Premises Pointers - Volume II, No. 2

Premises Pointers
Watch your step!


Volume II, No. 2
Monday, July 16, 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




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 week was a busy one in the national news for lawsuits and potential lawsuits.  First, there was the $4,690,000,000 verdict against Johnson & Johnson awarded to 22 plaintiffs by a Missouri jury.  The jury awarded $550 million dollars in compensatory damages and $4.14 billion dollars in punitive damages for Johnson & Johnson allegedly failing to warn that its talcum powder raised the risk of ovarian cancer.  Johnson & Johnson argues that its powder has always been safe and asbestos-free and has made clear the company intends to appeal the verdict on multiple grounds. See NY Times article here

Then we have Build-A-Bear.  As an attorney who handles retail and hospitality claims for a number of clients, the Build-A-Bear international sales promotion – Pay Your Age Day – caught my attention.  What started as a sales promotion wound up creating chaos in malls and stores everywhere and turned into a PR nightmare for the brand ( Build-A-Bear says there was no way for them to predict the impact and consequences of the promotion (yet the company issued warnings of long lines the day before).  According to reports, there were lines up to a mile long and waits of 5-7 hours.  It was described as a Black Friday like frenzy in most places.  Here in Buffalo was no different.  Local police agencies, who were called to assist with crowd control at the mall where our Build-A-Bear store is located, said they had no advance notice of the event and were behind the eight ball in terms of managing the scene.  The promotion ultimately ended with an announcement from Build-A-Bear stating that additional guests could not be accepted due to crowd safety concerns.  Putting the PR issues aside for a moment, what about the liability exposure the company may face?  While I have not seen any reports (yet) of guest injuries, with local authorities not being notified, no apparent plan for crowd control and no security it seems like a recipe for disaster.  I would say this is a lesson learned for retailers who might be contemplating a large scale promotion like this one. 

Getting back to the New York State beat, this month we are again covering two cases involving surveillance video and the consequences of not preserving it (see Todd and Marc’s columns both of which highlight cases with surveillance issues and resulting problems for the defendants).  Again, we see that training employees and setting policies for preservation are both 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!

Lastly, attached is an article entitled “A Field Guide to New York’s Recreational Use Statue General Obligations Law § 9-103” published by Premises Pointers contributors Chris Potenza and Jamey Maswick in the Spring 2018 NYSBA Torts, Insurance & Compensation Law Section Journal.

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]


07/11/18          Pinzon v. IKEA New York, LLC.

Appellate Division, Third Department

Personal service matters!!

Plaintiff commenced lawsuit by the filing of a summons and verified complaint on September 20, 2016. The affirmation of personal service executed by the plaintiff’s counsel stated that on September 24, 2016, at the defendant’s store located in Hicksville, he personally served the defendant with a copy of the summons and complaint by delivering it to “JANE DOE, A PERSON WHO REFUSED TO PROVIDE NAME.” Defendant argued the manner of service failed to comply with the requirements of CPLR 311–a and the Court agreed noting that personal service upon a limited liability company shall be made by delivering a copy personally to any member or manager of the company, any agent authorized to receive process, or any other person designated by the company to receive process. The defendant, by its evidentiary submissions, demonstrated that the individual purportedly served was not authorized to receive process on behalf of the defendant, and thus, jurisdiction over the defendant was not obtained.  Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 306–b to dismiss the complaint for lack of personal jurisdiction.


 07/11/18         Singletary v. Alhalal Restaurant, Inc.

Appellate Division, Second Department

Summary judgment granted but then reversed in a strongly worded opinion by Appellate Division emphasizing basic rules of fairness and due process

Plaintiff alleges that while walking on a sidewalk adjacent to the defendants’ premises in Brooklyn, a “hanging awning, its steel supports and mounting infrastructure suddenly and unexpectedly fell and caused” the plaintiff severe injuries.  Following discovery, defendant moved for summary judgment dismissing the complaint, contending that the plaintiff was not struck by the awning. The defendants produced what they claim is photographic evidence of the plaintiff arriving at the premises after the awning fell, and alleged that the plaintiff falsely claimed that she had been struck by the awning.  The Supreme Court granted the defendants’ motion on a different ground, finding that there was no evidence that the defendants had notice of the defective condition that allegedly caused the plaintiff’s injuries. The plaintiff appealed and the Appellate Division we reversed finding that the photographic evidence submitted by the defendants did not establish that the plaintiff fabricated her claims.  Significantly, the Appellate Court held that the Supreme Court should not have granted summary judgment on an issue not raised by the defendants’ motion because the plaintiff had no opportunity to address the issue of whether the defendants had notice of the defective condition that allegedly caused the accident. The plaintiff’s “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process.” The Appellate Division held that “apart from considerations of simple fairness, allowing a summary judgment motion by a defendant to bring up for review every possible defense that could be asserted by that defendant would be tantamount to shifting the well-accepted burden of proof on summary judgment motions.”


07/06/18          Jenkins v. CEC Entertainment, Inc.

