Premises Pointers - Volume II, No. 11


Premises Pointers
Watch your step!

Volume II, No. 11
Monday, April 15, 2019
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.


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



Here is a story that caught my eye--a recently filed lawsuit in Texas against Olive Garden because the mushrooms were too hot. The plaintiff, who seeks monetary damages between $200,000 - $1,000,000, claims she had a near death experience as a result of biting into a hot stuffed mushroom.  The complaint alleges the mushroom was defective and unsafe for its intended purpose.  The plaintiff further claims that Olive Garden failed to warn guests the mushrooms were “extremely hot.”  According to the complaint, the mushroom became lodged in her throat allegedly causing burns and serious injuries.  Since the case was just filed in March, I will have to report back on the outcome.  I would suspect there will be a few affirmative defenses to be raised by Olive Garden (well maybe more than a few).    
On another note, I attended my first FDCC conference in Austin, Texas last month.  For those who don’t know, the Federation of Defense & Corporate Counsel (FDCC) is an international organization composed of recognized attorneys in the legal community and is dedicated to promoting knowledge, fellowship, and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits.  I can report the meeting did not disappointment!  It was a fabulous event.     
As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, e-mail me 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]. We look forward to hearing from you!










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

3/15/19            Del Rosario v. Liverpool Lodging, LLC.
Appellate Division, Fourth Department
Summary judgment granted by trial court but reversed on appeal by the Fourth Department even though plaintiff unable to pinpoint cause of fall – compare to Bilska from the Second Department below.

The Plaintiff allegedly fell while stepping out of a bath tub at defendants’ hotel. Defendants' motion for summary judgment was granted on the grounds that the cause of plaintiff's fall was based on mere speculation.  In support of their motion, defendants submitted plaintiff's deposition testimony, which according to the Appellate Court, established that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries.  It’s not clear to me how that proves anything.  It certainly appears be completely speculative.  Nevertheless, the Court felt defendants failed to establish the absence of a dangerous or defective condition and therefore reversed the trial court on all issues but plaintiff’s failure to warn claim because defendants demonstrated the condition at issue was open and obvious.

3/28/19            Dardha v. Costco Wholesale Corp.
United States District Court, Southern District of New York
Defendant’s motion for reconsideration in slip and fall case at Costco was denied by the District Court.

Plaintiff allegedly slipped and fell at a Costco location.  The defendant moved for summary judgment, but the motion was denied.  Following the denial of the motion, defendant made a motion for reconsideration, which the Court pointed out is “an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.”  In order to have a fighting chance on reconsideration, the moving part must be able to point to controlling decisions or data that the court overlooked and that would alter the conclusion previously reached.  A motion for reconsideration is not a vehicle for presenting new theories or for repeating old arguments.  Despite the established framework for reconsideration, defendant essentially repeated the arguments previously advance on summary judgment.  For instance, defendant claimed it was undisputed that the liquid on the floor was there for fewer than eighty-three seconds and therefore defendant did not have a reasonable opportunity to remedy the spill.  In denying the motion, the court points out that plaintiff disputes that the spill was on the floor for eighty-three seconds and that an employee arguably was aware of the spill thus constituting actual notice of the condition.  Based on this, the court went on to state that the issue of constructive notice was not relevant because the motion was properly denied based on questions of fact regarding actual notice.

3/20/19            Reardon v. Macy’s Inc.
Appellate Division, Second Department
Retail defendants’ motion to change venue was denied – practice point: read and be familiar with CPLR sections on venue and follow requirements closely!

