Premises Pointers - Volume II, No. 1

Premises Pointers
Watch your step!


Volume II, No. 1
Friday, June 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]

Anastasia M. McCarthy
[email protected]

James L. Maswick

Marc A. Schulz
[email protected]




Retail, Restaurant and Hospitality Industry

Slip and Fall Accidents

Snow/Ice Claims and Storm in Progress

Inadequate/Negligent Security

Inadequate Maintenance

Negligent Repair

Defective and Dangerous Conditions

Elevator and Escalator Accidents

Swimming Pool and Recreational Accidents

Dog Bites/Animal Liability

Negligent Supervision

Assumption of Risk

Limited Services Contracts

Indemnification Agreements

Tavern Owner Liability and Dram Shop

Homeowner Liability

Toxic Exposures

Municipal Liability



Welcome to our second year (Volume II) of Premises Pointers!  While we have a ways to go before we catch up to Coverage Pointers (I just read last night that Dan and the Coverage Pointers team are gearing up for their 20th year in publication), the Premises Pointers team is feeling accomplished with having our first year in the books. 

Now onto current events here at Premises Pointers…Marc Schulz has expanded his discovery angles column and will now be covering homeowner liability and recreational accidents.  So if you have a question about a dog bite, a swimming pool accident or discovery, Marc is your guy.  All questions and inquiries are welcome.  And as a reminder, my column covers retail, restaurant and hospitality related matters, Todd covers assumption of the risk, limited services contracts and school liability, Chris handles Toxic Torts, Jamey tackles elevator litigation and general liability, and Anastasia writes on snow and ice, dramshop liability and other “timely topics.”  This month she is reporting on a recent lawsuit filed stemming from the Pulse nightclub shooting in Florida. 

Todd’s column this monthcovers a school district case with a spoliation component, which should be of particular importance to any defendant that has a surveillance system, such as schools, retailers, hospitals, apartment buildings, restaurants, malls, etc.  Surveillance systems are more commonplace than ever and much more sophisticated than in the past, often times covering multiple angles of an event with increased clarity of the conditions.  Given these advancements, there is an expectation that surveillance material be preserved and moreover, that a sufficient amount of footage captured.  The risk for not preserving a sufficient amount of footage can range from monetary sanctions to a negative inference charge to a finding of liability.  Training of employees and setting policies for preservation are critically important in managing processes related to surveillance.  If you have any questions regarding the preservation of surveillance, we would be happy to answer them.  Call or e-mail!

As always, please feel free to share this newsletter with friends and colleagues.  If you are interested in being added to our subscription list, just send me an e-mail at [email protected].  And if would like to be added to Coverage Pointers e-mail Dan Kohane at [email protected] and/or Labor Law Pointers e-mail David Adams at [email protected].  I look forward to hearing from you!






Retail, Restaurant and Hospitality Happenings Around

New York State and Beyond

By: Jody E. Briandi [email protected]


05/16/18          Fuzaylova v. 63-28 99th St. Farm Ltd.

Appellate Division, Second Department

Landlord’s motion for summary judgment was granted on the grounds the landlord was an out of possession landlord who was not contractually obligated to maintain the premises – the right to renter is insufficient to impose liability

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at the entrance of a grocery store operated by the defendant A.  Defendant B moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that he was an out-of-possession landlord with no duty to maintain the premises.  The court reaffirmed that “[a]n out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a ‘duty imposed by statute or assumed by contract or a course of conduct.”  Here, defendant B established that he was an out-of-possession landlord who was not bound by contract or course of conduct to maintain the premises.  The mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises.  Thus, defendant B’s motion for summary judgment was granted.


06/04/18          Coelho v. S & A Neocronon, Inc., et al.

Supreme Court, Suffolk County, New York

Out of possession landlord argument failed in case involving slip and fall on sidewalk of strip mall because the lease was vague and questions of fact existed regarding maintenance obligations for of owner/landlord

Plaintiff claims injuries due to a slip and fall on ice on the sidewalk of a strip mall. On the date of the accident, plaintiff was working as a food delivery manager for a restaurant, which leases space at the strip mall. Defendants now move for summary judgment in their favor, contending that they are an out-of-possession landlord of the premises and that their written lease agreement required the restaurant to maintain the sidewalk adjacent to its establishment and to keep it clear of ice and snow. Defendants also contend that plaintiff cannot identify the precise defect that caused him to slip and that they lacked notice of the condition.  As held above, the court here stated that “[g]enerally, an out-of-possession landlord will not be held liable for injuries that occur on leased premises after possession of the property has been transferred to a tenant, unless the landlord retains control over the premises or is contractually obligated to repair unsafe conditions or itself created them.”    However, “when an out-of-possession landlord has retained sufficient control over the leased premises, he or she will be held liable for injuries to another if he or she affirmatively created or has actual or constructive notice of a dangerous condition for such a period of time that, when exercising reasonable care, he or she could have corrected it.”   In this case, it was determined that there were issues of fact “with respect to the nature and extent of defendants' residual control over the area where plaintiff's accident occurred and as to their constructive knowledge of the condition that led to it.  The Court ultimately concluded that the lease was not clear with regarding to what areas were common areas under the landlord’s control and what areas were not.  *unreported decision – please e-mail for a copy


05/23/18          Kataldo v. Atlantic Chevrolet Cadillac

Appellate Division, Second Department

Settlement in slip and fall case  falls apart and Court refuses to enforce

Plaintiff allegedly slipped and fell at an event operated by defendant.  Plaintiff’s attorney orally agreed to settle the case.  However, after the settlement was reached, the plaintiff refused to execute the settlement papers and retained new counsel.  The defendant moved to enforce the settlement, which motion was denied by the trial court and defendant appealed.  To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104.  In the instant case, counsel for the parties did not enter into a settlement in open court.  Furthermore, an "agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney.”  The plain language of CPLR 2104 requires that "the agreement itself must be in writing, signed by the party.  An email message may be considered "subscribed" as required by CPLR 2104, and, therefore, capable of enforcement, where it "contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature.  In this case, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement.  There is no email subscribed by the plaintiff or attorney.  The Court concluded that “in the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff.”

