Premises Pointers - Volume II, No. 4


Premises Pointers
Watch your step!

Volume II, No. 4
Monday, September 17, 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


NOTE FROM THE EDITOR: Happy September!  Since our last issue, we’ve done some tweaking with our format and gave Premises Pointers an updated look.  Hope you like it and find it more user-friendly.  Comments are always welcome!
As mentioned by Todd (see August’s “note from an associate editor”), Anastasia and I were on trial last month representing a school district in a negligent supervision case.  Plaintiff was a high school student who, while in a biology science lab, was splashed in the face and mouth with a chemical when another student picked up the chemical bottle from the lab table where it was located and sprayed the liquid in plaintiff’s direction.  There was a substitute teacher rather than the regular classroom teacher that day (we actually had one prospective juror tell us she could not serve on the jury because in her view it’s always chaos when there’s a substitute and therefore the school is automatically responsible for what happens--needless to say we dismissed her).  There was differing testimony regarding whether the other student intentionally or unintentionally sprayed the bottle at the plaintiff.  The chemical in question was commonly used in the high school labs, but noted to have caustic characteristics due to its chemical composition.  The student who splashed the chemical acknowledged he knew what he was doing was against the policies and rules put in place by the teacher.  He had no record of any disciplinary or other conduct issues at the school and there was no history of any dispute or conflict between the two students.  Plaintiff’s primary claimed injury was a partial but permanent loss of taste, allegedly caused by the chemical coming into contact with his tongue.  Plaintiff called an expert neurologist who had only treated him once to testify regarding his claimed injuries.  As for liability, plaintiff’s main allegation against the school was the chemical bottle should not have been located on the table, but rather placed in a cabinet when not in use by the class for a lab activity.  Plaintiff’s counsel asked the jury to award his client a total of $800,000 in damages. 
A few interesting things happened during the trial.  First, the co-defendant student (now 18 years old) conceded partial responsibility during opening statements.  He then settled with the plaintiff on Day 1 of proof.  This left us with the questions of what to tell the jury and how to structure the verdict sheet because his conduct and negligence was still something the jury would consider.  The trial proceeded and the jury returned a verdict attributing 100% to the student who settled with the plaintiff earlier, 0% to the school district and awarded $5,000 for past pain and suffering and $0 for future pain and suffering, clearly not buying plaintiff’s claim of a permanent loss of taste.  Our client was very pleased with the result!
As always, please feel free to share this newsletter with friends and colleagues.  If you are interested in being added to our subscription list, e-mail me at [email protected].  And if would like to be added to Coverage Pointers e-mail Dan Kohane at [email protected] and/or Labor Law Pointers e-mail David Adams at [email protected].  We look forward to hearing from you!
[email protected]




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

08/01/18          Green v. Price Chopper, Inc.
Appellate Division, Second Department
Grocery store slip and fall case dismissed on motion based on trivial defect doctrine by trial court – plaintiff tripped on raised portion of rubber mat – but decision reversed on appeal.
The plaintiff was injured she fell in defendant’s grocery store due to the raised portion of a rubber mat.  The plaintiff’s husband testified that the raised portion was “two fat fingers” high.  The store manager testified that the bump in the map was about an inch high.  The motion was granted by the trial court on the grounds the plaintiff did not know what caused her to fall and if it was the raised mat the condition was trivial and not actionable.  The appellate court ruled that the motion should not have been granted on the first ground because that issue was not raised by defendant in its motion papers and therefore not established.  As for trivial defect, in determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.”  The Appellate Court determine that defendant submitted insufficient evidence establishing the defect was trivial.
08/29/18          Harris v. Live, Play and Bounce Corp.
Appellate Division, Second Department
Parents were unable to identify the cause of child’s accident at bounce house establishment, thereby entitling the defendant to summary judgment.
The infant plaintiff, who was 4 years old, was injured when she slid down an inflatable slide owned and operated by defendant.  Although both parents were present, they did not witness the incident that led to the injury.  Their first notice was when their daughter approached them crying.  Plaintiffs sued defendant claiming negligent maintenance with regard to the slide.  Defendant moved for summary judgment.   that the plaintiff was unable to identify the cause of her child’s accident. The plaintiff opposed the defendant’s motion and cross-moved for summary judgment on the issue of liability insofar as asserted against it. The defendant opposed the cross motion. Based on the deposition testimony of the child’s parents, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiff was unable to identify the cause of the child’s accident.
09/10/18          Ricci Wal-Mart Stores East, LP
United States District Court, Southern District of New York
Plaintiff’s inability to establish how the dangerous condition was created (hangers on the floor), or how long it existed for was fatal to her case and ultimately resulted in the dismissal of her lawsuit on motion.
Mrs. Ricci slipped and fell in Defendant’s store while shopping in the apparel department.  She alleged she stepped on a hanger in the ladies clothing department.  Between approximately 12:00 p.m. and 12:30 p.m., while walking through the Plus Size area of the ladies' apparel department, Mrs. Ricci’s right foot made contact with a hanger on the floor and she fell forward onto her knees.  Mrs. Ricci did not see the hanger before she slipped on it, but as she was falling, she observed that there were three opaque hangers with clips together on the floor.  Neither Mrs. Ricci nor her husband observed the hangers on the floor prior to Mrs. Ricci’s fall.  An employee assisting Mrs. Ricci allegedly told her that if she had to fall she “fell in a good place” because there was a security camera on the ceiling and that “there always seems to be hangers on the floor. Defendant ultimately submitted that Mrs. Ricci’s accident was not captured on camera because the Plus Size area of the ladies' apparel department was not under surveillance on the day of the accident. In her affidavit, Mrs. Ricci attests that she observed another Wal-Mart employee kicking three to four white plastic hangers, similar to the one Mrs. Ricci slipped on, out of the aisle and underneath a clothing rack and that a third Wal-Mart employee, the store’s assistant manager at the time of the accident, who filled out an incident report. Under claim description, the incident report states: “Customer fell from hanger on the floor.” (Id.). The incident report further states that the floor was wood, there were no defects, the surface was clean and dry, and there were no obstructions.  After Mrs. Ricci’s fall, Plaintiffs completed their purchases at the Wal-Mart Store and left together.  Wal-Mart employees testified that every employee is responsible for the safety of customers and trained to immediately remove garbage and debris from the store’s floor, including hangers. Hangers were to be removed from the floor to avoid customer slip and falls. Felicia Needam, a Wal-Mart employee who previously worked as a sales associate in the ladies' apparel section of the Wal-Mart Store, indicated that all personnel are supposed to do a store wide safety sweep every hour as announced over the store P.A. system. A safety sweep is when employees go around the store and pick up everything from the floor, including hangers, garbage, spills and other debris.   The parties do not dispute that hangers were on the floor in the ladies' apparel section of the Wal-Mart Store “on a daily basis.” Ms. Caillahua, the maintenance member, testified that during her safety sweeps of the ladies' apparel department, there were “[n]ot a lot” of hangers, but “sometimes [she] saw a few and then [she] had to pick them up.” Ms. Caillahua agreed that the reason for the continuous safety sweeps was because there were regularly hangers on the floor. The Wal-Mart Store’s operations assistant manager, Nicole Hoffman, testified that during her training in 2014 she was advised that “hangers were a safety hazard for a lot of stores.”   However, there were no reported accidents involving hangers in the Wal-Mart Store for one year prior to December 15, 2014, the accident date.
The Court reviewed the burden of proof standards stating that New York law governs the substantive slip-and-fall claim but federal law applies to procedural aspects of the claim which include which party bears the burden of proof on the motion.  Defendant may meet its burden by “showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.”  The Court viewed the case with this lens and grated Defendant’s motion holding that plaintiffs could not establish where the hangers came from, whether they were left there or created by Wal-Mart, nor could plaintiff establish the length of time the hangers were present on the floor before the plaintiff encountered them.  The Court went on to say that “although triable issues of fact remain as to whether the hanger was “visible and apparent,” the lack of evidence as to when the hanger appeared on the floor is fatal to Plaintiffs' claim of constructive notice.