The plaintiff was injured on a sidewalk when she was allegedly knocked to the ground after being struck from behind by employees of Macy's, Inc., who were in pursuit of a suspected shoplifter.  Venue was based upon the residence of the defendant Mirela Gjonbalaj in Kings County.  The other defendants answered the complaint and served a demand upon the plaintiff on or about November 3, 2017 to change venue to New York County from Kings County pursuant to CPLR 511[a] and [b], and on or about November 9, 2017, moved in the Supreme Court, Kings County, to change venue. The defendants contended that venue was improper in Kings County and, thus, they were entitled to change venue as of right or, alternatively, that a change of venue to New York County was appropriate for the convenience of material witnesses. The plaintiff opposed the defendants' motion and cross-moved to retain venue in Kings County. The court denied the defendants' motion and granted the plaintiff's cross motion. The defendants appealed.
A key thing to remember is that a demand to change venue based on the designation of an improper county shall be served with the answer or before the answer is served - see CPLR 511[a].   Since the defendants did not serve their demand for a change of venue until after they served their answer, they were not entitled to change venue as of right. Therefore, their motion could only be based on CPLR 510(3), which provides that, upon motion, the court may change venue of an action where “the convenience of material witnesses and the ends of justice will be promoted by the change.” A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses; disclose the facts about which the proposed witnesses will testify at the trial; represent that the prospective witnesses are willing to testify; and state that the witnesses would be inconvenienced if the venue is not changed.  It was determined by the court here that the court property exercised its discretion in denying the defendants' motion to change venue from Kings County to New York County and in granting the plaintiff's cross motion.  The court cited to the fact the defendants failed to identify a single prospective witness who would be inconvenienced by the venue remaining in Kings County.

4/3/19              Bilska v. Truszowski
Appellate Division, Second Department
Landlord wins summary judgment on all fronts – gets plaintiff’s complaint dismissed because plaintiff is unable to identify what actually caused her to fall and also wins summary judgment against third-party defendant for contractual indemnification.

The plaintiff allegedly slipped and fell on water while working in the kitchen of a restaurant owned by the third-party defendant employer.  The plaintiff commenced suit against the owner of the premises where the restaurant was located (the landlord) and the landlord commenced a third-party action for contractual indemnification against the employer.  The landlord moved for summary judgment dismissing the complaint and the employer moved for summary judgment dismissing the third-party complaint, and the landlord cross-moved for summary judgment on her third-party cause of action for contractual indemnification. The Supreme Court denied all motions.  The Appellate Division determined the landlord met her burden on her motion for summary judgment dismissing the complaint by submitting the plaintiff's deposition transcript, which demonstrated the plaintiff was unable to identify the cause of her fall without resorting to speculation. The plaintiff's theory that she slipped on water dripping from the ceiling was speculative in light of her deposition testimony that she “personally didn't see any water dripping, but there must have been a drip from the ceiling because the ground was wet.”   Further, the landlord was entitled to summary judgment on her third-party cause of action for contractual indemnification. The lease rider provided that Bowian was obligated to indemnify the landlord “against any liability, claim, or payment on account of or arising from the Tenant's possession, use or occupation of the premises,” and required Bowian to obtain general liability insurance for the mutual benefit of both parties, naming the landlord as an insured. The landlord established that the accident fell within the scope of the indemnification agreement.




Negligent Supervision, Municipal Claims and School Liability
By: Todd C. Bushway [email protected]

