Premises Pointers - Volume II, No. 3

Premises Pointers
Watch your step!


Volume II, No. 3

Wednesday, August 15, 2018

A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

If you know of others who may wish to subscribe to this free publication, or change your subscription status, please contact Jody E. Briandi at [email protected] or call 716-849-8900. All issues of Premises Pointers are listed on the firm website at

Jody E. Briandi
[email protected]


Todd C. Bushway

[email protected]


V. Christopher Potenza

[email protected]


Anastasia M. McCarthy
[email protected]


James L. Maswick
[email protected]


Marc A. Schulz
[email protected]




Retail, Restaurant and Hospitality Industry

Slip and Fall Accidents

Snow/Ice Claims and Storm in Progress

Inadequate/Negligent Security

Inadequate Maintenance

Negligent Repair

Defective and Dangerous Conditions

Elevator and Escalator Accidents

Swimming Pool and Recreational Accidents

Dog Bites/Animal Liability

Negligent Supervision

Assumption of Risk

Limited Services Contracts

Indemnification Agreements

Tavern Owner Liability and Dram Shop

Homeowner Liability

Toxic Exposures

Municipal Liability




Greetings all.  Hard to believe its August – here’s hoping that everyone is able to squeeze some fun out of the remaining couple of weeks of the summer.

Jody, with Anastasia handling second chair, is on trial this week, leaving me to pen the opening note.  We are giving them  a pass on their columns this month, although I did include a couple of cases under their respective headings.

Long gone are the days when the summer months meant a gentle hush fell over the court house, at least for those parts primarily handing civil litigation.  Jody’s trial will be the third verdict our Buffalo litigation team has taken in the last 6 weeks or so.  Mike Perley obtained a no cause in favor of a local county on a sidewalk/snow & ice trip and fall case and I was able to successfully convince a jury that my client was not the cause plaintiff’s injuries as the result of a multi-car, chain reaction accident.  Today also marks day 8 in a trial that Ed Flink from our Albany office is handling in Malone, New York.  There are also several cases on the calendar in the next month as well.

We took the time recently to look at the topics we typically cover in Premises Pointers across the newsletter as a whole, as well as what topics each columnist follows.   We have made some adjustments and those changes are reflected in the titles above each column.   A couple of the changes are Marc taking the lead role of cases arising from recreational pursuits (primary assumption of risk, New York’s recreational use statute, releases, etc.) and Anastasia will follow cases addressing contractors and vendors and limited services contracts.  I suspect there will be a noticeable uptick in useful information on those topics.  If there is something anyone would like us to cover (or thinks there is something we should cover, just let us know.

Jody and Anastasia are representing a school district in a negligent supervision case. Plaintiff was a high school student who, while in a science lab, was splashed in the face and mouth with a chemical when another student picked up a bottle from the lab bench and sprayed the liquid in plaintiff’s direction.  The chemical in question was commonly used in the high school labs and was not subject to any restrictive use or handling regulations.  The student who splashed the chemical has acknowledged he knew what he was doing was against the policies and rules put in place by the teacher and had no record of any disciplinary or other conduct issues at the school.  There was no history of any dispute or conflict between the two students.  Plaintiff’s primary claimed injury is a partial loss of taste, allegedly caused by the chemical coming into contact with his tongue.  Fun stuff.

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 Jody 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].  We look forward to hearing from you!



Retail, Restaurant and Hospitality Happenings

Around New York State and Beyond

By: Jody E. Briandi [email protected]


July 24, 2018 – Henry v. Target Corporation

United States District Court for the Southern District of New York

Plaintiff’s inability to show the store had notice of a hazard and/or that the store created the condition that led to the customer’s slip and fall was fatal to her claims against the store.

Plaintiff was shopping at a Target store when she slipped and fell near the ice cream section in an aisle located within the refrigerated section of the store.  She did not see what she had slipped on but noticed her feet were wet and there was a line of water on the floor that extended into an adjacent aisle.  In that adjacent aisle, which contained frozen vegetables, plaintiff observed a mobile rack containing unopened cardboard boxes.  Water was dripping from the rack.  A Target employee working at the time of the accident filled out witness statement and later testified that she saw an employee of an ice cream supplier in the aisle where plaintiff fell, unpacking ice cream from a mobile rack.

In her suit against both the store and the ice cream supplier, plaintiff claimed that the water which caused her fall emanated from the mobile rack used by the ice cream vendor’s employee and that Target had actual or constructive notice of the alleged hazard.  Because the plaintiff could not show that Target either created the condition or had actual or constructive knowledge of the water in the aisle, the court granted Target summary judgment.  The plaintiff’s claim against the ice cream supplier continued unabated.

