Premises Pointers - Volume II, No. 12


Premises Pointers
Watch your step!

Volume II, No. 12
Wednesday, May 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


Last month, I brought you the case of the hot stuffed mushroom and the plaintiff seeking monetary damages between $200,000 - $1,000,000.  This month the case that caught my eye – brace yourself - was a $2.055 billion-dollar verdict in California awarded to a couple diagnosed with cancer they claimed was caused by their long-term exposure to Roundup, a weed killer sold by many retailers.  The verdict was comprised of $55 million dollars in compensatory damages and $2 billion dollars in punitive damages. 
Continuing with the product liability theme, below you will find a Product Liability Special Alert by Premises Pointers contributor V. Christopher Potenza (our products and toxic tort expert) and attorney John R. Ewell, a member of our insurance coverage practice group and Coverage Pointers contributor, who in his spare time enjoys handling a good product liability case.  On May 9, 2019, the Court of Appeals, in Fasolas v. Bobcat of New York, 2019 NY Slip. Op. 03657 (2019), upheld the rule that manufacturers are entitled to a defense to strict products liability if the purchaser is aware of optional safety devices and chooses not to use them, regardless of whether the product was sold directly to the end-user or came into the injured end user's hands through the rental market.  See below for the full break down of the decision.

On the transportation negligence front, earlier this month Chris and I attended The Harmonie Group’s trucking and transportation meeting in Chicago and connected with some great folks from the US and Canada.  It was an excellent event with presentations from people on the front line of handling trucking and transportation claims.  Stay tuned next month for a special feature on transportation industry trends.  
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]. Send Dan Kohane ([email protected]) an e-mail if you would like to receive Coverage Pointers and let David Adams ([email protected]) know if you’re interested in Labor Law Pointers.    Please feel free to reach out.  Questions and comments always welcome!







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

There were positive decisions for the defense on the retail front this month, including a dismissal based on plaintiff’s speculation as to the cause of his fall on a stairway, and a dismissal based on evidence that on a rainy day the defendant mopped the area of the fall 15 minutes prior.  Proving that there are advantages to removing a case to federal court when possible, there are two District Court cases in which the defendants were able to obtain dismissals merely by pointing to the plaintiff’s absence of evidence as opposed to the state court standard of affirmatively demonstrating that the defendant had no notice or caused the condition.  Such was the scenario however in the Third Department case that we also report on this month in which the plaintiff was able to survive summary judgment because the defendant could not meet its burden on the motion of demonstrating lack of notice.

4/10/19            Grande v. Won Hee Lee
Appellate Division, Second Department
Summary judgment granted to grocery store because plaintiff who fell on an interior staircase could not connect any alleged defect in the staircase to the cause of the fall. 

The stairway plaintiff was injured on led to the storage basement of the store and was not open to shoppers.  The plaintiff was found on the floor.  He was confused, combative and intoxicated and ultimately diagnosed with a severe head injury, in a coma for one month and never able to describe the events of the fall.  The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify the cause of the fall without engaging in speculation.  The affidavit of plaintiff’s expert was not sufficient to raise a question of fact because it did not create a reasonable inference of causation.  The evidence demonstrated that it was just as likely that some other factor, such as a misstep or a loss of balance due to his intoxication, could have caused his accident

4/17/19            Radosta v. Schechter
Appellate Division, Second Department
Summary judgment granted to convenience store dismissing plaintiff’s claim of falling due to rain water that had accumulated near front entrance of store.

It is undisputed that it was raining heavily on the day of the accident, and that there was a mat just inside the front entrance to the store. Said testified at her deposition that store employees were instructed to dry-mop water from the floor every 15 minutes on days it rained. At his deposition, one of Said’s employees testified that he mopped water as soon as he observed it. Moreover, the evidence submitted in support of the defendants’ motion demonstrated that the employee dry-mopped the area of the floor where the injured plaintiff allegedly fell approximately 15 to 25 minutes before the accident occurred. Said and her employees were not obligated to provide a constant remedy to the problem of water being tracked into the store in rainy weather.