Child #2 is a junior in high school and next couple of weeks will see his first college visits.  South to the University of Pittsburgh this week and a mid-west Jesuit tour next week – Loyola Chicago, Marquette and Xavier.  The most important parental lesson from Child #1’s (now in the last weeks of her first year at Villanova) college search was stepping into the background and watching her during campus visits to identify the type of school (or at least characteristics) that resonated with her and then gently steering the search toward those types of schools.  We’ll see what that brings us this time around. 
On the musical front, the last month or two has brought new releases from two of Toronto’s most fun young bands – PUP (Morbid Stuff) and Pkew Pkew Pkew (Optimal Lifestyles).  Neither record solves any world problems, but I dare you to not turn up the volume and sing along should you find yourself alone in the car with either band.  And why wouldn’t you – both bands serve up short, tight and often irreverent songs about everyday victories and annoyances.  The best review of the Pkew Pkew Pkew record I read described it as “full of anthemic fist-pumpers about things you probably shouldn’t be pumping your fist about” and containing “chord progressions straight from old early Clash and Pogues records, the occasional 50s-style guitar solo and big choruses.”  Craig Finn, front man for the Hold Steady and a master songwriter adept at capturing small details about everyday things, worked with the band on the record and his influence shows. 
The cases covered this month look at the dismissal of claims against a school district that were included in the complaint but not the underlying notice of claim (Meyer); the bounds of a school’s district’s care and custody of, and therefore duty to a student (Williams); an application to stay a civil suit until a related criminal case is resolved (Miller); a motion to dismiss because plaintiff had not appeared for a General Municipal Law §50-h hearing before commencing her suit (Rabaia); and whether calls to city’s complaint line can fulfill a prior written notice requirement (Hued and Harvey).
Thanks for reading.  Please send along any comments, questions, critiques, faint praise and melodious recommendations.  If there is a topic you would like us to comment on, just let us know.
March 27, 2019          Meyer v. Magalios, et al.
Appellate Division, Second Department
The lack of notice of any prior problems between students involved in fight and the spontaneous nature of incident supported dismissal of the plaintiff’s claim of negligent supervision by school district.  Plaintiff’s remaining claims were dismissed because they were not contained in the Notice of Claim served upon the district.
Plaintiff high school student sought recovery for injuries allegedly sustained in a fight occurring in a school bathroom between classes.  The fight occurred when the 11th grade plaintiff called another student “fat” while passing him in a school lavatory between classes, a slur that led to a 20-30 second melee during which plaintiff was allegedly injured.  When the skirmish occurred, the closest faculty member was in the nearby hallway.
Because the district (1) had no prior notice of any issues, conflicts or prior incidents involving either student, and (2) the incident was so spontaneous that no reasonable amount of supervision could have prevented the incident, the court granted the district’s motion to dismiss plaintiff’s negligent supervision claims.  The plaintiff’s remaining claims (including claims that the District had interfered or allowed interference with plaintiff’s rights by failing to take action against the other student) were also dismissed, without any examination of their relative merits.  Plaintiff had not included these claims in their Notice of Claim, precluding any recovery on those claims in the personal injury suit.
The practice point here may be obvious, but is worth repeating – comparing both the complaint and bill of particulars against the previously served Notice of Claim is crucial.
March 20, 2019          Williams v. Student Bus Company, et al.
Appellate Division, Second Department       
Special education program that did not provide for student transportation was not liable for injuries to student sustained on school bus while riding home from school. 
Infant plaintiff was enrolled in a program presented by a countywide BOCES program, held at a central location.   BOCES had no responsibility for transporting any of the students attending its programs – that obligation lay with a participating student’s home district.  In this case, the plaintiff’s home district contracted with codefendant Student Bus Company, a private busing company, to transport its students to and from the BOCES programs.
Plaintiff‘s parents brought this action, alleging negligent supervision, to recover for injuries sustained by their son at the hands of a fellow student.   The incident occurred when both students were on a Student Bus Company bus on the way home from the BOCES program.  After discovery, BOCES, the school district and the transportation company all moved for summary judgment.  Questions of fact led to the denial of the district and bus company’s motions.  BOCES’ motion was granted, since its duty to supervise was tied to the student being within its “physical custody or orbit of authority.”  Since it was not responsible for providing and had no involvement with the infant plaintiff’s transportation to and from its program, BOCES’ custody and control of the infant plaintiff had ended when he boarded the Student Bus Company bus for his ride home. 
April 11, 2019            Miller v. New York City Housing Authority, et al.
Appellate Division, First Department
Defendant property owner not entitled to stay of civil suit pending the resolution of a criminal prosecution arising from the underlying event. 
Tenant sued the defendant Housing Authority for injuries sustained when assaulted in her apartment by an intruder who had allegedly gained access to her building through a broken lock.  Plaintiff alleged the Authority had notice of the broken lock and was negligent for failing to correct the situation, thereby allowing the assault to occur.  The Housing Authority sought a stay of the plaintiff’s suit because the criminal prosecution against the intruder was ongoing, and as a result, police and other investigative records remained under seal and unavailable to the Housing Authority.  The court found the negligence claims against the Housing Authority (based upon the alleged notice of the condition) were wholly distinct from criminal charges lodged against the assailant.
I currently have several cases on my desk where a police department has cited an ongoing criminal investigation or prosecution as the basis for not providing us with their full report, including witness statements, photographs, physical evidence.   In a couple of auto cases, we have successfully gained access/permission (usually through an Order to Show Cause) to at least visually inspect and photograph the impounded vehicles. Stressing that your inspection will be visual only (i.e. non-destructive) is important.  If the issue is whether something has been preserved or a certain test done, politely asking to verify that was done may be the best you can do.  If your client is the one facing the criminal charges, his or her criminal defense lawyer likely has access to the investigation materials and may, depending on the circumstances and materials, be willing to share the information or materials.