Addressing first the question of who “created” the hazard, the court noted that it was undisputed that shortly before the incident, the ice cream cart was in the aisle where plaintiff fell and the store manager and employee witness identified the ice cream cart as the source of the water.  On those facts, the court held that Target had not created the hazard.  In making that determination, the court noted that the fact that cart was owned by Target, who allowed the vendor to use it, did not create liability for Target and that plaintiff had failed to show that Target could be held liable for the negligent acts of the vendor’s employee,

The court then turned to the question of whether Target had notice of the wet floor, addressing actual notice first.  Because plaintiff had not identified either any Target employees who was aware of the water before she fell or other customers who had complained about the problem before she fell and had not offered any circumstantial proof that Target knew about the leaking cart, the court held plaintiff had not established Target had actual notice of the condition.

Plaintiff argued the store manager’s investigative report established Target had constructive notice of the condition,  That report stated that the water resulted from “condensation,” a condition which plaintiff argued could have only occurred over time, a length of time sufficient for the store to have both become aware of the problem and remedied it.  The court rejected this argument, holding that claim was inconsistent with her own testimony, which described a 4”-6” wide track of water running directly from the area where she fell to the cart, now parked in the adjacent aisle.  The court noted that this description meant “that the mobile rack leaked as it was moved —not that water slowly pooled as the rack sat stationary.”  There was also proof, undisputed by plaintiff, that the aisle had been inspected by a Target employee within the hour before plaintiff fell.


July 18, 2018 – Matadin v. Bank of America Corporation

Appellate Division, Second Department

Plaintiff’s inability to identify the cause of her fall was not fatal because she raised a question of fact in response to plaintiff’s motion by submitting proof regarding snowfall on the morning of her fall. 

On a fine January morning, plaintiff slipped and fell inside the entranceway of one of defendant’s branches in Manhattan.  She subsequently sued the bank, which moved for summary judgment on the ground that because plaintiff could not identify what had caused her fall and because the flooring in the entranceway was appropriate and did not constitute a dangerous condition.

The court stated the bank met its prima facie burden as matter of law on the motion by showing that plaintiff could not identify the cause of her fall.  The question was then whether plaintiff could raise a question of fact.  Plaintiff had testified that it had been snowing on the morning she fell, and that upon standing up after she fell, the back of her coat was wet.  This led her to believe that she had slipped on snow (or melted water from snow) that had been tracked into the building.  In addition to this testimony, plaintiff also submitted reports from the National Oceanic and Atmospheric Administration (NOAA) documenting snow fall the morning of the incident.

The court found plaintiff had raised an issue of fact and denied the motion.

At the end of the decision, the court added a statement about the bank’s claim that it did not have constructive notice of the hazard – the trial court had actually granted the bank summary judgment on the lack of notice.  The Second Department overturned that finding, noting that the bank had not moved for summary judgment on that ground and had not submitted sufficient evidence to eliminate a question of fact on the question of constructive notice.



Negligent Supervision, Municipal Claims and School Liability

By: Todd C. Bushway [email protected]


Long gone are the days when the summer months meant a gentle hush fell over the court house, at least for those parts primarily handing civil litigation.  Jody’s trial will be the third verdict our Buffalo litigation team has taken in the last 6 weeks or so.  Mike Perley obtained a no cause in favor of a local county on a sidewalk/snow & ice trip and fall case and I was able to successfully convince a jury that my client was not the cause plaintiff’s injuries as the result of a multi-car, chain reaction accident.  Today also marks day 8 in a trial that Ed Flink from our Albany office is handling in Malone, New York.

Next week brings a huge milestone to my home - we will deposit my oldest in a space challenged, cinder block door room at Villanova to start her freshman year. Cecelia is equal parts excited, terrified, anxious and eager to get going.  My wife and I are probably in the same place.  The next 2 weeks will be an interesting ride.  I am sure it’s just to bring levity to the situation, but our 16 year old son has made it clear he views his sister’s departure as the removal of a major barrier to his happiness and wellbeing.  The dog mostly appears confused.  I did point out to the kids that Cecelia’s departure will answer the pressing question any parents with more than one kid faces on a regular basis – who is responsible for any number of messes left around the house.  When called to explain, the typical kid either (1) denies outright any involvement or (2) throws a sibling under the proverbial bus. Since we have two kids, removing one from the home will be very revealing.