Supreme Court, Kings County, New York

Assignment of fault to a six-year old child has not generally been upheld in New York

A 6 year old fell from a children’s helicopter ride at a Chuck E. Cheese restaurant by defendant.  In moving for summary judgment against the infant plaintiff, defendant argued that the plaintiff’s improper use of the ride was the sole proximate cause of the accident.  Surveillance video of the incident shows the child standing on the back of the ride, while another child was in the seat.  The infant plaintiff then jumped off the ride while the ride was still in the air.  When deposed, the plaintiff admitted he understood how to use the ride properly while sitting in the seat with the seatbelt on.  Defendant further put forward evidence that the ride was tested and fully operation the day before the accident.  In opposition to the motion, plaintiff argued that a child’s misuse of the ride is foreseeable, that defendant failed to provide adequate adult supervision and that defendant failed to establish the ride was not inherently dangerous.  Plaintiff offered an expert who opined that the manner in which the ride was placed, the lack of safety precautions built into the design, and the lack of supervisions and instruction provided by defendant’s staff combined to create a dangerous condition.  While the court acknowledged the child misused the ride, such misuse was foreseeable.  The court went on to explain that the sufficiency of the precautions taken by a landowner to prevent injuries is almost always a question of fact and that the “assignment of fault to a six-year old child has not generally been upheld in New York, as young children are not held to the same standards as adults with regard to their ability to appreciate the risk of injury.”  The court ultimately denied defendant’s motion.


07/06/18          McCarthy v Mario Enters., Inc.

Appellate Division, Third Department

Bar room brawl between patron and bouncer results in employer and employee being sued on theories of negligent maintenance of the premises and negligent hiring/supervisionDefendant The Stone Lounge employed defendant Bonawitz as a bouncer.  Bonawitz, while working, punched the plaintiff in the face.  More than two years later, plaintiff commenced lawsuit alleging that defendants breached their duty to keep the premises safe and negligently hired and supervised employees, specifically Bonawitz.  Defendants’ pre-answer motion to dismiss based on the expiration of the statute of limitations was granted and plaintiff appealed.  While plaintiff alleged negligence in failing to maintain a safe premises, Bonawitz's actions as alleged in the complaint were intentional and, therefore, any claim based on them was barred by the one-year statute of limitations (see CPLR 215 [3]). The court reiterated that "Plaintiff cannot avoid the statute of limitations by reframing his intentional tort claims as a claim based on breach of the duty to keep the premises safe.”  Thus, the cause of action against, though plead as a failure to maintain the premises, was properly dismissed.  The second cause of action alleged that the employer negligently hired and supervised Bonawitz. Supreme Court dismissed this cause of action based on cases holding that, "[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondent superior, and the plaintiff may not proceed with a claim to recover damages for negligent hiring, retention, supervision, or training." The rationale for this rule "is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training."  The court noted that here the employee is alleged to have acted negligently, not intentionally and that plaintiff adequately alleged that the employer defendants negligently hired, supervised and retained Bonawitz even though they knew or should have known of his propensity to assault or intentionally inflict harm on others. Moreover, the negligence of an employer is not transformed into intentional conduct simply because the employee's wrongful conduct was intentional. Thus, plaintiff's allegations of negligence were timely asserted within the applicable three-year statute of limitations. 


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

By: Todd C. Bushway

[email protected]

I am not a heat person and it is just too hot.  My response to those who raise the specter of a howling winter storm, just remember you can put on a sweater and a grab a hot beverage when the temperature dips.  There is no similar remedy for heat and humidity.

Not a whole lot to report in terms of new music to get you through the day.  There were a few new discs I was eagerly awaiting in the last couple of weeks – let’s just say what I hear and what the reviewers heard were two different things.  But not all is lost.  A bunch of concert announcements will make my October and November very busy.  Elvis Costello, Johnny Marr, Social Distortion, The Bottle Rockets and Guided By Voices are all on the bill, as well as bunch of shows in smaller clubs.  I can’t tell you much about Guided By Voices, but Kevin Zanner, one of our corporate partners, is all in and he has yet to steer me wrong.

On to the cases – we have a couple of negligent supervision cases to review and a case that looks at an application to serve a late notice of claim covering two separate accidents.



Beninati v. City of Troy       

Appellate Division, Third Department

To answer whether the plaintiff’s hockey team and coach could be liable for negligently supervising the plaintiff, one must first know under whose supervision the plaintiff was at the time of the accident.

Plaintiff was a 13 year old member of a hockey team playing in a tournament at a facility owned by the defendant and was injured when he fell from a bench in a locker room at the facility.  Plaintiff sued the City, alleging that the city had failed to maintain the premises in a safe condition.  The City then commenced a third party action against the organization for the plaintiff’s team, alleging that they failed to properly supervise plaintiff and the other players.   The hockey team moved for summary judgment, with the determinant issue being who had custody (and therefore the obligation to supervise) of plaintiff at the time he was injured – his parents or the team.  The lower court denied the team’s motion, which was then appealed.

The tournament consisted of teams playing multiple games on the same day.  Plaintiff’s team had completed its first game and had a period of time before the next game.  During this time, plaintiff, as did the other players, left with him parents to get lunch and then returned to the locker rooms.  Plaintiff testified that all the coach said was to go get lunch, with no further direction on when to return.  The coach testified that he told the team to return to the locker room after lunch.

The players first went to their assigned locker room, and then moved to a second room, where several players on plaintiff’s team began playing mini hockey (typically a pickup game where the players use small sticks and play from their knees).  Plaintiff was watching the game when the bench he was sitting on fell forward.  At the time the incident occurred, the coach was in the parking lot and it does not appear that any other coaches or parent(s) were with the team.  The language in the decision seems to indicate that the players were not supposed to be in the second locker room.  The coach testified that he would permit the players to play mini hockey but would not have allowed the players to be in an “unauthorized area.”