March 20, 2019          Riabaia v. New York City Health and Hospitals Corp., et al.
Appellate Division, Second Department
Municipal defendant’s motion to dismiss denied because plaintiff had reasonable explanation for her failure to appear for a hearing noticed pursuant to General Municipal Law §50-h.
Plaintiff, then in her late 80s, fell while a patient at the defendant’s Coney Island Hospital.  Within several weeks of her fall, she filed a Notice of Claim, followed shortly thereafter by the defendant’s service of a notice to appear for a hearing to be conducted pursuant to General Municipal Law §50-h.  That hearing was then adjourned several times.  Ten months after the fall, and without the §50-h hearing having been conducted, plaintiff commenced her lawsuit.

The defendant hospital moved to dismiss, citing to General Municipal Law §50-h(5) and the undisputed fact that plaintiff had not testified at a §50-h hearing.  §50-h(5) makes appearing at a duly noticed §50-h hearing a jurisdictional predicate to commencing an action.  General Municipal Law §50-e sets forth similar requirements that must be complied with prior to commencing an action against a municipal entity.  The issue for the court was whether plaintiff had a reasonable or justifiable excuse for her failure to testify at a §50-h hearing.  Here the court found that plaintiff’s failure to appear was directly related to her medical and mental conditions, documented to the court through the submission of a statement from her doctors.   The decision  does not offer an explanation as to why plaintiff commenced the action when she did – there remained several months before the statute of limitations ran, meaning there was time to conduct the §50-h hearing and avoid the circumstances that led to the defense motion discussed here.

March 26, 2019                     Hued v. City of New York, et al.
April 11, 29019                      Harvey v. Henry 85 LLC, et al.
Appellate Division, First Department
Calls to a City complaint line do not, by themselves, fulfill a prior written notice requirement
Both of these cases arise from slip and fall accidents occurring on City of New York owned property subject to prior written notice requirements.  In Hued, plaintiff was injured because an allegedly defective or damaged catch basin (part of a drainage system).  In Harvey, plaintiff claimed to have fallen on an allegedly dangerous handicapped pedestrian ramp.  In both cases, the City moved for summary judgment, establishing that it had checked its records and found no written notice of the condition complained of in each suit. 
In response, both plaintiffs pointed to calls made to the City’s 311 complaint line about conditions at each location.  Case law is clear that calls, by themselves, to a complaint line will not satisfy prior written notice requirements.  In certain circumstances, documents generated by a municipal entity regarding the issue (usually generated in response to a complaint) can be considered a “written acknowledgement” of the issue and can a prior written notice requirement.   That written acknowledgement must be specific to the condition underlying the subsequent personal injury action. 
In Hued, the work order created in response to the 311 line complaint line was not a written acknowledgement because it pertained to a supposed problem at the opposite side of the area where the catch basis was located.  In Harvey, 6 years prior to the complaint line call, the City had cited the owner of the adjacent property for missing tiles on or about the handicapped ramp.  Because that citation was still open when the complaint call was received, no follow up investigation or site inspection was conducted.  In any event, the earlier citation did not constitute written acknowledgement by the City of the condition claimed by the plaintiff to have caused her fall – plaintiff testified that there were no missing tiles on the ramp both prior to and on the date she fell.