4/18/19            Ghali v. Wal-Mart Stores East, LP
United States District Court, Southern District of New York
The benefit to defendant of removing case to federal court is once again seen as the court here dismisses plaintiff’s slip and fall case against Wal-Mart based on plaintiff’s inability to demonstrate defendant had notice of the condition at issue.

When plaintiff and his son arrived at Wal-Mart she says it was raining, that there were “dripping wet” shopping carts in the vestibule and the mates were “saturated” with water.  When plaintiff stepped off the mat he fell to the floor.  After his fall, Plaintiff observed spots of water on the floor that were a quarter-inch deep with a “radius maybe of five, six inches.”  Plaintiff did not remember if he had seen the wet floor before he slipped, but once he fell, the floor was wet enough that Plaintiff could see footprints. Plaintiff did not make any determination as to how the spots came to be on the floor or how long they were there. Wal-Mart’s surveillance video begins approximately 1 hour before plaintiff’s fall.  The parties agree that that surveillance video shows that approximately 395 people walked in or out of the vestibule in the hour before the accident, 170 of whom used the same door as Plaintiff.  At least fifteen people walked without incident over the area where Plaintiff’s accident would later occur.  Nobody slows down or has any difficulty ambulating. The parties also agree that in the hour following the accident, nearly 275 people traveled through the vestibule, about 180 of whom used the same door as the Plaintiff, and at least ten walked directly over the accident location without incident.  Here, the court stressed a store owner is not obligated to provide a constant remedy to the problem of water being tracked into its store in rainy weather.  A store owner cannot prevent some water and mud being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions.

While in New York state court, the Defendant would have to demonstrate that it neither created the condition nor had notice of it, in federal court the Defendant, as the moving party, may point to the absence of evidence that it caused or had notice of the hazard and thereby shift the burden to the Plaintiff to create an issue for trial through specific factual assertions.  Ultimately, the court ruled that plaintiff failed to identify a Wal-Mart employee who had knowledge of the floor’s condition before his fall, but he has also failed to offer circumstantial evidence that would allow a reasonable jury to infer that an employee had actual notice. Defendant’s summary judgment motion was granted.

5/01/19             Graziano v. Target Corporation
United States District Court, Eastern District of New York
Another retail defendant granted summary judgment in case where plaintiff could not offer evidence as to the existence of a puddle that allegedly caused plaintiff to fall.

Plaintiff does not proffer any evidence, beyond mere speculation, as to how the puddle came to exist or as to how long it had existed prior to her fall. There is no competent evidence that the liquid had spread or been tracked through the store; that anyone or anything else had ever passed through the puddle prior to the accident, e.g., footprints, cart marks, etc.; or that the puddle contained debris, had increased in size or had existed long enough that it changed color, temperature or consistency.  Hence, summary judgment granted to defendant.

5/09/19            York v. Thompson Station, Inc.
Appellate Division, Third Department
Plaintiff, who fell on ice in parking lot in front of Shop-Rite’s store, survived summary judgment, but store owner’s claim for contractual indemnification from snow plow contractor did not.

The plaintiff allegedly slipped and fell on ice in the parking lot of a store.  To support their motion, defendants were required to demonstrate a lack of constructive notice, i.e. that the condition was not visible and apparent and had not existed for a sufficient period of time prior to the accident to permit defendants to discover it and take corrective action.  In support of their motion, defendants offered the testimony of plaintiff, Stephen Poley, the vice-president for Poley Paving, and two Shop–Rite employees – Raymond Robinson, a cart person, and Anthony Faber, an assistant store manager. Plaintiff testified that she observed several patches of snow and ice in the parking lot on the morning in question. Upon exiting the store and walking to her car, plaintiff’s left foot slipped forward, causing her to fall on her right side. Although she testified that she did not see the patch of ice that she slipped on prior to falling, she stated that, while on the ground, she could readily see the thick, “whitish color” patch of ice that she had slipped on. Following the incident, Faber and Robinson confirmed that there was a visible patch of ice where plaintiff had fallen, as well as some accumulated snow nearby, and Robinson testified that he thereafter spread rock salt over the subject patch of ice as plaintiff was waiting for the ambulance.  Although Poley testified that Poley Paving would monitor the weather, salt or sand the lot as needed and inspect the lot on a daily basis, no evidence was presented with regard to when Poley Paving had last inspected the lot prior to plaintiff’s fall. Faber testified that Shop–Rite opened at 6:00 a.m. and he had not received any complaints of icy conditions prior to plaintiff’s fall, which was almost three hours later.  Plaintiffs’ claims ultimately survived summary judgment, but the store owner’s cross claim for contractual indemnity against snow plow contractor did not with the court holding “the party seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the cause of the accident.”