For reasons that were not entirely clear (one would assume tournament records would exist somewhere), other than agreement that the first game ended around noon, nothing in the record established how much time there was between the teams’ games.  Plaintiffs alleged the incident occurred around 1:00 pm and that lunch took about ½ hour, after which he told his father he was going back to the locker room with his teammate.  Plaintiff’s coach testified that there was typically an hour between games but he thought the time was shorter on that day, possibly 30-40 minutes, but he could be sure without a schedule.  Other testimony indicated the second game began at 1:30 pm, 2:00 pm or even 3:00 pm.

The key question on the motion then became whether the incident had occurred during the time the coach had directed the players to return to the locker room.  The court held that even though it was undisputed that the coach was not in the locker room, the inconsistent testimony about the length of time between the games and when the players were supposed to return to the locker room created a question of fact regarding whether the team, through the coach, was under an obligation to provide supervision (as opposed to the parents) at the time of the accident.

My initial thoughts on reading the case were twofold.  The absence of a tournament schedule somewhere in the record seemed odd - the case was about what happened at a scheduled event and at what time the incident happened.   My second thought had to do with the fact that none of the discussion focused on the fact that there were apparently no adults (coaches or parents) present with the team when the incident happened.  Somebody had to be in charge.  Does the fact that the team was in the locker rooms, as opposed to a public area open to anyone, make any difference?  Were there rules or policies that restricted who could be in the locker rooms?



Mills v. Niagara Frontier Transportation Authority, et al.

Appellate Division, Fourth Department

Summary judgment denied in slip and fall case because defendants did not establish they lacked notice of the condition and did not preserve the portion of their surveillance video that would have supported this position

Plaintiff slipped and fell while a passenger on a bus owned by defendant in a puddle of hydraulic fluid caused by a malfunctioning piece of equipment.  Defendants’ motion for summary judgment was denied.  The Fourth Department determined that the motion was properly denied insofar as it sought to dismiss the negligence claims based on notice, but properly denied the motion with respect to all other theories.  In support of their motion, defendants submitted a DVD containing video of the incident that was recorded by security cameras inside the bus. The video begins at approximately 10:57 p.m., immediately after a scheduled layover. When the video begins, the entire bus is empty and a large puddle of fluid is clearly visible on the floor of the upper rear deck of the bus. It is several feet in length and, at its widest, is approximately one foot across. At the beginning of the video, one can see dark areas to the front and side of the puddle as well as on one step leading up to the rear deck. Those dark areas appear to be track marks that existed before any passengers boarded the bus following that scheduled layover. Plaintiff enters the bus at 11:00:04 p.m., and he slips in the puddle at 11:00:21 p.m., striking his head and shoulder on a seat in the back of the bus. During the entire video, which is approximately 30 minutes in length, the size of the puddle does not change appreciably.  Defendants also submitted excerpts of deposition testimony from the bus operator, who maintained that he had inspected the bus during the layover (which is not captured on the video) and that the puddle did not exist at that time. According to defendants' route information reports, which were submitted in support of the motion, the layover occurred from 10:40 p.m. until approximately 10:58 p.m. and, as noted above, the video began at approximately 10:57 p.m., i.e., one minute before the layover concluded.  Although the bus operator claimed that he inspected the bus during the layover and did not see any oil on the floor, there was no one else on the bus at the time, and defendants did not preserve the relevant portion of the video of the bus interior during the layover. Thus, the court concluded the plaintiff was not in a position to refute the bus operator's claims, and a jury could disbelieve those claims even though they are uncontroverted.  Hence, had defendants maintained a greater amount of video and if it corroborated the bus driver’s claims, the motion would likely have been granted.



Szymkowiak v. New York Power Authority

Appellate Division, Fourth Department

Late Notice of Claim – when an application to serve a late notice of claim contains two separate claims, each from its own injury producing event, the two claims must be assessed on their own merits.

Mr. Szymkowiak worked for an outside contractor hired to perform work on several bridges located on the defendant’s property.  He was injured on two different occasions – the first in September, when he fell off of his employer’s truck and injured his arm and shoulder, and again in October, when he fell from a crane platform, allegedly re-injuring his shoulder and sustaining a head injury.  A little over a year later, he filed an application to serve a late notice of claim.

The lower court allowed the notice of claim for both injuries.  The Appellate Division, Fourth Department reversed in part, finding that plaintiff had not met his burden of proof with respect to the first accident, and therefore that claim should not have been allowed to proceed.  The court noted that plaintiff had not demonstrated a reasonable excuse, a failing which is not fatal where claimant can show actual notice and a lack of prejudice.  For the first accident, the court agreed there was no prejudice, citing to case law holding that the transient nature of a construction case made it unlikely the relevant conditions would have existed even with a timely filing.

Plaintiff’s undoing was establishing actual notice.   While there was an incident report, the accident was not referenced in the construction paperwork for the project and despite “having engaged in pre-action discovery, claimant is unable to provide any evidence that the incident report related to the first accident was ever transmitted.”  The decision does not identify the source of the incident report, but since the first incident involved claimant falling off of his employer’s truck, that report may have been prepared by the employer, which if not provided to it, is not something the Power Authority would have any knowledge of.



Toxic Exposures

By: V. Christopher Potenza [email protected]

It was a record heat in Buffalo for the 4th of July as the temperatures reached the mid-90’s.  For all the whining and complaining we do in February, there really is no better place to be in the summer than the shores of Lake Erie.  As the Canadians like to say, we get a “two-fer” as we celebrate Canada Day and Independence Day in the same week.  This is not to be confused with a “two-fur,” which is also Canadian slang for a package of adult beverages.  Needless to say, I did celebrate the “two-fer” with a “two-fur” on the Canadian side of the border, at least until the fireworks started, which scared the living daylights out of my children, then a spark hit a power line, blew a transformer, and knocked out power to 30 plus cottages.  This only led to increased consumption, lest the “two-furs” get warm.