Practice Pointer:  Upon entering a settlement, obtain written confirmation from the plaintiff or her attorney.  It is not sufficient for defense counsel to send letter or e-mail confirming it.


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

By: Todd C. Bushway [email protected]


My wife and I bought our house out of a foreclosure in the winter of 2000.  When we toured and inspected the house, the a couple feet of snow and debris in the backyard made any clear view of what might lay belief nearly impossible.  That spring, after removing 25+ bags of leaves and other detritus, as well as several dead trees and talking to a few of our new neighbors, we discovered that two owners before us was a professional landscaper that had created a fairly extensive formal garden, planted primarily with perennials.  While completely overgrown (5 years of no maintenance will do that), the gardens and plants were mostly salvageable and a couple summers of work allowed us to create our own oasis.  This is my favorite time of year for the garden – everything is lush and growing like crazy, color abounds, the grill stands ready and chairs on the deck are just screaming for a lazy respite and a cold beverage or two.

Musically this month I don’t have anything new to suggest.  For whatever reason, my listening over the past several weeks has centered on live recordings, including a host of bootlegs and other recordings widely available on line.  An established band’s set list usually has several songs from their latest recording, a few older tracks and most, if not all, of their hits (or at least well known songs).  What I find most interesting are recordings from early in a band’s or artist’s career.  Those set lists draw heavily from the band’s first one or two records, and often a few covers just to fill out the show.  In just a few years, many of those songs will rarely, if ever, be played live again.  My favorites at the moment include a 1981 U2 show, recorded between the band’s first (Boy) and second (October) records - the set list is entirely songs from those two records, with none of the many hits that would come from the next three records.  I have also been jamming to a very early Smith’s show and some early Clash and Drive By Truckers.  Pretty cool stuff.

On to the cases. Rodriguez gives us an interesting application of New York General Obligations Law §9-103 (the state’s “Recreational Use Statute”). SM v. Plainedge is case with two teaching points – addressing negligent supervision following a 5th grader’s playground mishap as well as an evidence spoliation question for the school’s failure to preserve. Chamberlain is a good reminder that premises liability cases often rise and fall on more than one issue. And finally, Stillman, O’Toole and Osmond are all primary assumption of risk cases.


05/29/2018      Rodriguez v. City of New York

Appellate Division, First Department

New York’s Recreational Use statute (General Obligations Law § 9-103) applied to dismiss claims by motorcycle rider trespassing on the parking lots at Yankee Stadium.

Rodriguez v. the City of New York presents an interesting take on New York General Obligations Law §9-103, more commonly known as New York’s recreational use statute.  Briefly, that section removes the obligation for an owner, lessee or occupant of a property to keep that property safe for individuals using the property for certain enumerated recreational activities.  Rodriguez and several likeminded compatriots, during the offseason, entered onto the Yankee Stadium property in the Bronx for the purpose of riding ATV’s and motorcycles on the empty parking lots.  According to the court’s decision, this was a fairly common activity that had been going on for at least a couple of years.  Rodriguez sustained fatal injuries when he collided with an ATV.

Rodriguez’s estate then sued the City of New York, as owner of the stadium property, and the company with whom the City has contracted to operate the parking lots, described in the case as the lessee of the lots.  The claims against the defendants was that they were negligent in failing to secure the property by maintaining the perimeter fence and not undertaking adequate security or supervision to prevent trespassers access to the property.

On motion, the trial court dismissed the plaintiff’s claims on the basis that the City, as owner, as well as the lessee where entitled to the protection of General Obligations Law § 9-103. One of the considerations for the application of that statute is whether the property is “physically conducive” to the activity that produced the injury.  Here, the court found that the property, i.e. the parking lots, were conducive to riding motorcycles and ATV’s.  Because the City established that §9-103 applied, the burden shifted to the plaintiff to establish that the City, or its lessee, had acted in a willful or malicious manner, conduct that would preclude the City and its lessee from enjoying the protections found in §9-103.  The Court found that plaintiff did not meet this burden and the case was dismissed.

While “motorized vehicle operation for recreational purposes” is an activity specifically identified in §9-103, it seems to this writer that the application of § 9-103 to these facts might be a stretch.  The law was enacted to encourage property owners to allow the recreational use of their property by limiting the liability that owner (or lessee or occupant) might ordinarily face.  This is a claim against an owner of a rural or undeveloped property – this is a claim by an admitted trespasser onto developed property.  I highly doubt the protections afforded by § 9-103 somehow ‘encouraged” the City of New York to allow (or at least look the other way) trespassers on motorcycles and ATV’s to turn the parking lots of Yankee Stadium into some sort of urban off road race park.


05/23/2018      Osmond v. Hofstra University

Appellate Division, Second Department

Plaintiff voluntarily assumed the risk of her injuries while dunking a basketball during a dunk competition at a summer camp

Plaintiff attended a basketball camp at Hofstra when she allegedly was injured while dunking during a dunk competition. The trial court denied the school and the summer camps’ summary judgment motion dismissing the complaint. The Second Department reversed, finding defendants established that plaintiff assumed the risk of injury by voluntarily participating in the slam dunk competition, and rejecting plaintiff’s expert affidavit which failed to raise a triable issue of fact as to whether plaintiff assumed the risk of her injuries.