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

Greetings.  I have glimpsed the future and I can report the path to that future can be bumpy.  Hurwitz & Fine is in the midst of a major upgrade/change to our office technology, converting to a case and document program.  I am part of the team that has been working on the project for well over a year.  We went live with the new software this week and it’s been a rocky start.  These types of programs are becoming standard of the legal world (and in a whole host of other disciplines as well) and I am sure that this will make our work lives much better.  We just need to get there.
Musically speaking, those looking for a smooth and chill set of songs to add to their summer playlist should check out Little Steven and The Disciples of Soul's Summer of Sorcery.  Little Steven is Steven Van Zandt, longtime guitarist in Bruce Springsteen’s E Street Band (and played the role of Silvio Dante on the Sopranos).  The Disciple’s of Soul is his own band – the band has had several iterations over the years.  All of the original songs on this disc would fit easily into a 1960s era Jersey shore band’s rock and soul playlist, complete with a horn section and several background singers smoothing things out.  Little Steven’s other releases are also excellent and worth a listen. 
I’ve also been listening to some serious throwback music – early Beastie Boys are one of the bands filling my playlists.  I’m not a rap/hip-hop fan at all but I’ve always loved the full guitar band sound that backs up many of the Beastie Boys' early tracks.  The video for 1994’s Sabotage has to have one of the greatest videos ever produced.  Produced by a young Spike Jonze, consists of the band recreating Starsky and Hutch type car chases on the streets of LA.  The video was apparently produced without obtaining permits from the City, meaning the crew would shoot a scene and immediately move on.
Case wise, we have a pair of cases that illustrate the “creation” exception to a prior written notice defense and a case that finds an injury producing event was (1) not reasonably foreseeable and (2) spontaneous, and therefore not something that would support a claim that school personnel had failed to provide adequate supervision.
May 2, 2019   Harvish v. City of Saratoga Springs
Appellate Division, Third Department
May 1, 2019   Eisenberg v. Town of Clarkson
Appellate Division, Second Department
Reviewing the creation exception to a prior written notice defense.
Prior Written Notice require that an allegedly injured claimant, bringing a claim that they were injured by a defect on a roadway, sidewalk, parking lot or other location subject to the statute, must show that the municipality received written notice identifying the alleged defect and had sufficient time to correct the problem.  There are two exceptions to prior written notice statute requirements/defense – that the municipal or governmental entity affirmatively created the allegedly dangerous condition or defect or that the condition is a special use that confers a special benefit to the municipal entity.  These two cases look at the exception arising from the affirmative creation of the condition.
Harvish fell over a metal sign post anchor located on a City owned sidewalk.  Eisenberg slipped and fell on ice that had accumulated on the paved entrance to a town-owned parking lot.  Both conditions were subject to a prior written notice statute and in both cases, the defendant municipality met its prima facie burden that it had not received prior written notice of the alleged dangerous condition, shifting the burden to the plaintiffs to raise a question of fact or establish that one of the exceptions to the prior written notice requirement.
Harvish argued that the City had “created” the condition (i.e., the protruding metal anchor) by installing the anchor in the sidewalk some 8 years before her accident and then failing to conduct periodic inspections of the installation.  Eisenberg argued the Town had “created” the icy condition because it had piled plowed snow from the parking lot in a location that resulted in water (as the pile melted) flowing across the area where he fell – depending upon changing weather, that water could freeze and create the hazard.  The Harvish court rejected plaintiff’s argument and dismissed the case against the City, noting that the alleged failure to inspect the sidewalk was not an action that immediately resulted in the allegedly dangerous condition.  The snow melt/freeze scenario alleged by Eisenberg was found to raise a question of fact on the creation exception – if proven, where the Town placed the pile snow directly caused the icy condition.
May 1, 2019   B.J. v. Board of Education of the City of New York, et al.
Appellate Division, Second Department
Board of education not liable for a failure to supervise where the events resulting in the plaintiff’s injuries were not foreseeable or something that had happened previously.
Plaintiff was a high school lacrosse player injured when an unleashed dog came into the area where the team was practicing.  During the ensuing chase, a person ran into plaintiff.  The dog was brought into the area by a person not affiliated with the plaintiff’s school.