Musically, take a listen to Memphis based rockers Lucero’s new record Among the Ghosts.  Lucero is now 20 years in and know what they are doing. If you like blue collar bar rock with a little twang a bit of punk attitude, a fondness for whiskey, late nights and the road, literate storytelling lyrics, with a touch of Memphis soul stirred in, this is a band for you.  These guys have some serious grit and aren’t singing to the country club crowd.  They have a much rougher sound than the Boss or even the Drive By Truckers, but they are certainly living in the same blue collar lyrical landscape.  The band has a couple of live records if you want to get a better feel for the sound – I’d recommend 2014’s Live from Atlanta.  Here’s hoping for some good tour routing.

The cases I am highlighting this month include a trio of cases (French, Liverpool and Manzella) dealing with prior written notice statutes, a case (Miller) addressing a town’s responsibility for traffic control signs or lights at the intersection of a county and town road and a couple of school liability cases – one dealing with supervision and care and custody of a student (Feng) and the other with the application of standards to a playground (Boland).

Please feel free to contact me about any of these cases, other questions you might have or simply to tell me about a band or musician I ought to be listening to.  [email protected]



July 18, 2018 – French v. Long Island Children’s Museum

Appellate Division, Second Department

Prior Written Notice – Because it was acting in a proprietary capacity in leasing property to the co-defendant museum, the County’s prior written notice statute did not bar a claim against the County arising from a slip and fall on a sidewalk at the location.

Plaintiff claimed that she tripped and fell because of a raised portion of the sidewalk in front of the Long Island Children’s Museum.  The museum leased the property, which included the sidewalk, from Nassau County.  As a result of the fall, plaintiff sued both Nassau County and the museum.

One of the county’s defenses was that it had not received prior written notice as required by the county’s code.  There does not appear to be any question that the county did not receive the required prior written notice.  That did not carry the day.  Simply being a municipal entity was not enough to afford the county the benefit of the prior written notice requirement – the determining factor was the nature of the county’s role as owner of the property where the incident occurred.   Settled case law holds that when a municipality acts in a proprietary manner as a landowner, it bears the same duty to maintain the property as a private landowner would.  Leasing the property was a proprietary function, making prior written notice a moot issue.


July 18, 2018 – Liverpool v. City of New York

Appellate Division, Second Department

Prior Written Notice – Prior written notice was required where the city had not created the  allegedly dangerous condition, which resulted from ‘environmental effects” upon the roadway.

Plaintiff was injured when a “protruding area of the roadway” caused his motor cycle to become airborne and crash.  Not surprisingly, plaintiff claimed that the “protruding area of the roadway” constituted a hazardous condition for which the City of New York must pay.

The City’s Administrative code contained a prior written notice requirement, which both applied to the roadway where the accident occurred and which had not been met.  In response to the City’s motion to dismiss, the plaintiff argued that the City had affirmatively created the condition, one of two exceptions to a prior written notice requirement (the other exception is where a special use resulted in a special benefit to the municipal entity).  The appellate decision is silent to how plaintiff claimed the City affirmatively created the condition – the creation exception is limited to situations where the municipality’s work immediately results in the alleged hazard.

In this case, the court granted the City’s motion, holding that plaintiff’s proof in response to the City’s motion had “at most” showed that “environmental effects over time” created the protrusion in the roadway.



July 18, 2018 – Manzella v. County of Suffolk

Appellate Division, Second Department

Prior Written Notice – the Court found a question of fact on the question of whether the County created the allegedly dangerous condition.

Plaintiff claimed that the county had negligently plowed and piled snow along a county roadway, thereby creating a dangerous condition (i.e. obstructed views) at the intersection where the underlying motor vehicle accident occurred.   The county’s code included a prior written notice requirement that included snow and ice conditions on a county roadway and there does not seem to have been any question that the prior written notice rule applied to the snow banks or piles alongside the road.

The county moved for summary judgment, establishing that it had not received the required prior written notice of the allegedly dangerous condition – i.e.  the piles of snow along the roadway.  

The Court rejected the defense motion.  Noting plaintiff alleged that the county had “caused or contributed to the dangerous condition, the county, in making its motion for summary judgment,  was obligated to make a prima facie showing that both it had not received prior written notice of the allegedly dangerous condition and that it had not create the condition.