05/30/2018      O’Toole v. Long Island Junior Soccer League

Appellate Division, Second Department

Primary Assumption of Risk – Speculative expert affidavits will not defeat a motion for summary judgments.

This pair of cases illustrate the need to ensure that proof submitted in response to a motion for summary judgment is more than just cursory – it needs to be substantive and on point.

O’Toole was an experienced youth soccer player who was injured when he tripped on a metal drainage grate adjacent to the field.  He was retrieving a ball that had gone out of bounds during the game.  He acknowledged that he was aware of the drainage grate.  The court also noted that the grate was open and obvious, partly because of its color.

Osmond was injured when she attempted to dunk a basketball during a dunking competition at a summer basketball camp run by the university.  She claimed negligent supervision was a cause of the accident.

In both cases, the defendants moved for summary judgment – the O’Toole defendants were successful at the trial court, while the Osmond defendants had their motion denied.  On appeal, the Appellate Division, Second Department upheld the O’Toole decision and reversed the Osmond decision and granted those defendants summary judgment.

In upholding the O’Toole decision, the court found the defendants met their initial burden that the plaintiff had assumed the risk, pointing to his acknowledgement that he was aware of the grate’s presence and, based upon photographs in the record, what it deemed the open and obvious nature of the grate.  The court then found that plaintiff failed to establish a question of fact, and that the expert affidavit submitted in opposition to the motion offered only “speculative” opinions.

The Osmond court did not include much in the way of facts in support of its decision, but the cases cited in support of their ruling do shed some light on the court’s thinking.  The court found  the defendants had met their burden of proof on their primary assumption of risk motion – i.e. that the plaintiff had assumed the risks of the dunk contest (since there is no suggestion of an equipment or other physical defect, I am assuming plaintiff fell or landed badly).  The court the addressed the affidavit submitted by plaintiff’s sports expert, finding it did not create a question of fact. 

There is no detail as to what was included in the affidavit, but the pair of primary assumption of risk cases cited to by the Osmond court address the sufficiency of expert affidavits offered in opposition to defense motions and provide some context.  Those cases included allegations that the area where the activity was conducted was inappropriate and that the supervision provided was inadequate.  The plaintiff’s expert affidavits in those cases were found lacking because they were conclusory and speculative and failed to identify or specify industry standards, studies, regulations or other objective basis to support the opinion of wrongdoing.  The expert opinions were also faulted for not providing any explanation or proof that the type of location or facility they suggested would be appropriate for the activity would in fact be safer than the one in the case at hand.

The practice point here is to understand what substantive proof is needed to either support or oppose a motion for summary judgment.  Where experts are retained and affidavits prepared, counsel who relies on the expert to provide an opinion that meets the necessary legal threshold does so at his/her peril.


06/13/2018      SM v. Plainedge Union Free School

Appellate Division, Second Department

Part One:  Negligent Supervision of a 5th grade known “trickster.”

Plaintiff was a 5th student who was injured when he fell, during a lunch time recess, from the monkey bars in his school’s playground.  Video surveillance (see Part Two below) showed that the plaintiff fell after he attempted, while on the top of the monkey bars, a cartwheel to a handstand, followed by a “swinging dismount” to the ground.  The video showed that plaintiff was injured while attempting the maneuver a second, apparently not content to rest on his laurels after successfully completing the sequence on his first attempt. Clearly plaintiff needs to gain better awareness of what is a step too far and when to walk away.  Stop after the successful execution of the stunt and he’s the talk of the playground.  Attempt it a second time and he is still the talk of the playground, just now for another reason.

Plaintiff and his parents sued the school, claiming a lack of adequate supervision was the cause of his injury.  Testimony from one of the 3 aides present at the playground for the recess period included a statement that plaintiff was a known “trickster” who had drawn the ire of the school staff for “inappropriate use of playground equipment.”  The aide further testified that had she seen what he was doing, she would have “absolutely” stopped plaintiff, with a trip to the principal’s office his reward.

The school moved for summary judgment on two grounds – that it had provided adequate supervision and that the injury resulted from a spontaneous and sudden event that no reasonable level of supervision would have prevented the injury.  Noting that questions of supervision are generally left to the trier of fact to determine, the appellate court upheld the trial court’s denial of the school’s motion.  In making that ruling, the court pointed to the plaintiff’s alleged past conduct and whether his “reputation” warranted a higher level of supervision.  The court, without any specific reference, held that the school had not met is burden of establishing the event was so sudden that reasonable supervision would not have prevented the injury.  I’m speculating, but I’ve got to believe that the fact the injury occurred on the erstwhile acrobat’s second attempt at the maneuver didn’t help the school on that argument.


Part Two:       Evidence Spoliation – When Does the Duty to Preserve Evidence Arise?

As noted above, the school district had video of the incident, taken from a school security camera.  The problem was that the district preserved only 24 seconds of video.

In response to the school district’s motion for summary judgment, which included that video as evidence in support of the motion, the plaintiff cross moved for sanctions against the district for its failure to preserve a more complete portion of the video, which would have shown more of what had happened prior to the injury. 

The court’s analysis began with assessing whether the plaintiff, as the party seeking the sanctions, had established that the school district, as the party in control of the disputed evidence:

  1. Had a duty or obligation to preserve the evidence;

  2. That the school district had destroyed or failed to preserve the evidence with a “culpable state of mind” (defined to include ordinary negligence) and

  3. That the destroyed or disposed of evidence was relevant to the party’s claim or defense.

Although the appellate decision doesn’t indicate how long after the incident the school disposed of the full video, the court found that when the school district disposed of the video at a time when it was obligated to preserve the tape.  It should be noted that the court does note that the destruction of the full tape was “passive” – the district “permitted” the destruction of the full tape after saving the 24 second segment.