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

April’s here and almost time for Spring Break.  I hear they have closed Miami Beach and Panama City from spring break revelry, so the Potenza clan will be road-tripping Griswald style down to Charleston and Hilton Head, SC, with a pit-stop in Washington, D.C. where my kids will meet their new cousin, who hopefully is nothing like Cousin Eddie.

There are some interesting asbestos decisions this past month.  The First Department held that a plaintiff’s testimony that he worked with defendant’s product “a lot” was insufficient foundation for expert’s causation opinion.  The First Department also addressed the assessment of liability against plaintiff’s employer as a non-party.  And sadly, the Third Department reversed a rare upstate New York defense verdict on an evidentiary issue.

And now for this month’s Easter dad joke:

Why shouldn’t you tell an Easter egg a bad joke?
It might crack up!
3/28/19            Corazza v. Amchem Products, et al.,  
First Department
“A lot” of asbestos insufficient to establish causation.

The First Department reversed a nearly $1.8 million lung cancer verdict against the trial defendant Caterpillar, finding that there was insufficient foundation for plaintiff’s expert’s opinion on causation.  Plaintiff alleged that he was exposed to asbestos as result of his work changing brakes, clutches, and gaskets on manufacturer's forklifts.  The Court ruled that the plaintiff failed to establish some scientific basis for a finding of causation attributable to manufacturer's product as he testified that he worked on manufacturer's forklifts “a lot,” but provided no context for deciphering the meaning of “a lot,” he did not offer any other basis for determining frequency of his exposure to asbestos through his work on manufacturer's forklifts, and thus plaintiff’s experts had insufficient foundation for their medical opinions that his work with manufacturer's forklifts was substantial cause of his lung cancer.

3/28/19            Brown v. Bell & Gossett, et al.
First Department                          
First Department addresses how to assess liability against an entity that was both plaintiff’s employer and a contractor at plaintiff’s worksite.

Following a verdict for plaintiff, the sole issue on this appeal was the attribution of liability as between trial defendant Consolidated Edison and nonparty Robert A. Keasbey, Co. (Keasbey). For a period of time, plaintiff had worked at sites where Keasbey workers used asbestos containing concrete materials.  Plaintiff then worked directly for Keasbey at the Con Ed site.  The jury apportioned liability 30% to Con Ed and 35% to non-party Keasbey. 
Plaintiff submitted to the trial court a proposed judgment apportioning to Con Ed 65% of the net verdict, combining the 30% to Con Ed and the 35% to Keasbey, pursuant to CPLR 1602[4], because Keasbey was Brown's employer and therefore could not be sued directly by plaintiff, while Con Ed could proceed against Keasbey for indemnification or contribution, as Brown had suffered a “grave injury” under Workers' Compensation Law § 11. Con Ed proposed a judgment in which it was apportioned liability in the percentage the jury found, on the ground that its apportioned share was less than 50%, pursuant to CPLR 1601. The trial court adopted Con Ed's proposed judgment and the First Department reversed, finding that plaintiff established prima facie that CPLR 1602(4) applied, as Keasbey was Brown's employer and Brown suffered a grave injury. To the extent that the verdict is unclear as to whether the jury apportioned liability to Keasbey to any degree in its role as manufacturer, Con Ed, as the proponent of the theory that it could limit that portion of Keasbey's liability for which it was jointly and severally liable, failed to meet its burden to object to the verdict sheet and charges and to propose an appropriate and clarifying question.

3/21/19            Billok v. Union Carbide, et al.
Third Department                        
Court orders new trial over admissibility of prior deposition of corporate witness.
Defendant Georgia-Pacific earned a rare defense verdict in an upstate New York (Saratoga County) asbestos trial, which hinged on whether plaintiff correctly identified the defendant’s product.  The Third Department ordered a new trial, finding that the defendant should not have been permitted to introduce testimony from a corporate witness in a prior action since plaintiff was not a party to that prior action and had no opportunity to cross-examine this witness.