The court found the county established a prima facie case on both the prior written notice requirement and that it had not created the dangerous condition.  The court then found a question of fact on the creation question.    Unfortunately, the decision is silent as to what proof the county put forth to meet its burden on the creation allegation, and what the plaintiff provided to raise the question of fact.

The practice points to take from the Liverpool and Manzella cases is to make sure the analysis does not stop with the determination that a prior written notice statute applies.  Establishing a lack of prior written notice is fairly straightforward in the majority of cases – the requisite person at the municipality identifies their position and role and that they have checked the records and found no written notice of the condition.   Responding to the “created” claim in each case will be fact specific, since each hazard will be relatively unique.  Addressing who was legally responsible for an area or location, how that obligation was handled in practice, what policies or protocols might have applied and what records may exist will all go towards refuting or sustaining an allegation the municipal entity played a role in creating or causing the condition. 



July 25, 2018 – Miller v. County of Suffolk, et al.

Appellate Division, Second Department

Town not responsible for the signage at the intersection of a County and Town road.

Plaintiff was injured at the intersection of a town road with a county road.  In her suit, the alleged that the presence of a rail bridge near the intersection of a town road with a county road created a situation where vehicles on the county road, who faced no traffic control at the intersection, could not see traffic stopped at the town road, and conversely, traffic on the town road could not see oncoming vehicles on the county road.  Plaintiff had stopped at the stop sign on the town road.  The collision occurred as she slowly crept into the intersection to gain a better view of traffic.  She claimed that a sign or light for traffic on the county road requiring traffic to stop at the intersection would have eliminated the risk.

Case law is clear that a municipality cannot be held liable for the design, construction, maintenance and/signage and traffic control of a road way it does not own.  In this case, the allegation centers on signage and traffic control at the intersection, as well as the design and layout of the roadways and the impact on visibility on the roads.  The town successfully moved for summary judgment on the basis that it did not own, design or maintain the county road, it did not have any control or jurisdiction over the signage or traffic control at the intersection and that it had not taken control of or otherwise assumed a duty at the intersection.

In making its motion, the town established that its maintenance and control was limited to its roadway only (the county owned, designed and maintained the through road) and the county had full control of the signage and traffic control at the intersection.  In fact, the town had no legal jurisdiction over the signage or traffic control at the location.  New York law is clear – at the intersection of county and town roads, the county has the sole authority to determine and install signage or traffic control at the intersection, including on the intersecting town road(s), and that the town has no authority to place signs unless directed to do so by the county.

The key here is control.  Signage and traffic control at an intersection of roads owned or under the control of different municipal entities is often the easiest part of the analysis – generally, one of the municipalities is wholly responsible for signage and/or traffic control on all sides of the intersection.  Cases become much less clear when the allegation (or proof) is that the municipality not in control undertook or assumed some action at the location (e.g. clearing brush, working on roadway shoulders or adjacent ditches) – the question then becomes whether those actions shifted a duty to that municipality that it might not otherwise have faced.


July 25, 2018 – Deng v. Young, et al.

Appellate Division, Fourth Department

School district’s obligation to care for and supervise student can continue after the student leaves the school’s control if the school district, without further supervision, releases the student into a foreseeably dangerous situation or setting.

The infant plaintiff, then 8 years old, suffered a head injury when he was struck by a car as he walked home from school.  Under normal circumstances, the school district provided bus transportation for the plaintiff, taking him from school to his home at the conclusion of the school day.  The decision does not state why, but on the day of his injury, plaintiff missed the afternoon bus.  According to the student, he then approached a school employee, who offered no assistance other than telling him to walk home.  The student also testified that no one responded when he rang the buzzer at the door, which is what he said the students were instructed to do if they were locked outside.  Plaintiff then left to walk home and was struck on that journey.  The decision also notes that allowing the student to walk home violated the district’s own policies and that the student did not have parental permission to walk home.

The district moved for summary judgment, arguing that its obligation to supervise and care for the infant plaintiff applied only when the student was in its custody and once the student left the school property, any duty to the student was extinguished.   Case law addressing a school’s duty of care to its students is based upon a general rule that custody and control of the student is required and once the student leaves the school’s property or control, the duty is extinguished.  There is a caveat to this – a school cannot place or leave the student into a setting with a foreseeable risk of harm or danger, especially if the school played a role in creating the alleged hazard or danger.  The distance between the district’s physical property and the incident location is not a determinative factor, meaning that the district’s duty does not end when he student leaves school property.