Noting the extent of the injury and the district’s employees’ immediate documentation and investigation of the incident, the court held that the district was “clearly on notice of possible litigation” and therefore was obligated to preserve a more extensive portion of the surveillance.

The sanction(s) for evidence spoliation is left to the discretion of the trial court, and here the court found the trial court’s determination that a negative inference charge against the district at trial was an appropriate sanction.

The clear trend in this area of the law is the obligation to preserve arising when the party should have reasonably anticipated litigation was possible.  This is a departure from the days when the duty arose when a party was put on notice to preserve materials or other evidence. 

The practice point here is obvious – err on the side of caution and keep all materials that might show or document an incident.   Most contemporary surveillance systems save the video or pictures in a digital format, allowing for easy transfer and storage.  With surveillance systems so common, one has to expect in today’s litigation environment most parties will look to determine what surveillance might have captured the event and expect that material to have been preserved.  Since the review will almost always take place at a time when gathering the evidence is no longer possible, having saved more than was perhaps necessary will always trump not preserving what was necessary.


06/13/2018      Chamberlain v. Church of the Holy Family and Immaculate Heart Schools

Appellate Division, Fourth Department

Snow and ice slip and fall case is a primer on a whole host of premises law issues.

The case arises from a snow and ice slip and fall in a parking lot owned by the defendant church.  Plaintiff parked her car near a snow pile created by the church’s snow plow contractor.  Upon exiting her vehicle and moving to the rear of the vehicle to remove several items, plaintiff slipped and fell, striking her head.  She alleged that the location of the snow bank, the incline in the area where the snow bank was placed and the accumulated ice in the parking lot constituted dangerous conditions.  Plaintiff sued the church, who commenced a third party action against its snow removal contractor.  The case came before the Appellate Division, 4th Department following motions for summary judgment by the church and the third party defendant snow removal contractor.

I count six (6) different premises liability issues touched on by the court in its decision.  The issues addressed are:

  1. Whether the alleged dangerous conditions were the proximate cause of the plaintiff’s fall and injury;

  2. Whether the defendant church had constructive notice of the presence of the ice;

  3. Whether the defendant had actual notice of the alleged dangerous conditions;

  4. The rule that where actual notice of a recurring dangerous condition is constructive notice of each specific recurrence of the condition;

  5. Liability of a party who has entered into a limited services contract (i.e. Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 (2002)) and the claim that the snow plow contractor had launched an instrument of harm by placing the snow pile at the specific location in the parking lot;

  6. Whether the church was entitled to indemnification under its agreement with the snow plow contractor and the question of whether the injury arose from an action or non-action solely within the province of the contractor.

While the analysis of each issue may be somewhat brief and no new ground is broken on any of the issues, the case is a reminder that myriad questions might arise from what seems at first blush to be a rather straight forward fact scenario. 


06/8/2018        Stillman v. Mobile Mountain, Inc.

Appellate Division, Fourth Department

Primary assumption of risk and whether the injury was caused by hidden or concealed risks or by intentional or reckless conduct by the defendant.

One of the cool aspects of residing in western New York is the summer festival season.  From June to October, the calendar is jam packed with festivals of every sort, with the Buffalo Greek Festival, usually held on the first weekend of June serving as the kick off.  The festivals come in all sizes and include events celebrating a wide variety of ethnic groups, historical events, foods, music, art, agricultural harvests, gardens, church fetes and picnics, the US/Canada relationship, wine and beer and county fairs, just to name some of the celebrations. 

The Eden Corn Festival is a Western New York institution, dating back to 1963.  As the name implies, the festival celebrates the sweet corn harvest, a major crop for the town’s many farms.  Besides allowing consumption of just picked sweet corn, the event features other activities as well, including a climbing wall the year plaintiff Jacob Stillman attended.

The climbing wall was part of the rides and amusements included in the festival.  Stillman fell about 18 feet to the ground when a carabiner that was part of Stillman’s safety harness detached.

The defendant owner of the climbing wall moved for summary judgment under the primary assumption of risk defense, arguing that the risk of falling was one assumed by Stillman through his voluntary decision to participate in the climbing activity.  The Appellate Division, Fourth Department upheld the trial court’s denial of the motion, finding that the defendant had failed to meet its burden of establishing that the risk of falling from the climbing was inherent in the activity.

It seems to me that the risk of falling is fairly obvious to anyone who chooses to leave terra firma by climbing – be it a tree, fence, wall, etc.  I could not find the case in the NYSCEF electronic filing database and therefore can’t provide any background on what led the court to reach its conclusion.


Toxic Exposures

By: V. Christopher Potenza [email protected]

Well, it’s mid-June and there is only one week left of school.  There serenity and routine of having your kids watched and accounted for most of the waking day will now descend into chaos.  Over-priced camps, grandparents, and i-pads will be the new norm.  There will also be lots of ice cream, since my kids now believe they deserve ice cream anytime the temperature hits 70 degrees.  They can barely read, but they know how to check the weather app on my phone…

If you are interested in developments in the law of toxic torts, then keep reading for sure disappointment.  There are just two lead paint decisions this month each addressing the reasonableness of lead abatement following notice of the condition.

For those with asbestos cases in upstate New York, it appears as though a deal has been reached to keep Justice Richard T. Aulisi presiding over the asbestos dockets as a J.H.O. for the 3rd, 4th, and 6th judicial districts.  This is excellent news for all parties involved as Justice Aulisi does a masterful job of managing a very large, complex, and fast-paced docket over a wide geographic area (with an abundance of “interesting” personalities thrown into the mix). 

This month’s dad joke:

Who is the shark rooting for in the World Cup?  Fin-land!