Plaintiff’s suit alleging a failure to adequately supervise the practice by allowing the dog to enter the practice area was dismissed.  Key to any negligence supervision claim is establishing that the injury producing event was something reasonably foreseeable – i.e., something that the school could be reasonably expected to anticipate and account for.  In affirming the lower court’s order granting the school summary judgment, the appellate court noted that the school established that it was not aware of any prior instances where a dog had gotten loose in the practice area and that the event itself was spontaneous in nature, and therefore not something the school could have done anything to prevent.


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

Happy Mother’s Day to all the hardworking Moms out there.  I’d be remiss if I did not give a shout out to my wife (not that she is reading this) for everything she does to keep our house in order.  If you are looking to barricade yourself from your family this weekend, and find comfort in solidarity, I highly recommend binge watching Workin’ Moms on Netflix, a Canadian comedy series following a group of working moms just trying to keep it all together.

As for Toxic Tort news, there is an interesting lead paint decision from the Second Department in which summary judgment was denied to the defendant even after contesting the Department of Health lead paint violations, which the Department of Health then rescinded!

There is a cautionary asbestos trial court decision that should be a warning to all practitioners.  Personal jurisdiction is a hot issue in asbestos litigation right now as many plaintiff’s firms are filing cases in New York that in fact have no connection to the state, as it is, to say it mildy, a generous jurisdiction for plaintiffs.  Personal jurisdiction is an affirmative defense in New York, so even if you have a meritorious claim, it will be deemed waived if not specifically raised as an affirmative defense when responding to the Complaint.

And now for this month’s dad (mom) joke:

Why did the kids give their mom diapers for Mother’s Day?

Because she wanted to be pampered.
4/24/19            LM v New York City Hous. Auth.  
Second Department
Alleged lead paint violations that were rescinded by the Department of Health are insufficient to grant summary judgment to landlord defendant.

The infant plaintiff allegedly sustained injuries from exposure to lead-based paint while residing in an apartment of a multiple dwelling owned by the defendant, New York City Housing Authority. The New York City Department of Health and Mental Hygiene (DOH) conducted an inspection of the subject apartment and determined that there were unsafe levels of lead in the apartment. The defendant contested the DOH's findings of lead violations and retained an independent consultant who determined that the samples "achieved the federal guidelines for lead paint." The DOH then accepted the defendant's contestation and rescinded the violations.
The Second Department affirmed the trial court’s determination that the evidence submitted by the defendant in support of its motion, which included the conflicting inspection reports prepared by the DOH and the independent consultant, failed to eliminate all triable issues of fact as to whether the lead in the subject apartment exceeded the statutory threshold.
4/29/19            Gayoso v. American Honda Motor Corp.
Supreme Court, New York County
Potentially meritorious personal jurisdiction defense waived for failure to plead as an affirmative defense.

Decedent's alleged exposure to asbestos - as relevant to this motion - was from observing mechanics work on brakes and clutches from defendant Nissan and its predecessor company, Datsun cars, at a gas station in Fort Lauderdale, Florida, in the late 1970’s.  At all times relevant to exposure from Nissan, decedent resided in Florida and was exposed to asbestos outside the State of New York.  Nissan further established that it had never operated a headquarters or maintained a principal place of business in the State of New York.  Although this would appear to be a meritorious defense, the trial court, citing the explicit provisions of NY CPLR 3211(e), held that Nissan's failure to assert an affirmative defense of lack of personal jurisdiction or to specifically object on the grounds of personal jurisdiction, is grounds to deem the defense waived.