There are a few interesting decisions in lead paint this month, including a dismissal on statute of limitations grounds and the denial of summary judgment to defendants for alleged exposure at a New York City homeless shelter.

This month’s Canada Day/Independence Day themed dad joke:

What did the Canadian Flag say to the American Flag?

Nothing, it just waved (politely of course).


06/21/18          Haynes v. Williams

Appellate Division, Third Department

Twenty-four year old plaintiff’s claim for childhood lead-paint exposure dismissed on statute of limitations grounds. 

Plaintiff commenced this when he was 24 years old, seeking damages for injuries from lead poisoning that occurred when he was a child living at properties owned by defendants. Actions to recover damages for a personal injury generally have a three-year statute of limitations that begins to run on the date of the injury. However, where, as here, the personal injury claim is premised upon damages “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property,” the three-year statute of limitations runs “from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.” Testimony and medical records established that plaintiff was diagnosed with lead poising at age 3.  The Court rejected plaintiff’s argument that the statute of limitations did not commence until July 2013 when, after receiving a solicitation letter from his attorney, he became aware of his exposure to lead as a young child.


05/5/18            D.H. by Maria R. v. New Latham Hotel Corp.

Appellate Division, First Department

Defendants failed to meet burden of proof seeking dismissal of claims of lead paint exposure at homeless shelter.

The First Department affirmed the denial of the summary judgment motion of defendant New Latham Hotel Corp. and third-party defendant's motion for summary judgment dismissing the complaint and the cross claim for common-law indemnification as against New Latham and dismissing the third-party claim for contractual indemnification.

Plaintiff alleges damages for lead poisoning she sustained while residing in a homeless shelter operated by defendants Icahn House East, LLC and The Children's Rescue Fund, pursuant to a contract with the New York City Department of Homeless Services, and located in a building owned by defendant New Latham Hotel Corp. and managed by third-party defendant, 4 East 28th Street Corp.

Defendant New Latham failed to establish prima facie that it lacked actual or constructive notice that plaintiff was living in Room 517 of the shelter.   The knowledge of 4 East's hotel manager that the shelter was for women and their children up to the age of 13 could be imputed to New Latham, because, contrary to New Latham and 4 East's contention, the record does not establish that 4 East was a separate legal entity from New Latham.  The manger further testified that he was aware that lead paint presented hazards and that all the units leased by Icahn would have children staying in them, and he testified that he had arranged for Room 517 to be cleaned and inspected for lead before plaintiff sustained any injury from exposure to lead.

The court also correctly denied dismissal of the third-party claim for contractual indemnification, since the record fails to demonstrate that plaintiff's injuries were not caused by 4 East's breach of its sublease with defendant Icahn, which, inter alia, required it to indemnify and hold Icahn harmless for bodily injury arising out of its negligence in keeping Room 517 compliant with all relevant New York State, New York City, and federal laws, regulations, and codes, or by any negligent performance of that agreement on its part.


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

By: Anastasia M. McCarthy [email protected]


Dear Readers,

Well, here we are—the height of wedding season.  In the next two weeks, four of my friends will be tying the knot(s) around the country—the first two this Saturday (also known as “yesterday” to you…or maybe “two days ago” if you don’t read this until Monday) in Syracuse, New York and Pompano Beach, Florida; the third, the following Saturday in Buffalo; and the Fourth, next Sunday in Burlington, Vermont.   So, tomorrow morning, rather than fight the morning traffic into downtown Buffalo, I will be headed to scenic Central New York for the nuptials of one of my dearest friends—a person who stood by me even after once watching me shove an entire oatmeal cream pie in my mouth; a true friend who never once judged my embarrassing love of the television show, Ghost Adventures.

In many ways, this summer is not so unusual.  It feels like the last several summers have involved at least one wedding…or five, but this time, I find myself feeling rather reflective and…well…old.  I remember when the summer season was about riding my bike to swim in a friend’s pool or running through the sprinkler in the front yard.  Now, I’m the friend with the pool, and the pool vacuum, and the pool skimmer, and the pool chemicals needing constant re-balancing. The first two cases this month were inspired by the foregoing rambling, somewhat melodramatic, thoughts—the first involves a girl who just wanted to play her fiddle at Suzuki violin camp, but found herself hampered by an unusual allergy; the second, a slam dunk competition gone wrong.  The last case was found in my usual monthly search for Premises Pointers cases.  To be honest, it has almost nothing to do with anything, except that it is interesting and your summer (and my summer) should, at the very least, be about interesting things.


06/22/2018      Greene, et al. v. New England Suzuki Institute

United States District Court, District of Maine

The one where a child’s parents are banned from summer camp!

*Case available upon request.

E.G., a 12 year old aspiring violinist and student of the Suzuki string method, suffered from an unusual and severe allergy triggered by exposure to animal fur and saliva.  Because her allergic reactions can quickly leave her unable to breathe, speak, or swallow, the allergy is considered life-threatening and led E.G.’s physician to recommend that she avoid exposure to animals altogether.

Despite the unusual allergy, E.G. and her parents had attended the New England Suzuki Institute’s summer program for seven years. The week long program, held at Saint Joseph’s College of Maine on Sebago Lake in Standish, Maine, is the only Suzuki Method summer program in the southern Main region.  The program consists of music lessons for students learning to play string instruments and ends in a student performance at the end of the week.  Just as it is essential to the Suzuki method itself, parent involvement is essential to the NESI program.  Notably, although the program does not require the presence of animals, NESI administrators admit to having an informal practice of allowing families to bring pets and therapy animals to the program.