05/15/18          Brown v. Webb-Weber

Appellate Division, First Department

Seven month time frame for lead-paint abatement after first notice is not a “reasonable” time entitling defendant to summary judgment.

The First Department affirmed as the primary defendant's motion for summary judgment was denied, and the third-party defendant's motion was granted.  The record demonstrated that lead abatement in the premises owned by defendant in which plaintiff resided between the ages of one and five did not start for more than seven months after plaintiff was diagnosed with an elevated blood-lead level and the Westchester County Department of Health confirmed the existence of lead-based paint at the premises. Contrary to defendant's contention, the fact that she obtained a grant and Westchester County managed the abatement, without more, does not entitle her to judgment as a matter of law.  The third-party defendant however established prima facie that he cannot be held liable for plaintiff's injuries. Before moving to the premises owned by defendant, plaintiff lived in an apartment owned by third-party defendant for approximately one year, during which his blood-lead levels were well within normal range and he did not exhibit any developmental delays readily attributable to exposure to lead. In opposition, defendant failed to raise an issue of fact and her argument that courts have found that even low blood-lead levels can be injurious is without merit.  


05/17/18          PL, Etc. v  506–510 ASSOCIATES, LLC

Appellate Division, First Department

Defendants failed to establish that they acted reasonably to remediate lead paint hazard.

While there are very few facts to ascertain in the opinion, the First Department affirmed that the defendants failed to establish prima facie that they acted reasonably under the circumstances to timely remediate the lead-based paint condition in plaintiffs' apartment and/or to move the infant plaintiff to another apartment based upon the violations that existed at the time that defendants took control of the building.


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

By: Anastasia M. McCarthy [email protected]


Dear Readers,

Earlier this week marked the second anniversary of the Pulse nightclub shooting in Orlando Florida.  Only a few days before, survivors and relatives of those killed in the attack filed a federal lawsuit against the City of Orlando and an individual Orlando police officer who abandoned his post on the night of the attack.  Interestingly, the plaintiffs include at least one responding police officer who was traumatized as a result of the incident as well as a number of persons who claim that they were unlawfully arrested in the chaos following the attack.  While reading recent news stories about this new suit, I was reminded that a prior lawsuit had been filed in federal court against Twitter, Google, and Facebook and I took a look to see if I could find its outcome.  The following is a brief rundown on the District Court decision to dismiss the case, which is particularly notable for its rare discussion of the difference between moral/ethical culpability and legal culpability.   


03/30/18          Crosby et al. v. Twitter, Inc., Google, Inc., and Facebook, Inc.

(E.D. Michigan, Southern Division)

*Copies of this decision are available upon request.

Victims and family members of the Pulse Nightclub shooting brought suit against three social media companies alleging that the companies’ social media platforms were used by terrorist organizations and hate groups to spread harmful messages of violence that ultimately inspired, caused, and/or contributed to the nightclub shooting. 

On June 12, 2016, Omar Mateen killed 49 people and injured 53 more at Pulse Nightclub in Orlando, Florida. Shortly thereafter, plaintiffs initiated a lawsuit against Twitter, Google, and Facebook, alleging that the social networking companies had allowed terrorist groups, such as ISIS, to utilize their social media platforms to recruit new members, raise money, and spread messages of violence and hate that ultimately resulted in a terroristic act. Specifically, plaintiffs argued that the defendants provided ISIS a method to communicate with the shooter, Mateen; a method to hear the terrorist organization’s messages through the internet and become radicalized. Defendants did not dispute the fact that members of ISIS maintain accounts on their various social networking platforms and actively publish media and messages encouraging others around the world to commit violent acts of terrorism; claiming responsibility for violent terrorist acts around the world; and actively soliciting donations from those sympathetic to its cause. 

Notably, plaintiffs’ allegations included, among other things, that defendants place and profit from targeted ads on web pages that feature content from ISIS accounts.  For example, Google, through its YouTube platform, places advertisements on videos and accounts where ISIS videos are posted and played.  Generally, YouTube shares the ad revenue derived from the videos of individual account holders with the owner of the account in question—in this case, members of ISIS.  Plaintiffs therefore argued that this monetization arrangement results in direct payments to ISIS affiliates operating YouTube accounts.  Moreover, despite public appeals to remove these accounts, defendants were unable or unwilling to permanently delete known ISIS accounts and it was noted that any accounts that were removed, reappear within hours or days.

Shortly after the Pulse Nightclub shooting, ISIS officially claimed responsibility for the incident, dubbing Mateen an “Islamic State fighter.” During the FBI investigation that followed, investigators concluded that, beginning as early as 2012, Mateen had been “self-radicalized” over the internet, watching “jihadist sermons” and downloading “jihadist material,” including videos of beheadings.  Eventually the FBI determined that Mateen had been viewing ISIS videos on YouTube.

By their Complaint, plaintiffs raised causes of action under the Federal Anti-Terrorism Act (ATA) and Justice Against Sponsors of Terrorism Act (JASTA), claiming that defendants provided material support to international terrorists and terrorist.  The ATA provides a private cause of action for “any national of the United States” who is killed or injured by “an act of international terrorism.”  Such a claim may be made against “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person whom committed [an] act of international terrorism.”  And, to raise a valid ATA claim, plaintiffs must plead three elements-(1) the commission of an international act of terrorism; (2) harm to plaintiffs, as nationals of the United States; and (3) a proximate causal link between the violation and the harm.