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

Dear Readers,
Life has certainly begun taking some interesting turns, both personally and in the practice of law.  The last few months at the McCarthy household have been filled with home renovations, daycare tours, and doctor’s appointments, all in preparation for the birth of Baby Girl McCarthy this August.  We are very excited and very terrified.
In the world of civil practice, we’ve been seeing some very interesting and timely (at least in terms of the news and current events) claims come through the door, including lawsuits related to the opioid crisis as well a number of sexual tort, harassment, and bullying claims.  It is a very interesting time to be a civil practitioner and I’ve spent a considerable amount of time thinking about how some of the claims we are seeing are different than the traditional slip/trip and fall claims we see so frequently. 
One of the (many) things that set opioid and sexual tort lawsuits apart from most other civil litigation is the public’s interest in the claims.  That interest, which typically relates to both the allegations and the value of the case, have inspired some attorneys to employ the unorthodox strategy of trying their cases in the media.  In opioid suits, this might mean leaking internal documents obtained in discovery from a defendant-corporation (as was the case in a number of different, recent actions against Purdue Pharma and Johnson & Johnson) to the media; in sexual tort cases, this could be as simple as pleading a specific dollar amount of damages in a publicly-filed Complaint (as was the case with a recent Complaint filed against the Diocese of Buffalo, which pled damages totaling $300 million).  From a defense perspective, the use of confidentiality agreements is now of renewed importance.
In both state and federal court, the parties may voluntarily enter into stipulated confidentiality agreements outlining the scope of any permissible (or impermissible) use of disclosed materials for non-litigation purposes.  As with most things, if the parties are unable to agree on the terms (or scope) governing the use of confidential information, they may ask the Court to intervene.  Courts may, at their discretion, entirely prohibit, limit, or allow, the use of discovery of various materials for non-litigation purposes. Given their discretionary nature, appeals to the appellate division or circuit courts following the trial court judge’s ruling on the provisions of a confidentiality agreement or protective order are very hard to win.
Ultimately, confidentiality agreements are intended to ensure the free flow of information during discovery and, in appealing to a Court for protection, a persuasive argument about why a confidentiality agreement is necessary (for example, the documents to be exchanged will include embarrassing or private information) should also highlight the defendant’s desire to provide all necessary information without fear that plaintiff’s counsel will provide copies of sensitive documents to colleagues representing other people and/or to the media. Defendants should also appeal to the court with efficiency arguments, pointing out that cases will move through the litigation process, and ultimately the court’s dockets, at a faster pace if they are unencumbered with repeat discovery disputes over sensitive information and/or press involvement.

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Greeting Subscribers!
This month, I report on the Markel case, which involves an independent medical examination and whether the defense is entitled to the notes taken by plaintiff’s watch dog during the examination. I also highlight a case discussing Arons authorizations or speaking authorizations, which authorizes defense counsel to conduct off-the-record interviews with the treating physician, if a HIPAA-compliant authorization was utilized. Please send me an email if you have any questions, or if you have successfully used an Arons authorization and if it was beneficial to your overall defense strategy.

03/19/19          Markel v Pure Bower Camp, Inc.
Appellate Division, First Department
In a matter of first impression, the First Department held that to obtain discovery where an independent medical examination’s observer is not expected to testify at trial, there must be a showing that the substantial equivalent of the information is not otherwise available without undue hardship.
In a gym patron’s action for injuries allegedly sustained during an exercise drill, the trial court denied plaintiff’s motion for a protective order and to quash a subpoena served on the individual who accompanied her to her independent medical examination (“IME”).
The categories of “watch dogs” that a plaintiff is entitled to have present during an IME include the attorney’s or law clerks from the attorney’s office, paralegals, interpreters, and a nurse. In this case, the First Department determined that, as the “watch dog” is an agent of plaintiff’s attorney, the notes were materials prepared during litigation for trial; thereby bringing them under the conditional privilege of CPLR § 3101(d)(2). As such, they may only be obtained upon a showing that the defense has a “substantial need” for them to also prepare their case for trial.
Here, the Court held defendants failed to make such a showing, particularly because defendants’ doctor conducted the IME and “can provide defendants with any information concerning what generally occurred and what he did at the IME” and because of the “important consideration in the Court’s analysis [by] plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.” According, the trial court was reversed, and the protective order was granted.