According to NESI, plaintiffs never complained about NESI allowing pets at the facility until 2016, when they observed another student with a therapy dog on site; E.G.’s parents, on the other hand, stated that during their seven year tenure, they provided at least three letters regarding E.G.’s allergy to the program leadership.   Nevertheless, it was undisputed that plaintiffs did raise a complaint about the therapy dog on site during the 2016 program and demanded the E.G. be provided an animal-free learning space, performance space, and dining facility.  Although plaintiffs claim that NESI did little to address their concerns, NESI stated that it spoke with both families and arranged to keep E.G.  physically separated from the student with the therapy dog and cleaned all classrooms and areas where the dog had been present throughout the day.  NESI administrators generally described their interactions with E.G.’s parents as negative, stating that plaintiffs accosted them, on numerous occasions, in an agitated, confrontational, antagonistic, and angry manner.  Indeed, just before the student performance at the end of the week, Mr. Greene approached NESI’s Assistant Direct and threatened her, stating that if the dog were present at the final concert, “there would be trouble.”  Things came to a boil when the therapy dog did appear at the final concert (he was actually outside the tent), and Mr. Greene not only confronted NESI administrators in an angry and aggressive manner, but also approached the parent of the other student and began questioning the child’s need for the dog in the first place.  By the end of the evening, the Assistant Director admitted that she had become fearful of Mr. Greene.

Despite their allegedly negative experience, plaintiffs returned to the program again in 2017.  According to plaintiffs, they contacted NESI before their arrival that June and reminded them of E.G.’s allergy and requested that animals be kept out of E.G.’s classrooms, performance space, and the program dining area.  NESI informed plaintiffs that they would ensure an animal free classroom, but that they would be unable to keep animals out of the dining area or performance space.  Ultimately, plaintiffs admit that E.G. did not encounter many animals during the 2017 program itself.  Like the year before, however, conflict arose during the program’s final performance when several families arrived with their dogs.  NESI administrators described plaintiffs’ response to seeing dogs at the final performance as “hyperaggressive and bellicose” particularly because the two dogs in the vicinity were a significant distance from the tent and under the control of their handlers.  At two different points during the final performance, however, plaintiffs approached NESI administrators, again in an agitated and angry manner, and demanded that NESI remove the dogs.  NESI and the families complied and at no point did any dog enter the performance tent.  Nevertheless, at the end of the performance, plaintiffs approached NESI administrators and expressed their “distress and concern” that NESI had done nothing to protect their child from exposure to animals. The conversation quickly escalated and Ms. Bernier, who was visibly angry, threatened to bring a gun to NESI so “everyone else could feel what she described as her level of anxiety.”   According to plaintiffs, they were simply trying to draw an analogy.

Shortly after the 2017 performance, plaintiffs received a letter from NESI’s attorney, accusing them of making an inappropriate, disturbing and/or threatening comment and advising plaintiffs that NESI had made a record of the statement and reported it to the police.  Later that fall, the NESI Board of Directors determined, and informed plaintiffs that, although E.G. was welcome to attend the 2018 program, her parents would not be invited to attend with her. Plaintiffs parents attempted to roll E.G., and themselves, in the 2018 program anyway.  NESI’s counsel then sent plaintiffs a second letter reiterating the Board’s decision to ban E.G.’s parents from the program and asking if they would like to designate someone else to act in their place.

That spring, plaintiffs filed a complaint on behalf of E.G. and, shortly thereafter, filed a motion for a preliminary injunctive relief to allow E.G.’s parents to attend the 2018 summer camp with  E.G.  Part and parcel with their motion, plaintiffs alleged that NESI was retaliating against them because of their attempts to advocate for their daughter’s right to an accommodation under the Americans with Disabilities Act.  NESI responded (a) that they were willing to accommodate E.G. and that (b) their decision to ban E.G.’s parents was due to their aggressive and threatening behavior, not their concerns about E.G.’s accommodation.

Ultimately, the Court denied plaintiffs’ request for a preliminary injunction, finding that the plaintiffs (1) had not established that they were likely to succeed on the merits of the retaliation claim because NESI met its burden of proving a legitimate non-retaliatory reason for banning plaintiffs (i.e. their hostile behavior and threat); (2) had not established that the balance of relevant impositions that would ensue without the injunction tipped in favor of plaintiffs.  Instead, the facts establish that the balance tips in favor of NESI, which must ensure the wellbeing and safety of all participants; (3) had not established that the injunction would advance the public interest.  Again, the Court found that the facts indicated the opposite—that the public interest in safety and security would be advanced by a denial of the injunctive relief; and (4) had not established that the harm they would experience absent the injunction would be irreparable.


05/23/18          Osmond v. Hofstra University, et al.

Appellate Division, Second Department

An assumption of risk victory!

Plaintiff, who was injured while participating in a slam dunk competition at a basketball camp, brought suit under a theory of negligent supervision.  The host of the camp, Hofstra University, argued (based on the primary assumption of risk doctrine) that the case should be dismissed because plaintiff had assumed the risk of injury when she elected to participate in the competition.  The Second Department, disagreeing with the trial court, determined that the Complaint should be dismissed because plaintiff assumed the obvious and apparent risks inherent in the slam dunk competition.  As such Hofstra’s duty only extended to making the conditions as safe as they appeared to be; it did not have a duty to prevent any and all injury that might stem from plaintiff’s participation in the competition.