In the case at bar, the Court found that plaintiffs failed at the very first prong--classifying the nightclub shooting as an act of international terrorism.  Establishing that the event at-issue constituted an international act of terrorism requires the pleading party to set forth facts showing that the incident (a) violated federal or state criminal law; (b) was intended to intimidate civilian populations or influence government policy through intimidation; and (c) occurred mostly outside the United States or “transcend[ed] national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.” The Court found that plaintiffs fell short of plausibly suggesting that Mateen’s “shooting spree” occurred mostly outside of the U.S. or “transcended national boundaries” since it was undisputed that the attack was carried out by a single shooter and that both he, and his victims, were all located in and residents of Florida.  Ultimately, the Court determined that “the only allegations…even hinting at some trans-national connection are those concerning Mateen’s viewing of videos and internet content that the plaintiffs contend were posted by agents of ISIS.  But the complaint fails to assert any facts plausibly suggesting that the substance of those videos and other messages, or posting of them, had anything at all directly to do with the shooting, other than that the principles espoused in them motivated Mateen to carry out the dreadful act.”

The Court also determined that plaintiffs failed to meet their burden under JASTA to set forth facts that defendants “aided or abetted” or conspired with Mateen.  Notably, the aiding, abetting, and conspiracy provisions were added to the Justice Against Sponsors of Terrorism Act (JASA) only 18 months ago, and essentially served to expand liability under the law to anyone who aids, abets, by knowingly providing substantial assistance to, or conspiring with, the perpetrator of an act of international terrorism resulting in harm to plaintiff.   Setting forth a valid cause of action under JASTA requires plaintiff to, similarly, prove three elements—(1) the party whom defendant aids must perform a wrongful act that causes injury; (2) defendant must generally be aware of his role in an illegal or tortious activity at the time the assistance is provided; and (3) defendant must knowingly and substantially assist the principal violation. A number of factors are taken into account to determine whether or not the assistance in question is sufficient to be considered “substantial”, including the nature of the act encouraged; the amount of assistance provided; defendant’s absence or presence at the time of the tort; defendant’s relationship to the principal; defendant’s state of mind; and the period of defendant’s assistance. 

In the case at bar, the Court again determined that plaintiffs’ pleading was insufficient, having only pled that defendants’ maintained social media platforms that enabled ISIS to spread its message and that ISIS’s message reached Mateen online. According to the Court, Plaintiffs wholly failed to allege facts showing (plausibly) that defendants knowingly supplied support or encouragement to Mateen in a manner that encouraged his commission of the shooting—indeed, it was undisputed that none of the defendants, their employees, or agents, knew anything at all about Mateen or his plans. Similarly, plaintiffs failed to support “naked assertions of conspiracy” with any facts to support a theory of a common plan or scheme between defendants and Mateen.  More importantly, the Court opined that defendants did not provide “material support” to ISIS by allowing its operatives, or Mateen, to access to the social media platforms because the allegations of the Complaint did not ultimately establish any pre-incident, tangible, connection between ISIS, Mateen, and the shooting. Indeed, even by the allegations set forth in the Complaint, it appears that no entity or agent of ISIS knew anything about the attack, or had any contact with Mateen, before the shooting occurred. Plaintiffs’ argument that providing ISIS with access to the platforms at-issue, in order to spread ISIS’s message, was therefore deemed insufficient to establish the substantial aid/material support elements.

Finally, the Court determined that even if the Complaint had contained plausible factual allegations that defendants, aided, conspired with, or even supported ISIS, those allegations would still be insufficient to state a cause of action under the ATA because plaintiffs set forth no facts supporting a conclusion that the defendants’ conduct proximately caused the death and injuries alleged. The allegations that Mateen viewed ISIS literature and videos were not sufficient to sustain an inference that defendants, or even ISIS, had any discernable, direct involvement in the Pulse nightclub attack. Instead, the allegations of the complaint state, at most, that defendants were “merely aware of a generalized risk that persons associated with or sympathetic to ISIS’s cause could, at some point, derive some benefit from their services, and that, at some point…ISIS became aware of and expressed its approval of the attack.  Those tenuous connections do not suffice to sustain the required proximate cause.”

 Ultimately, the Court sided with defendants, stating “[t]here are many conclusions that can be drawn from the facts alleged in the amended complaint about the ethics and moral responsibility of those maintaining social media sites, including the defendants.  But because the plaintiffs have not pleaded facts that plausibly establish legal claims for which relief can be granted, the court will grant the motion and dismiss the case.” 


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick

Breaking news: having your first child changes your life. I know that you parents that read this are saying yeah, no kidding, buddy! And I knew this too going in. However, I would argue that regardless of what people tell you, nothing adequately prepares you for the change that you will go through once you have responsibility of a young child.

As the weather has gotten nicer, I thought hey, it will be easier to get out of the house. Au contraire!  Now, it is just we need to find her sunhat, or put on kid friendly sunblock, or kid friendly bug spray, there is always something which needs to be located. The occupant of our household who’s had one of the bigger changes in life is our loyal dog, Rooney. He certainly does not get to go on as many walks as he once did!

One of my best friends told me that before he and his wife had their two children, he was convinced that he was going to be the family who did not need to bring all of the baby accoutrements everywhere. He said that they were going to figure it out. My friend, with complete sincerity, looked me in the eye and said “James, it just isn’t possible.” Looking back, there is no doubt that he was right. We have already traded in one of our vehicles and got a bigger one to haul more stuff around in. And it seems small already!

Still such a fun time in our lives and now that Meghan is developing the ability to smile back at us, the times are even more precious.

This month we looked at a few escalator cases which have been handed down over the last few months, as well as an interesting elevator case involving a spooked plaintiff.


May 3, 2018 Ahmed v. Macy’s Inc.

Appellate Division, First Department

Summary judgment grant reversed on appeal in favor of Macy’s

In Ahmed, a plaintiff was allegedly injured when he slipped and fell on an escalator at a Macy’s department store. Macy’s moved for summary judgment, submitting deposition testimony of two of its employees as well as the records of maintenance and inspections of the escalator by defendant Thyssenkrupp Corp and the New York City Department of Buildings indicating that the elevator was regularly maintained and inspected during the years prior to plaintiff’s accident. The records also indicated that there were no reports of accidents or other problems with the escalator.