04/18/19          Husovic v Structure Tone, Inc.
Appellate Division, First Department
Plaintiff’s CPLR § 3126 motion for spoliation sanctions granted where defendant failed to demonstrate a reasonable excuse for its failure to comply.
The trial court denied defendant’s motion to vacate an order imposing discovery sanctions after it previously issued three separate discovery orders directing the production of documents, including one that expressly set forth what documents needed to be provided and warned that failure to comply may result in sanction. The First Department unanimously affirmed as the trial court properly exercised its discretion in resolving limited factual issues in plaintiff’s favor and did not abuse its discretion.

04/17/19          McNelis v Thomas
Appellate Division, Second Department
The trial court properly exercised its discretion by granting the sanction of striking plaintiff’s complaint for failing to provide the names of his medical providers and related authorizations.
After defendants moved to dismiss the complaint due to plaintiff’s failure to identify his medical providers and to provide authorizations, plaintiff served a response which made reference to an affidavit in which he stated he had conducted an unsuccessful search for the names and addresses of his medical providers and had not located any documents which would refresh his recollection as to the names of, his physicians, pharmacies, or insures. When defendants objected to this response, plaintiff replied he was “not required to be the investigative agency” for the defense and that he would sign authorizations if defendants identified his providers. The trial court granted defendants motion.
The Second Department affirmed as plaintiff provided no excuse for his repeated failure, for more than two years, to comply with the trial court’s orders directing him to provide the names of his medical providers and authorizations to obtain medical records.

05/02/19          Cashbamba v 1056 Bedford LLC
Appellate Division, First Department
Plaintiff’s failure to comply with the conditional order of preclusion results in dismissal of complaint.
The trial court granted defendants’ post-note-of-issue discovery motion directing plaintiff to appear for in an IME, to provide an authorization for the release of plaintiff’s employment file, and to respond to defendants’ demands for Arons speaking authorizations.
The First Department reversed since defendants failed to submit an affirmation of good-faith in support of their discovery-related motion. The Court held the letters exchanged between counsel is insufficient to set forth the time, place, and nature of the consultations that counsel had to try and resolve the outstanding discovery issues. Defendants failed to provide an adequate explanation for their delay in seeking to compel the examination after plaintiff failed to appear.

Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Marina A. Barci [email protected]
Dear Readers,
It has been such a busy few months that nothing exciting has happened for me to tell you about! If you read my no-fault column in Coverage Pointers, you already know my only funny story from the last several weeks about my mock trial team’s end of the year party (so go ahead and skip this part). As you may recall, I coach a local high school mock trial team, and our end of the year party was a few weeks ago. What was supposed to be a fun-filled Saturday afternoon of laser tag turned into a wait-filled Saturday afternoon when technology failed. The place we were at to play laser tag had a system malfunction, so no laser tag for us. They ended up refunding us and gave us some free arcade games to play. Luckily, my team is a pretty good sport and won some prizes in the arcade. Unluckily for the 7 or so birthday parties who were also planning on playing laser tag, we watched from afar as the parents tried to wrangle what felt like hundreds of children under the age 12 (after being let loose in the arcade) to tell them their birthday party fun was over. It was a sight to see.
There are three elevator cases in my column this week and one escalator accident. This is the first time I’m reporting on an escalator accident since I took over this column! They do not happen very often. In the escalator matter, the Second Department touches on the standard for identifying the source of an accident. Then, the First Department addresses evidentiary issues related to code violations and spoliation. Finally, the last two Second Department cases discuss the precedential effect of a worker’s compensation board decision and a when a municipality owes a special duty to an injury party. Read on for more information. 
Until next time,

03/20/19          Kerzhner v. New York City Transit Authority
Appellate Division, Second Department
Plaintiff’s testimony regarding condition of escalator step was sufficient to identify causation.