07/10/18   Philipp v. Federal Republic of German and Stiftung Presussischer Kulterbesitz

United States Court of Appeals, District of Columbia Circuit

A Nazi art-heist case survives dismissal.

The legal heirs of several Jewish art dealers doing business in Frankfurt, Germany during the 1930s brought suit against the German Government (and a related agency) to recover an art collection allegedly commandeered by the Nazis.  Defendants moved to dismiss, arguing that it, and the agency that now maintains the museum where the art is currently exhibited, are immune from suit under the Foreign Services Immunities Act; that the heirs failed to exhaust remedies in German Courts; and that state law claims are preempted by U.S. foreign policy.

In 1929, three Frankfurt-based art firms formed a “consortium” and purchased a unique collection of medieval relics and devotional art known as the Welfenschatz (treasure associated with the House of Welf, an ancient European dynasty).  The collection contained several dozen pieces dating back to the 11th through 15th centuries and had previously been housed, for generations, in Germany’s Brunswick Cathedral.   Once purchased by the consortium, the firms displayed the Welfenschatz throughout Europe and the U.S.  The consortium later sold a few pieces but placed the remainder of the treasure (which at the time, retained 80% of the full collection’s value) into storage in Amsterdam.   In 1933, after the Nazi’s successfully seized power of the German government, the members of the consortium “faced catastrophic economic hardship” and in 1935, after “two years of direct persecution and physical peril to themselves and their family members,” the Consortium sold the Welfenschatz to the state of Prussia, which at the time, was controlled by the Nazis for 4.25 Reischsmarks (barely 35% of the treasure’s actual value.”)

Notably, Hermann Goering was, at the time of the purchase, the Prime Minister of Prussia.  Goering was not only a notorious racist and anti-Semite, but a “legendary” art plunderer who “seldom if ever” seized art outright, but preferred “the bizarre pretense of negotiations with and purchase from counterparties with little or no ability to push back without risking their property or their lives. “  Following Prussian “negotiations” with the consortium, the Welfenschatz was shipped from Amsterdam to Berlin, where Goering presented the collection to Adolf Hitler as a “surprise gift.”  All but one of the Consortium’s members then fled Germany; the remaining member died shortly after (officially, his cause of death was “cardiac insufficiency,” but it is rumored that he was killed when a Nazi mob dragged him to death through the streets of Frankfurt).

After WWII, the Welfenschatz was seized by the Americans, who eventually turned it over to defendant Stiftung Preussischer Kulturbesitz, “a German agency formed for the purpose of…succeeding to all of Prussia’s rights in cultural property.”  At the time of the court’s decision, the Welfenshatz remained on display at a SPK museum in Berlin.

In 2014, appellees, heirs of the Consortium’s members, sought to recover the Welfenschatz and the Heirs and the SPK agreed to submit a claim to a commission (the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property) that had been created pursuant to the U.S State Department’s Washington Conference Principles on Nazi-Confiscated Art, an international declaration that “encouraged” nations to develop alternative dispute resolution mechanisms to resolve Nazi-era art claims.  Following submission of the claim, the German Commission determined that the sale of the Welfenschatz was not a compulsory sale due to persecution and, therefore, the commission could not recommend the return of the Welfenschatz to the Heirs.   The heirs then filed suit in U.S. District Court, District of Columbia seeking the return of the Welfenschatz and/or $250 million (noted to be a “conservative estimate” of the collection’s value; they did not seek any further relief in Germany.  Causes of action included replevin, conversion, unjust enrichment, and bailment.

Germany moved to dismiss plaintiffs’ suit, arguing that it enjoyed immunity under the Foreign Sovereign Immunities Act; that international comity required the court to decline jurisdiction until the Heirs first exhaust remedies provided by the German Courts/government; and that U.S. foreign policy preempted the heirs’ state law causes of action.  The District Court rejected all three arguments and Germany appealed.

Ultimately, the D.C. Circuit Court affirmed the District Court’s decision to deny Germany’s motion to dismiss and holding (1) that the application of the expropriation exception (rights in property taken in violation of international law are at issue and there is an adequate commercial nexus between the U.S> and the defendant) to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA) and the exercise of subject matter jurisdiction over the Heirs claims by the District Court was appropriate; (2) that the Heirs were not obligated to exhaust remedies in German Courts as a matter of international comity before filing suit against Germany; and (3) that the Heirs’ state law claims of replevin, conversion, unjust enrichment and bailment did not conflict with, and were not preempted by, U.S. foreign policy (the multinational conference establishing principles that encouraged nations to  develop ADR mechanisms to resolve issues).

Notably, this case involved some interesting questions of first impression, including whether or not the taking of art could be considered to be part of the Holocaust’s genocide. In the end, this will be an interesting case to watch as it moves forward from the motion to dismiss.



The Ups and Downs of Elevator and General Litigation

By: James L. Maswick 

This month, we will feature a few cases which discuss Elevator Labor Law cases. As you may know, the triumvirate of Labor Law §§200, 240(1) and 241(6) make many cases difficult to defend for property owners and general contractors who have employees or workers completing their construction work from heights or with objects at heights.  This is a very plaintiff-friendly set of statutes make the defense attorney’s job much more difficult when attempting to defend these cases, as liability is basically a foregone conclusion in many of these cases.

This month, we will examine two recent cases that involved elevators and these Labor Law statutes. A short article this month as there have not been any “regular” liability elevator or escalator decisions worth reviewing lately. Please complete your public service by speaking to your local judiciary and asking them to issue some interesting decisions for us to review! Your cooperation is appreciated.