The school district, moved for summary judgment, arguing that the accident occurred off school property and when the student was not under its care or control.  The court rejected this argument and found a question of fact as to whether the school district had improperly released the student into a “foreseeably hazardous setting” that it had a part in creating. The question here seems obvious – did telling an 8 year old to walk home place the child in a foreseeably dangerous situation?  While the district did not have any role in the actual accident, the question whether the situation the student found himself in was something the district played a role in creating.

The court made two notes.  The first was that the credibility of the student’s testimony was for the jury (remember, the kid was 8).  The second had to do with the student’s permission to walk to and from school.  The court specifically noted that this case “should not be construed to apply” to those situations where the student had parental permission to, or walked to or from school as part of “his or her normal routine.”


August 8, 2018Boland v. North Bellmore Union Free School District

Appellate Division, Second Department

Plaintiff’s expert’s opinion, citing to non-mandatory guidelines, was not sufficient to raise a question of fact in opposition to a school district’s motion for summary judgment on a failure to maintain claim.

The plaintiff was injured when she fell, during a school recess period, from a piece of school owned playground equipment.  The student’s parents sued the district, claiming it was liable because it did not provide adequate supervision and because it had negligently installed and maintained the surface material located beneath the playground equipment, thereby creating a dangerous condition the caused or contributed to plaintiff’s injuries.

Following discovery, the district moved for summary judgment on both claims.  The trial court ruled in favor of the district on the supervision claim and against the district on the claim based upon the materials installed beneath the playground equipment.  The district then appealed.

On appeal, the Appellate Division, Second Department affirmed the lower court’s ruling on the negligent supervision claim.  Unfortunately, the decision does not provide any detail regarding what proof the parties submitted on that claim.

The Second Department reversed the lower court and dismissed the plaintiff’s claim the district had negligently installed and maintained the playground surface.  Without providing any detail, the court held that the district had met its burden to establish that it was not negligent.  Plaintiff’s response to the district’s motion included an expert affidavit, in which the expert opined that the district was negligent and had created a dangerous condition because the playground surface allegedly violated standards promulgated by the American Society of Testing Materials (ASTM) and the Consumer Products Safety Commission (CPSC).  In reversing the lower court’s ruling, the Second Department held that the plaintiff’s expert’s opinion was not sufficient to raise a question of fact because the cited ASTM and CPSC standards were non-mandatory guidelines only.

The practice point to take away from this is to make sure you and your client understand the standards being discussed and how they may apply.  The ASTM is one of the largest standards and testing organizations in the world and its standards are routinely adopted or incorporated into regulations and statutes, while the CPSC is a federal government agency “charged with protecting the public from unreasonable risks of injury or death associated with the use of the thousands of types of consumer products under the agency's jurisdiction.”  Hardly obscure or fringe sources of standards. It’s hard to tell from this case because of the limited discussion of the facts and about the specific standards referred to by the expert (or how the expert claimed they applied), but the non-mandatory element may not be the end of the day – how the expert explains the standards, how they are used in the particular industry and what the defendant knew about the standards can all play a role.  The thing to remember is that a lot of those questions need to be explored well before the motion is filed – either with your own client as you work to understand what happened, with your own expert as you work through discovery and at depositions. 



Toxic Exposures

By: V. Christopher Potenza [email protected]


As I return to the office from a much needed and much enjoyed week along the Canadian shores of Lake Erie with my family, I am quite relieved that the appellate courts issued no decisions in the areas of asbestos, lead paint, or other toxic exposures last month.  It would have been nice to get that one extra day of vacation if only our powers that be followed the lead of our neighbors to the north and designated the first Monday of August “Civic Holiday.”  It’s a day of no particular historic significance, just an excuse to give everyone an extra day off in the middle of summer (although some municipalities add a local flavor to the holiday as it is known as “Heritage Day” in Alberta, “Simcoe Day” in Toronto, and “Terry Fox Day” in Manitoba”).

With no decisions of interest this month, I will fill this column with a discussion on the Federal Hazardous Substance Act (“FHSA”), 15 USC § 1261 et seq., which regulates the labeling on hazardous household products and pre-empts common-law failure to warn claims concerning these products.  We recently utilized this defense to successfully (and nominally) resolve a nasty chemical burn claim in the infancy of litigation.

And now for this month’s dad joke:

Why did the snowman not enjoy Civic Holiday?

He was a puddle.

