculative and conclusory.


The dissent found an issue of fact as to whether the lack of safety covers over the transformers constituted negligence. The dissent found that proximate cause may be demonstrated in the absence of direct evidence of causation and could be inferred by the facts in circumstances which could be established. The dissent then reviewed the evidence in the case and found that it was more likely than not the decedent was electrocuted due to the defendants’ inability to shield the decedent from the transformers, finding this to be more likely than what it characterized as a “remote possibility that the decedent was electrocuted because he passed out or lost his balance or even failed to wear safety gloves.”