The Court found that plaintiff failed to raise a triable issue of fact, noting that plaintiff’s expert’s engineer’s opinion that wooden escalator treads were more slippery than industry safety standards permit did not raise an issue of fact and that plaintiff’s wife’s hearsay statement of wet stairs did not indicate the length of time that they were wet for Macy’s to have notice of the condition. Plaintiff’s own testimony that the rubber escalator handrail pulled up when he grasped at it as he slipped also did not raise an issue of fact, as there was no indication that the defect existed long enough for Macy’s to have notice of this issue, particularly since there were no prior complaints and the sparkling safety record of the escalator.

Plaintiff could not overcome Macy’s own records indicating that there were no prior issues with the escalator. Note that the decision does not indicate if Thyssenkrupp moved for summary judgment, had been previously granted summary judgment or otherwise. One would think that if Macy’s was entitled to summary judgment on the facts shown, Thyssenkrupp would be entitled as well.


May 31, 2018  Ingrao v. New York City Transit Authority

Appellate Division, First Department

Notice of claim and 50-h hearing provide New York City Transit Authority with sufficient notice.

Before we review this case, some background:  A notice of claim, for those who are not aware, is required within ninety days of an incident to place municipality on notice of that incident. This functions as almost a mini-statute of limitations.  The plaintiff then has one year (shorter than the three years applicable to a regular tort action) following that notice of claim to formally bring a summons and complaint against a municipality if plaintiff chooses. While there are exceptions to these time frames, this has the effect of limiting many negligence-based claims against municipalities because of the quick time frame to place the municipal defendant on notice.  A 50-h hearing, referenced below, is a hearing that the municipality will schedule soon after receiving a notice of claim to learn more about the claim. It is, in effect, an extra deposition of a plaintiff and allows the municipality to have additional information early on in the litigation or prior to the service of the summons and complaint.

In this action in which a plaintiff was allegedly injured while working at a Brooklyn train station, the New York City Transit Authority (NYCTA) claimed that they did not have sufficient notice as required to be provided to municipal defendants. The Court noted that “the test of the sufficiency of a notice of claim is merely whether it includes information sufficient to enable to the city to investigate”. The Court can also look to “the evidence adduced at the section 50-h hearing” to learn if the plaintiff has provided sufficient notice for Notice of Claim purposes.

Here, the plaintiff claimed that she was planning to take a train to Brooklyn and while she was on the escalator at the train station, she slipped and fell. Plaintiff alleged in her notice of claim that the escalator was controlled by the NYCTA and that it failed to properly maintain the escalator. The Court found this to be sufficient notice to support plaintiff’s theory of liability, that the NYCTA had failed to use reasonable care to maintain the elevator in a safe condition. 


May 8, 2018 Fenton Senior v. Elevator Refurbishing Corp and Prospect Realty Co.

Westchester County Supreme Court

Scared plaintiff in elevator survives summary judgment challenge of elevator repair company and property owner.

Plaintiff returned to his home following his work day and entered an elevator on the first floor to go to his second floor apartment. He was alone in the elevator and when it began its ascent, it suddenly stopped between floors. The plaintiff testified he became “frightened and terrified” and began “fidgeting with the buttons”. The elevator then began to descend faster than usual and again suddenly stopped and shook. Apparently, the elevator was headed back towards the first floor. The plaintiff testified the elevator door opened and he saw that he was three to four feet above the floor of the lobby.

Since he was scared and wanted to exit the elevator as quickly as possible, he tried to jump out of the elevator car to the lobby floor.  As he worked to exit the elevator, he put his right foot over the elevator, stumbled and hit his head on the stone divider located several feet from the elevator door which he alleged caused him to sustain injuries. This all took place within a matter of seconds, according to the plaintiff and he attributed his desire to exit the elevator due to his fright, being terrified and not having the presence of mind to call 911 or the building’s super.

The elevator company moved for summary judgment, noting that there had been no reports of an elevator stopping between mid-floors or mis-leveling.  Additionally,  the plaintiff did not sustain injury while within the elevator. The elevator company also noted that the plaintiff’s actions, were in effect, unreasonable, as he was fidgeting with buttons and did not know whether there was an emergency button and should have stayed put until help could arrive. The elevator company also argued that only after plaintiff’s feet hit the lobby floor did he stumble and hit his head on the stone divider. Arguments were also made that the elevator stop was not the proximate cause of the plaintiff’s injury and it was the actions he took after which caused his own stumble and head hit into the stone divider. Had he just stayed put and waited for help, as there was no emergency that justified the plaintiff jumping from the elevator, he would have been uninjured. It was not anticipated or foreseeable that a plaintiff would jump from an elevator partially in the air when no emergency was present.

The Court reviewed a number of cases, including Egan v. A.J. Construction Corp, 94 N.Y.2d 839 (4th Dep’t 1999). In that case, a plaintiff who was riding with 25 to 30 co-workers in a freight elevator came to a smooth stop and stalled six feet above the first floor. Assistance was called for by telephone and after waiting about 10 to 15 minutes, two workers opened the elevator doors and jumped to the lobby floor. When plaintiff attempted to do so, he felt shock in his spine and sustained physical injuries. The Court rejected his labor law claims finding that jumping out of a stalled elevator from a six foot height when he was not threatened with injury while in a stalled elevator was not a foreseeable event which defendants can be found negligent. The jump was a superseding conduct which terminated the defendant’s liability for his injuries.