The Federal Hazardous Substance Act, (“FHSA”), 15 USC § 1261 et seq., is a useful tool in defending product liability claims involving toxic household substances.  For the FHSA to apply, a product must first be toxic, corrosive, flammable or combustible, an irritant, or a strong sensitizer, or it must generate pressure through decomposition, heat, or other means. 15 USC § 1261(f). Second, the product must have the potential to cause substantial personal injury or substantial illness during or as a result of any customary or reasonably foreseeable handling or use. Regulated household products include the likes of paint thinner, drain openers, oven cleaner and even ready-mix concrete.  

The FHSA preempts claims based upon a theory that defendant's labeling and packaging should have included additional, different or alternatively stated warnings from those required under FHSA. The Act expressly prohibits the establishment of state standards different from those required under federal law.   

To comply with the FHSA, the product is required to have the following information in English.

(1) The name and place of business of the manufacturer, packer, distributor, or seller;

(2) The common or usual or chemical name of each hazardous ingredient;

(3) The signal word “Danger” for products that are corrosive, extremely flammable, or highly toxic;

(4) The signal word “Caution” or “Warning” for all other hazardous products;

(5) An affirmative statement of the principal hazard or hazards that the product presents, for example, “Flammable”, “Harmful if Swallowed”, “Causes Burns”, “Vapor Harmful”, etc.;

(6) Precautionary statements telling users what they must do or what actions they must avoid to protect themselves;

(7) Where it is appropriate, instructions for first aid treatment to perform in the event that the product injures someone;

(8) The word “Poison” for a product that is highly toxic as defined by the Act, in addition to the signal word “Danger”;

(9) If a product requires special care in handling or storage, instructions for consumers to follow to protect themselves; and

(10) The statement “Keep out of the reach of children”. If a hazardous product such as a plant does not have a package, it still must have a hang tag that contains the required precautionary information. That information must also be printed in any literature that accompanies the product and that contains instructions for use.

The Act further proscribes the size of the warning in relation to the product labeling.

When confronted with a warnings claim on this type of product, the first step is to assess whether the warning adheres to the requirements of the FHSA, and then move for preemption as appropriate.



Snow and Ice, Storm in Progress, Tavern Owner and

Dramshop Liability and Limited Services Contracts

By: Anastasia M. McCarthy, [email protected]


July 18, 2018Giordano v. Heather A. Zepp, et al.

Appellate Division, Second Department

Summary judgment granted in dram shop claim against winery where plaintiff could not create a question of fact where winery established it had not served the visibly intoxicated co-defendant.

Plaintiff claimed she was assaulted at her hotel by an intoxicated woman who had been a patron of Three Brothers Winery.  The assault occurred after a wine tasting tour of several wineries, including Three Brothers.  Both plaintiff and the intoxicated assailant had been on the tour, although the decision is silent if there was any prior relationship between the two.  Plaintiff claimed Three Brothers violated New York’s Dram Shop Act (New York General Obligations Law §      11-101) by serving the visibly intoxicated attacker.

Following discovery, the winery moved for summary judgment.  To meet its burden of establishing that either it had not served alcohol to the co-defendant while she was visibly intoxicated (an illegal sale under the act) or that there was no “reasonable or practical” connection between any service to the co-defendant and the alleged injury.  In support of the motion, the winery submitted affidavits from its owner and four employees, all of whom averred that they had been working on the day of the tour and subsequent altercation and did not recall either seeing or being informed of a visibly intoxicated patron.  The court held this fulfilled the winery’s burden of proof and found plaintiff had not raised a question of fact in response.

The decision does not provide any detail about what the plaintiff offered in opposition to the winery’s motion and the case is not an e-file matter, meaning we cannot take a look at the motion papers themselves.  I suspect the court was looking for either eye witness proof of the co-defendant in the bar and her condition, or expert toxicology evidence addressing consumption and intoxication.  The decision is also silent as to what the assailant had to say about the fateful day’s events.


July 19, 2018 – Williams v. New York City Housing Authority

Appellate Division, First Department

Storm in progress defense not applicable where weather records showed precipitation had stopped several hours before the alleged fall; summary judgment granted to defendant when plaintiff could not prove defendant created the allegedly hazardous condition or that the defendant had actual or constructive notice of the alleged hazard.

Plaintiff fell on a sidewalk in front of one of the defendant’s buildings in the Bronx.  She claimed ice on the sidewalk, untreated by the defendant, caused her fall.  Plaintiff testified that the sidewalk had been clear the day prior and that she only observed ice on the sidewalk after she fell.  Following discovery, the defendant moved for summary judgment on several grounds –that there was a storm in progress at the time plaintiff fell, thereby eliminating any duty to clear the sidewalk, there was no proof it had created the condition and there was no proof that it had actual or constructive notice of ice on the sidewalk.