Plaintiff alleged that one of the steps on an escalator in one of the defendant’s subway stations was wet and that caused him to slip and fall. Defendant moved for summary judgment arguing that they had no notice of any dangerous or defective condition and that plaintiff could not identify the cause of the accident. The court found that, contrary to the defendant’s assertion that the plaintiff’s deposition testimony regarding the wet step was not credible, the wet step was the identified cause of the accident and defendant presented no evidence regarding notice. Thus, summary judgment was not appropriate and the Second Department overturned the lower court’s decision, which was in part based on the sufficiency of the plaintiff’s papers. This is a good reminder that no matter how poorly written your opponent’s arguments are, you as the moving party still have to prove your prima facie case and show no triable issues of fact exist.

03/26/19          Shannon v. New York Times Bldg., LLC
Appellate Division, First Department
Code violations and destruction of evidence do not allow for a finding of summary judgment.
Plaintiff sued for injuries he allegedly sustained when the elevator he was riding on malfunctioned. There were issues of fact however as to the nature and extent of the malfunction, including plaintiff’s claim that the elevator went into a “free fall.” Defendant’s disputed that they had notice of any defect leading to a malfunction, however four months prior to the accident the City of New York had issued a violation related to the subject elevator’s hoist ropes, one of which broke on the date of the accident. Not only were there issues of premises liability that precluded summary judgment, there were also issues of contractual and common-law indemnity and punitive damages. Related to the punitive damages, there was evidence that the elevator cables were cut up and disposed of without any inspection being documented or photographs taken, which is a good reminder not to destroy evidence during an ongoing investigation/law suit.

04/03/19          Roserie v. Alexander’s Kings Plaza, LLC, et al.
Appellate Division, Second Department
Worker’s Compensation Board finding that pre-existing condition was not exacerbated by elevator accident was binding in separate liability action.
Plaintiff alleged that she was riding an elevator in the building where she worked when it suddenly dropped and came to an abrupt stop. One of the defendant’s she sued was Schindler Elevator Corp., who serviced the elevators in the building. Schindler moved for summary judgment dismissing the plaintiff’s complaint in its entirety, or in the alternative dismissing the branch of the complaint for plaintiff’s claims related to exacerbation of a pre-existing condition.
With regard to Schindler’s potential liability, “an elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found. Moreover, negligence in the maintenance of an elevator may be inferred from evidence of prior malfunctions.”
In this case, there was evidence that Schindler had received multiple service calls to repair he subject elevator prior to the accident, including one the day before. Thus the motion for summary judgment dismissing the complaint in its entirety was denied. As for the alternative motion on the pre-existing injury, the court found that the plaintiff had brought a worker’s compensation claim in relation to this accident as well, and the worker’s compensation board had found that there was no evidence that the pre-existing condition exacerbation was causally related to the elevator accident and plaintiff failed to establish any triable issue of fact that she did not have a full and fair opportunity to litigate the  issue before the worker’s compensation board. Therefore, full effect was to be given to the worker’s compensation board’s decision that no exacerbation was caused by the elevator accident and that branch of Schindler’s motion dismissing the claim was correctly granted by the lower court.

04/24/19          Ortiz v. City of New York
Appellate Division, Second Department
Plaintiff failed to prove that the City defendants owed her a special duty of care.
Plaintiff was in a moving elevator in the Brooklyn Tabernacle when it stopped abruptly. Plaintiff called 911 and the NYC fire department responded, but before they could get the plaintiff out of the elevator it dropped suddenly, allegedly causing injury to plaintiff’s knee. Plaintiff then sued numerous people, including the City of New York, the Comptroller of the City, the NYC Fire Department (collectively referred to as the City defendants), the Tabernacle, and Prestige Elevator (the elevator maintenance company).
The City defendants moved to dismiss the complaint and the motion was granted. The court found that when a plaintiff commences a negligence action against a municipality, it must first be decided whether the entity was engaged in a proprietary function or was acting in governmental capacity at the time the claim arose. If the municipalities actions fall on the propriety side, the suit is subject to the ordinary rules of negligence applicable to non-governmental parties. If the municipality was exercising a governmental function, and extra step applies and it must be determined whether they owed a special duty to the plaintiff. If no special duty can be proven, the plaintiff’s claims must be dismissed because they cannot meet their burden. Here, the plaintiff conceded that the City defendants owed him no special duty, so the case against the City defendants was dismissed.

Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
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Marina A. Barci
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