Also, as we dip our toes into a few Labor Law cases this month and you find it is an interesting and unique area, please consider subscribing to our sister publication, Labor Law Pointers, curated by David Adams of our Buffalo office. His newsletter is always quite entertaining as, in addition to the wonderful writing from David and his team, he frequently includes—hilarious (?), scary (?), interesting (?), not sure what the right word is here—photos of people in precarious positions in a Labor Law context. That being said, I want you to know that I only subscribe to Labor Law Pointers for the articles!  In any event, send Dave a note if you want to join the distribution list – [email protected].

Thank you, and I hope you are enjoying summertime! As always, if you find yourself in Lake Placid, please do not hesitate to stick your head in our office on Main Street and introduce yourself!


05/22/18            Radeljic v. Certified of N.Y., Inc.

Appellate Division, First Department

Summary Judgment Denied In Fall Into Elevator Shaft—Plaintiff’s Labor Law §200 And Common Law Negligence Claims Dismissed, But Labor Law §240(1) Claim remains

In a Labor Law §240(1) claim, one of the defenses is that the plaintiff’s own conduct was the sole proximate cause of the accident.  In this action, plaintiff brought a Labor Law §§240(1) and 241(6) and common law negligence claims regarding injuries suffered when plaintiff fell into an elevator shaft. The Court found that plaintiff’s motion for summary judgment was properly denied by the trial court because there were issues of fact whether his actions were the sole proximate cause of the accident for §240(1) purposes. While there was a safety harness available to plaintiff, there was conflicting evidence as to whether he could wear the harness while doing his work. Ostensibly, the harness would have stopped him from falling into the elevator shaft. There are also conflicting statements about whether a foreman who had ordered a barricade which would have prevented the fall to be moved had the authority to cause the barricade to be removed. The Labor Law §241(6) claim was denied based on the conflicting evidence involving the harness and the barricade. There was also conflicting evidence as to whether plaintiff tripped and fell on a rope which presented issues of fact, as well, which could not be resolved on a motion for summary judgment.

The Court dealt with the Labor Law §200 and common law negligence claims in the same way. There was conflicting testimony regarding the removal of the barricade and the alleged trip on the rope. The Court found that there were issues of fact whether plaintiff’s accident was caused by dangerous conditions created by the defendant or by the means or method of plaintiff or his employer’s work.


06/5/18            Villanueva v. 114 Fifth Avenue Associates, LLC

Appellate Division, First Department

At a construction site owned by 114 Fifth Avenue Associates, LLC and managed by defendant Structure Tone, Inc., plaintiff was injured when a 500 pound steel I-beam landed on his shoulder. The workers had been attempting to load the beam onto an internal freight elevator at the site and had opened a hatch at the top of the elevator to stand the beam on its end for transport. The beam fell about a half-foot onto plaintiff’s shoulder and caused physical injury.

The Trial Court’s finding on the Labor Law §240(1) claim providing summary judgment on liability to the plaintiff was correct as he was engaged in an activity covered by the statute and there was no adequate safety device to protect the plaintiff provided by the defendants. The half-foot drop of the steel beam was not a de minimis fall which can cause summary judgment claims of plaintiffs to be denied as it was a 500 pound beam – one can imagine even a short fall causing injury at that weight!

However, the Court found that defendants’ motions for summary judgment dismissing claims for common law negligence and Labor Law §200 should have been granted. While § 200 of the Labor Law codifies a common law duty to provide a safe working environment to construction workers, the Court found that there was no evidence that the Labor Law § 200 claims arises from an alleged defect or dangerous condition which was present. The manner and means of how work is completed, as opposed to an inherent defect on the premises, is not properly brought under Labor Law §200. The Court found that there was no inherent defect proven in the elevator and dismissed the Labor Law §200 claim.


Homeowner Liability, Recreational Accidents, and Discovery Angles

By: Marc A. Schulz [email protected]


Greeting Subscribers!

While I am disappointed there will be no more last minute drives to Cleveland to watch LeBron, I was hoping he would sign with the Lakers as they have been positioning themselves for a signing like LeBron for years before Kobe retired. Now they just need to get Kawhi and LeBron’s final streak will continue! This month’s issue features cases involving trivial defects, and preclusion orders, as well as another tip if you are moving for summary judgment. It is absolutely critical on such a motion, especially if your case is located with the Fourth Department, to ensure your motion adequately address each of every one of plaintiff’s claims unless you want to learn the hard like the defendant in the Jacques case discussed below. Until next issue, I hope you continue enjoying your summer…




03/30/18          Gami v Cornell University

Appellate Division, Third Department

A small pothole 1½ inches deep held a trivial defect even though it allegedly caused plaintiff’s bicycle to abruptly stop when her front wheel struck the deteriorated area of asphalt abutting a crosswalk

While riding her bicycle on campus, plaintiff suffered injuries after she fell over her handlebars when her 26-inch tire hit a 1½-inch deep and two-inch-wide pothole. She did not apply her brakes and the bicycle “got stuck in a ditch”, causing her to pitch forward. The trial court granted defendant’s summary judgment cross-motion to dismiss plaintiff’s complaint and denied plaintiff’s motion for partial summary judgment as to liability.

The Third Department affirmed dismissal as the record shows the size and location of the alleged defect and demonstrates plaintiff previously traversed this area several times before on her bicycle without incident. The Court also found the crosswalk, which was made of brick with a granite border different from the asphalt, would be visible to a bicyclist well before his or her tires made contact with the defect.