On the issue of notice, the defendant’s assistant superintendent testified that she was had overseen snow removal on the date of the incident and that the sidewalk was salted and sanded three times during her shift, she inspected the area one hour before plaintiff fell and had received no complaints about ice on the sidewalk.

On the defense motion, the court granted the defendant summary judgment, finding the defendant met its initial burden of establishing it had not created the condition, which was not rebutted by plaintiff and that plaintiff submitted no evidence that the defendant had actual or constructive notice of the condition.  The court noted plaintiff’s deposition testimony where she said she only saw the icy condition after she had fallen and was unable to provide any description “dimensions, shape or thickness” of the ice.

Plaintiff’s expert was of no help.  In his affidavit, plaintiff’s expert averred that weather records showed there would have been no ice on the sidewalk in the several days before plaintiff fell in fact, those weather records showed that the temperature in the area had not risen above freezing for days before plaintiff fell, and had only reached 34 °F an hour before the fall. The court also found that the expert was “merely” speculating when he stated that the ice had formed as a result of thawing and refreezing of snow piles that had accumulated along a nearby fence during a storm the previous week.

Although finding in the defendant’s favor on the creation and notice issues, the court rejected the defendant’s storm in progress defense, pointing to the weather records that showed trace amounts of freezing rain had stopped several hours before plaintiff fell and to a statement in the weather records that the precipitation had “tailed off to such an extent” that there “was no longer any appreciable accumulation.”


The Ups and Downs of Elevator and General Litigation

By: James L. Maswick [email protected]


My wife Caitlin and I had thought we were out of the age group where we attended lots of weddings, but not so fast! We have three weddings to attend over the next month-and-a-half. Now, can we figure out how to navigate those with a baby!? As always, any questions or comments about the cases that we review, or you just want to say hello, please do not hesitate to email me at [email protected].


August 1, 2018 -  Hussey v. Hilton Worldwide Incorporated

Appellate Division, Second Department

Second Department affirms trial court’s decision made twice on alleged freight elevator door injury case.

Plaintiff claimed to have been injured when a freight elevator door closed on her at the New York Hilton Midtown Hotel. She brought an action against both Otis Elevator Company, the elevator maintenance repair company which had a contract to maintain the elevators at the hotel, and Hilton Worldwide Incorporated, the property owner. Both defendants moved for summary judgment. The Supreme Court granted the defendants’ separate motions. Plaintiff then moved for leave to renew and reargue opposition to the defendants’ motions, and the Supreme Court allowed renewal and reargument and then, again, adhered to its original determination. The plaintiff then appealed.

The Court found that Hilton had no actual constructive notice and did not fail to notify the elevator company of a known defect. It also found that Otis Elevator Company did not have any failure to correct conditions of which it knew or should have known. The defendants submitted in support of their motions a video recording of the incident, deposition testimony of a security officer employed by Hilton and an elevator mechanic employed by Otis. Notably, the evidence in the record demonstrated that the elevator door was programmed to close after a delay of approximately 20 seconds. After the plaintiff entered the elevator and pressed the button twice for the sub-basement, the elevator door remained open for approximately 20 seconds, and the plaintiff began to exit the elevator at the exact moment that the door began to close. The Court said after it struck the plaintiff, the door immediately retracted upon detecting an obstruction. The Court indicated that plaintiff’s expert’s affidavit was conclusory, lacking in foundation and speculative in failing to raise an issue of fact.

Practice tip: It sounds like there was a surveillance video of the plaintiff getting lightly hit by the elevator door as it closed.  If you are on notice of a potential claim early, always ask your clients or insureds to maintain that video, as many of the surveillance video systems normal operating procedure only preserves video for 30 days, sometimes less.

Practice tip 2: In general, and with no comment on the Decision in this specific case, use motions to renew and reargue sparingly.  One needs to know their Judge and whether s/he will be willing to admit if s/he made a mistake or “misapprended the law” initially.  If the Judge is not, skip that motion and go straight to the Appellate Division.  I would respectfully argue that a trial court ruling against a litigant twice only enhances the chances that the Appellate Division will affirm the trial court’s earlier Decision.


July 19, 2018 -  Faville v. County of Albany

Appellate Division, Third Department

Plaintiff’s claims of injuries at the Pepsi Arena dismissed on summary judgment based on lack of notice and res ipsa not being applicable.