Snow and Ice, Storm in Progress, Tavern Owner and Dramshop Liability, Limited Services Contracts, and Other Timely Topics
By: Anastasia M. McCarthy [email protected]

Spring has sprung! Well, sort of—it seems that we are in a two steps forward, one step backward holding pattern with Mother Nature these last few weeks as we alternate between 60 degree days and snow. If you are anything like me, you are using the long trudge into the summer as motivation to plan a vacation this summer—that’s why this month’s column is all about Airbnb. 
If you are an Airbnb host, you, individually, can be held liable for an injury occurring at your property, regardless of your ownership status.  In other words, whether you are an owner of the premises, or a tenant “subletting” a room in your apartment (or leasing your apartment through Airbnb while you are away), you can still be considered responsible for injuries occurring during a guest’s stay.  Indeed, even a landlord or a homeowner’s association may be on the hook where its tenant leases out the premises, or a portion of the premises, through Airbnb. Airbnb itself may be the target of a lawsuit where the injuries at-issue are alleged to stem from a sexual assault, crime, or the gross negligence of an Airbnb host on the grounds that Airbnb negligently allowed the host to utilize its platform.
Over the last few years, there’s been a lot of media reporting about injuries at Airbnb accommodations resulting in lawsuits.  In 2015, a mother brought a lawsuit directly against Airbnb after her son was illegally confined and sexually assaulted by a host in Madrid; in 2017, a San Francisco woman sued Airbnb after one of its “Super Hosts” sexually assaulted her at a Los Angeles property; and in 2018, the family of a Florida woman sued both Airbnb and the owner of a Costa Rican apartment complex after a security guard working for the property owner murdered the decedent.

As one would expect, Airbnb’s terms of service includes an indemnification provision insulating itself from the bad acts of hosts as well as a provision outlining the company’s position that both hosts and guests assume the risk of using the platform. 
The terms also bind guests and hosts to arbitration.  Specifically, members who raise claims for personal injury arising in the United States, or who file claims within the U.S., must abide by a two part Dispute Resolution and Arbitration Agreement that provides “(1) an informal negotiation directly with Airbnb’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association”.  Narrow exceptions are made for alleged copyright/trademark/patent or intellectual property rights cases as well as claims seeking emergency injunctive relief based upon exigent circumstances (such as imminent danger, commission of a crime, etc.).  Where a claim falls within these narrow exceptions to the Arbitration provision, the terms of service also include provisions that a person’s use of the site waives any right to a jury trial and, further, assigns the Courts of San Francisco, California as the proper venue and forum. 

Interestingly, all of Airbnb’s hosts, worldwide, are covered by the Company’s Host Protection Insurance.  HPI provides primary coverage for hosts, landlords, and homeowner’s associations for claims of personal injury and/or property damage of up to $1 million per occurrence.  The claim must arise out of an Airbnb listing, at an Airbnb property, or occur during a guest’s stay; coverage does not extend to property damage caused by environmental conditions (such as pollution or mold), intentional torts, and/or loss of earnings.




Homeowner Liability, Recreational Accidents and Discovery Angles
By: Marc A. Schulz [email protected]

Greetings Subscribers!
Although April showers are here in Buffalo, I miss March Madness and definitely did not want that National Championship game to end…what a phenomenal way to conclude another awesome season! But with NBA playoff games every night for the foreseeable future, basketball is not over yet and like you, I too am wondering if 2019 is the year that Brian Barnas’ Toronto Raptors will meet the Warriors in the finals or whether we will be pleasantly surprised by another team from the Eastern Conference.
This month’s issue is full of discovery cases involving CPLR § 3126 motions for spoliation sanctions with a variety of repercussions for those who choose to ignore court-ordered discovery deadlines or respond inadequately. I also discuss the Bilska case, which highlights when a defendant is entitled to summary judgment dismissing a premises liability claim when the evidence demonstrates that plaintiff cannot identify the cause of his or her fall. Send me an email if you have any questions, or if you need a refresher for dealing with contractual indemnity issues and/or General Obligations Law § 5-321.
04/03/19          Torres v Dayton Hudson Corp.
Appellate Division, Second Department
Plaintiff’s failure to comply with the conditional order of preclusion results in dismissal of complaint.