Justice Lynch’s dissent agrees that defendant met its prima facie burden of proving the defect was trivial, but held plaintiff raised a question of fact primarily on the disagreement from each party’s expert witness regarding whether the alleged defect could have caused plaintiff to be propelled over her handlebars and whether the defect had been there for a long period of time before the accident.


06/15/18          Jacques v Brez Properties, LLC

Appellate Division, Fourth Department

Property owner not entitled to summary judgment where it fails to address all of plaintiff’s claims

Plaintiff allegedly was injured when she slipped on loose concrete and caught her foot in a crack or groove in the pavement of defendant’s property. The trial court denied defendant’s summary judgment motion dismissing the complaint on the grounds that the crack or groove is too trivial to be actionable as well as on the grounds that the alleged defect was open and obvious.

The Fourth Department affirmed as defendant failed to address that portion of plaintiff’s testimony wherein she claimed she slipped on loose pieces of spalled concrete. The Court also rejected defendant’s open and obvious argument because “[t]he fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition, but rather, bears only on the injured person’s comparative fault”.


06/21/18          Cannon v 111 Fulton St. Condominium, Inc.

Appellate Division, Second Department

“On or before” a specified date is not the same as a definite time, date, or place

Plaintiff allegedly tripped and fell on the sidewalk in front of defendants’ building. The trial court previously ordered plaintiff’s deposition and discovery responses on three separate occasions, at which point the parties then entered in a stipulation requiring plaintiff’s appearance at a deposition on a specified date. The trial court granted defendants’ motion to preclude plaintiff from offering evidence at trial after plaintiff failed to appear on that specified date, and thereafter granted defendants’ summary judgment motion seeking dismissal of the complaint.

The Second Department reversed, finding the specified date in the stipulation only said that plaintiff’s deposition was to be held “on or before” March 16, 2015, “at a time and location to be agreed upon” and therefore, the stipulation did not set a time, date, or place for the deposition. As a result, the Court held that since defendants failed to demonstrate that plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct.


06/21/18          Davis v Pathmark

Appellate Division, First Department

Spoliation causing plaintiff to be unable to establish her claim justifies striking defendant’s answer

The trial court granted plaintiff’s motion to strike defendants’ answer pursuant to CPLR § 3126 and thereafter granted plaintiff’s summary judgment motion on liability. The First Department unanimously affirmed as the video recording of defendants’ store that depicted the area of plaintiff’s fall prior to it occurring was demanded within days of plaintiff’s slip and fall but was not preserved because a store employee selectively edited the video to retain only that portion showing approximately thirty seconds prior to the fall. The Court found that without the video, plaintiff may be unable to establish the origin of the liquid on the floor she alleges caused her to fall, and thus be unable to establish notice of the alleged condition.


06/21/18          Washington v Trustees of The M.E. Church of Livingston Manor

Appellate Division, Third Department

Plaintiff raised an issue of fact to defeat defendant’s summary judgment motion as to whether the icy condition that caused her fall existed prior to the storm in progress and whether defendant had constructive notice of the icy condition

Plaintiff, after attending church on defendant’s property, allegedly slipped on ice in the parking lot during a storm in progress. Plaintiff noticed that the parking lot was icy when she was on the property for church a week earlier, and on the day of her incident she saw ice that appeared thicker than it had a week prior, “as though it had not been treated with salt or sand”. The trial court denied defendant’s summary judgment motion on the grounds that it had no duty to remedy the icy condition during an ongoing storm.

The Third Department affirmed as plaintiff sufficiently raised a triable issue of fact as to whether the ice that allegedly caused plaintiff’s slip and fall existed prior to the storm in progress and that defendant had constructive notice of the hazard. Plaintiff’s expert affidavit concluded that four inches of snow and ice existed on untreated surfaces at the time of her incident, including preexisting snow and ice from two or more days before the incident.


07/05/18          Matuszewski v City of New York

Appellate Division, Second Department

Plaintiff’s complaint dismissed where he could not show that he substantially complied with a conditional order of preclusion

Plaintiff allegedly slipped or tripped on construction materials and fell into an uncovered hole on defendant’s property. The trial court previously issued orders and conducted a pretrial conference directing plaintiff to provide the requested discovery, and the trial court then conditionally granted defendant’s motion to strike the complaint unless all outstanding discovery was produced within forty-five days. When plaintiff failed to comply, the trial court issued a final order of preclusion which directed dismissal of plaintiff’s complaint. The trial court then denied plaintiff’s motion to vacate or for alternative relief seeking to modify the final order of preclusion.

The Second Department affirmed by rejecting plaintiff’s contention that he substantially complied with the conditional order of preclusion, which the Court held was contradicted by the record as plaintiff failed to provide a supplemental bill of particulars and several requested medical authorizations.


07/11/18          Burke v Umbaca

Appellate Division, Second Department

Property owner entitled to summary judgment when plaintiff cannot identify the cause of her fall

Plaintiff allegedly was injured when she fell down the front steps of defendant’s home. The trial court granted defendant’s summary judgment motion dismissing the complaint on the grounds that it did not have notice of any dangerous or defective conditions regarding the front steps prior to this incident, including that the steps lacked adequate lighting.

The Second Department affirmed dismissal of plaintiff’s complaint as her deposition testimony demonstrated that she was unable to identify the cause of her fall, and she failed to raise a triable issue of fact as to whether inadequate lighting or a lack of handrails were a proximate cause of her accident.


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]


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