Plaintiff claimed she suffered injuries when the escalator she was on at the Pepsi Arena allegedly sped up, causing her to violently fall backwards. Defendant had the burden of showing it did not have actual or constructive notice, nor did it create the dangerous condition that resulted in plaintiff’s injury on its motion for summary judgment. The defendant County of Albany, the owner of the Pepsi Arena, proffered the testimony of the Director of Operations for the Arena, Douglas McClaine. McClaine testified that the escalators were regularly maintained and routinely repaired and that there were no prior complaints about the steps or handrails moving at different speeds. Invoices and service orders corroborated McClaine’s testimony.

Plaintiff’s attempts to raise an issue of fact based on the argument that the escalator had an extensive history of overall maintenance and repairs were rejected by the Court. The Court noted that none of the maintenance and repair records indicated the escalator had issues with speeding up, which was the complaint plaintiff had made. The Supreme Court termed it, “at best, a ‘general awareness’ by defendant of certain problems with the escalators, but nothing specific enough to raise an issue of fact regarding actual or constructive notice.”

Plaintiff also failed to present proof that the defendant was in exclusive control of the escalator or that it was the kind of incident which does not ordinarily occur in the absence of negligence for purposes of considering res ipsa loquitor.

As a guy hailing from the Capital Region, I was struck to see a case decided in 2018 mention the “Pepsi Arena.” At this point, it has been known as the Times Union Center since January 1, 2007 (and the Knickerbocker Arena before that). This injury apparently occurred in 2002. It is unclear why the case took 16 years to reach the Appellate Division.

Practice tip: It is not enough to simply have general maintenance issues with an escalator for a Court to find that a defendant property owner or repair company has notice of the specific defect which allegedly injures the plaintiff. The prior complaints must be similar in nature to the complaints of the plaintiff for notice to be found.



Homeowner Liability, Recreational and Sporting

Activities and Discovery and Evidence Issues

By: Marc A. Schulz [email protected]



Greeting Subscribers!

As basketball season is over but (fantasy) football season is not yet here, my attention is on the New York Yankees. This year, my dad and I are planning a trip down to the Bronx to catch the tail end of the Red Sox series and spend the weekend enjoying the big city. In terms of cases this slow month, I report on two cases where the courts granted the property owner summary judgment, and one that was denied where the owner failed to address all of alleged negligent ways in which the plaintiff claimed contributed to his falling down stairs.

Good luck to all you fantasy drafters out there, and feel free to call or email me with your rankings or draft strategies. Until next issue, enjoy what’s left of the summer…



07/25/18          Pagan  v Jordan

Appellate Division, Second Department

Summary judgment granted to property owner who demonstrated she did not know or have reason to know by way of a reasonable inspection of the tree which fell and struck plaintiff

Plaintiff allegedly was injured on defendant’s property when a tree fell and struck him. The trial court denied defendant’s motion for summary judgment dismissing plaintiff’s complaint. The Second Department reversed, finding defendant established she lacked actual or constructive notice of the allegedly dangerous condition of the tree, and plaintiff failed to raise a triable issue of fact in opposition.


 06/08/18         Quinones v Street City, Inc.

Appellate Division, Second Department

Summary judgment denied for defendants’ failure to demonstrate when the specific area where plaintiff fell was last cleaned or inspected before the incident.

Plaintiff allegedly slipped on a puddle pee while walking down an interior staircase of his apartment building, and holding onto the handrail that was partially detached from the wall. The trial court granted defendants’ motion for summary judgment dismissing the complaint on the grounds that they did not create or have notice of the condition that allegedly caused plaintiff’s incident, the handrail was not disconnected, and regardless plaintiff’s description of his incident at his deposition did not involve the handrail as a cause of his incident.

The Second Department reversed, finding defendants failed to offer evidence as to when that specific area where plaintiff fell was last cleaned or inspected before the incident, and failed to prove the handrail was not defective. As a result, the trial court should have denied defendants’ motion without regard to the sufficiency of plaintiff’s opposition papers.


08/08/18          Fuentes v Theodore

Appellate Division, Second Department

Summary judgment granted to property owner who proved stepladder was not dangerous or defective and was stable when plaintiff fell

Plaintiff fell on defendant’s property while trying to descend a stepladder. The trial court denied defendant’s motion for summary judgment dismissing the complaint. The Second Department reversed, finding defendant’s evidence showed no dangerous or defective condition existed regarding the stepladder, and plaintiff only submitted the affidavit of her expert who inspected the stepladder four years after the incident.

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