The Judge also noted that the Fourth Department, in making that ruling, distinguished the facts in Egan from Humbach v. Goldstein, 255 AD2d 420 (2d Dep’t 1998). In that case, the plaintiffs sustained injury when trying to escape from a stalled elevator while attending a party at midnight with other guests. The elevator stopped between floors and almost immediately began to descend to the lobby, with the occupants pushing the buttons and alarm buttons and screaming for help with no response. After the elevator car came to rest and some time passed, the plaintiff opened an elevator door and lowered himself five feet, but lost his grip and fell to the bottom of the elevator shaft sustaining injury. The Court in Humbach found that their issues of fact precluding the granting of summary judgment in that case, as plaintiff’s conduct was not a superseding intervening act which broke the causal connection between defendant’s alleged negligence and his injuries, as a matter of law.

The Westchester County Supreme Court found the case here to be more aligned with Humbach than Egan. The defendant’s motion for summary judgment was denied, as plaintiff’s conduct, as a matter of law, when in a stalled elevator for a matter of seconds which had stopped twice and had began its descent before the second stop at a rate faster than usual, did not absolve the defendants from liability. With the plaintiff having been frightened, the Court found he could not have known whether he was in danger at that point and his exiting when he thought he could do so was not conduct which absolved the defendants of their negligence without a jury hearing the case. The Court said “the issue is whether he acted as a reasonable person under these circumstances, as developed on this record, and if so, was his injury proximately caused, without a break in causation, due to the alleged negligence of defendants.”

The Court also declined to rule on plaintiff’s argument that res ipsa loquitur would be applicable here, because there was insufficient proof to preclude a finding that plaintiff’s actions did not contribute to his injury.


Homeowner Liability, Recreational Accidents, and Discovery Angles

By: Marc A. Schulz [email protected]

Greeting Subscribers!

This past month my wife and I celebrated my birthday by attending game 4 of the NBA finals. My wife had a blast because “they played basketball at the Lil’ John concert”. Although LeBron did not score fifty points, watching a trophy presentation was pretty cool. By way of cases this month, I report on two cases dealing with summary judgment motions for the property owners, and a trivial defect case containing useful practice tips for utilizing expert affidavits. If you are moving for summary judgment, you need to confirm your expert is relying on appropriate evidence to support the conclusions, and do not hesitate to call or email me with questions you may have about your motion. Until next issue, enjoy the summer…



05/16/18          Simons v Vic-Armen Realty, LLC

Appellate Division, Second Department

Summary judgment denied to property owner who argued the alleged defect was trivial, relying on an expert affidavit that was based on his inspections and photographs taken more than five years after the accident

Plaintiff, while walking on the sidewalk in front of defendant’s building, allegedly was injured when her foot became stuck in a gap between two cellar doors embedded into the sidewalk. The trial court granted defendants’ summary judgment motion on the grounds that the alleged defect was not actionable because it was trivial.

The Second Department reversed, finding defendant failed to show that the gap between the cellar doors was physically insignificant and that the characteristics of the gap or the surrounding circumstances did not increase the risks it posed to pedestrians. The Court held plaintiff’s description of how her foot became stuck did not support their contention that the alleged defect was trivial, and rejected defendants’ expert because the expert inspected the cellar doors more than five years after plaintiffs’ fall, and relied on photographs and a video recording taken more than five years after the accident that was noticeably different from the photographs taken around the time of plaintiff’s fall.


05/30/2018      Ferber v Olde Erie Brew Pub & Grill, LLC

Appellate Division, Second Department

No dram shop liability for restaurant who served underage alcoholic beverages to the driver where it established it lacked notice that the driver was underage

Before the accident, plaintiff and two others were at a restaurant eating and drinking. They went to two more establishments where they consumed more alcohol. Thereafter, plaintiff, a twenty-year old, was a passenger in a vehicle when it crashed into a median guiderail barrier. The trial court denied plaintiff’s summary judgment motion on the issue of liability on his claim alleging a violation of General Obligations Law § 11-101 against Valjon, and granted defendant’s cross-motion for summary judgment dismissing the claim.


General Obligations Law § 11-101, which applies only to the commercial sale of alcohol, provides that a party who “unlawfully” sells alcohol to another person is liable for injuries caused by reason of that person’s intoxication. Here, the Second Department held defendant established through deposition testimony of its bartender that it did not have knowledge or reason to believe that the driver was under 21 years age when it served alcoholic beverages to him. Thus, the Court affirmed the trial court’s decision to dismiss the claim against defendant.


06/06/18          Beck v Archibald Enters., Ltd.

Appellate Division, Second Department

Summary judgment denied to property owner as plaintiff raised an issue of fact whether defendant hadactual or constructive notice of  the allegedly dangerous or defective condition of the tiled area   

Plaintiff was injured while walking on a walkway that led to the front entrance of a building owned by defendant when she allegedly slipped and fell on tiles that were part of the entryway. The trial court denied defendant’s motion for summary judgment on the grounds that it did not create or have notice of any defective or dangerous condition with respect to the tiles. The Second Department affirmed, finding that although defendant met its burden, plaintiffs raised an issue of fact regarding whether defendant had notice of a dangerous or defective condition regarding the tiled area before the subject accident.


 06/08/18         Landahl v Stein

Appellate Division, Fourth Department

Summary judgment granted to property owner who neither created nor had actual or constructive notice of  the allegedly dangerous or defective condition of the stair tread   

Plaintiff allegedly was injured when a stair tread on an outdoor deck’s stairs broke, causing him to fall. Justice Walker denied defendants’ motion for summary judgment and the Fourth Department unanimously reversed, finding defendants established they neither created nor had actual or constructive notice of the allegedly dangerous or defective condition of the stair tread. The Court rejected plaintiff’s expert affidavit because he never inspected the staircase.

Hurwitz & Fine, P.C.

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