Pursuant to a conditional order of preclusion, plaintiff was required to provide outstanding discovery to defendants, including the specific location of plaintiff’s fall on their sidewalk, driveway, or parking lot, and was also to appear for a deposition on a date certain. After plaintiff failed to comply with the conditional order, the trial court granted defendants’ CPLR § 3126 motion to dismiss as the discovery responses plaintiff provided were incomplete and inadequate and plaintiff’s failure to explain his noncompliance demonstrated that such noncompliance was willful. Thus, the trial court found the conditional order of preclusion had become absolute and plaintiff was precluded from offering any evidence or testimony at trial to support his claims against defendant.
It is well-settled that “a conditional order of preclusion requires a party to provide certain discovery by a certain date, or face the sanctions specific in the order”, and that if a party fails to produce the requested discovery by the specific date, the conditional order becomes absolute. Here, the Second Department affirmed; finding plaintiff failed to provide all required discovery as stated in the conditional order and neither offered any excuse for this failure nor demonstrated that he had a meritorious cause of action.

04/10/19          Broccoli v Kohl’s Dept. Stores, Inc.
Appellate Division, Second Department
Plaintiff’s repeated failures, without an adequate excuse, to respond to discovery demands and to comply with the trial court’s orders to provide the outstanding authorizations warrants dismissal of her claims.

Plaintiff allegedly was injured while shopping at Kohl’s, when she was assaulted by a security guard. The trial court granted Kohl’s motion to strike the complaint due to plaintiff’s failure to provide court-ordered discovery. Upon granting plaintiff’s motion for renewal and reargument, the trial court adhered to its prior determination.
Under CPLR § 3126, the trial court has the discretion to strike a pleading of a party who refuses to comply with court-ordered discovery, where that party’s conduct was the result of “willful and contumacious” conduct. In this case, the Second Department affirmed the striking of plaintiff’s complaint; finding that plaintiff’s conduct was willful and contumacious since it could properly be inferred from her repeated failures, without an adequate excuse, to respond to discovery demands and to comply with the trial court’s orders to provide the outstanding authorizations.

04/10/19          Sanders v 210 N. 12th St., LLC
Appellate Division, Second Department
Plaintiff’s CPLR § 3126 motion for spoliation sanctions denied because he did not establish that defendant failed to preserve all of the surveillance video footage taken on the date of the subject incident after defendant was placed on notice that the evidence might be needed for future litigation.

Plaintiff allegedly was injured when he slipped and fell on a patch of ice as he was exiting defendant’s building after making a delivery to a resident. A few days later, plaintiff’s employer contacted defendant’s property manager and requested a copy of any video surveillance footage depicting the incident, and thereafter responded to the request with a two-minute clip of the footage showing the fall.
In response to plaintiff’s motion to compel seeking the all of the video footage taken that day or to preclude defendant from introducing evidence at trial of any destroyed footage or to direct that a negative inference charge be given against defendant on spoliation grounds at trial, defendant submitted its property manager’s affidavit stating that he only had a two-minute clip which he previously emailed to plaintiff’s employer and the remaining footage was automatically deleted 30 days after the incident.
The trial court granted plaintiff’s motion to impose sanctions to the extent of precluding defendant from offering the footage into evidence at trial and providing for an adverse inference charge at trial. However, the Second Department reversed; finding plaintiff did not demonstrate that defendant’s failure to preserve all of the video surveillance footage fatally compromised his ability to prove his claim such that plaintiff’s motion to impose sanctions on defendant should have been denied.




Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Marina A. Barci
[email protected]


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