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

It’s September and fall is essentially here.  Fall may be my favorite season – it’s getting cooler, there is color everywhere, things fall back into more of a routine and college football is back in full swing.  Life is good on that front - the Irish and UB both stand at 2-0.  This past Saturday a cold front blew through western New York and I was happy to wake up and put a sweatshirt on.  I’m just not a heat and humidity person. 
One of the interesting things about having a large music library is that you can track your mood by taking a look at what you have been listening to recently.  I’m not sure why, buts my playlists of late have shifted from a more mellow, alt-country vibe to a louder (and perhaps darker) tone.  Not so much acoustic guitar.  Artists in heavy rotation include the Menzingers, Jeff Rosenstock, Iron Chic (terrible band name), Dave Hause and the Royal Panics.  Electric guitars up front.  Perfect for blasting louder than you should, especially if you find yourself alone in your car (or minivan – we won’t judge).
This month we take a look at four Appellate Division, Second Department cases.  The first two cases address negligent supervision and hiring claims, with an evidence spoliation issue thrown in for good measure.  The latter two cases address prior written notice requirements.  One case addresses the specificity needed for adequate notice, while the second looks at the “special” use or benefit exception to prior written notice requirements. 
08/29/18          Francis v. Mount Vernon Board of Education
Appellate Division, Second Department
Absence of prior interactions or disciplinary issues and finding that the complained of incident was unanticipated and spontaneous resulted in dismissal of plaintiff’s claim of negligent supervision against the school district.  Fact that plaintiff’s counsel had viewed surveillance video prior to its loss/disappearance supported lower court’s determination to not strike defendant’s answer for evidence spoliation.
This case contains two relevant issues – the evidence necessary to support a claim for negligent supervision and an evidence spoliation claim as a result of the defendant’s loss of a surveillance video that apparently captured all or some of the underlying incident. 
The plaintiff in this case was a student at the district’s high school and was injured as a result of an altercation with several other students in a hallway.  As a result of that altercation, plaintiff was allegedly dropped on his head, causing injury.  He sued, claiming a lack of supervision by the district was a cause of his injury.  The district’s surveillance system recorded the incident.  Plaintiff and his counsel were able to view the surveillance recording, which was then lost at some time during discovery.
Without delving into any detailed recitation of the claimed facts, the court upheld the lower court’s granting summary judgment to the district.  This determination had two bases – first, that the incident was the result of spontaneous and/or unanticipated actions that the district could not reasonably been expected to stop.  The second ground was the lack of any prior negative interactions between plaintiff and the accused student(s) and the lack of any relevant disciplinary problems with the involved students.
The decision is not unanimous – there was a dissent by the Hon. Sandra Sgroi.  The dissent provides more detail about the incident, at least as alleged by the plaintiff, a series of events that, if true, could cross into bullying.  According to the dissent, the plaintiff, at both his hearing pursuant to General Municipal Law §50-h and his discovery deposition, testified that he and a friend were accosted in a crowded hallway by 4-5 other students who pushed him and his friend around for several minutes, and when he was walking away, he was picked up by one of the accosters and dropped on his head.  According to plaintiff’s mother, the surveillance video showed the “rough housing” in the hallway went on for 3-5 minutes before plaintiff was injured.  The dissent argues that this testimony creates at least a question of fact on whether the incident should/could have been stopped by school employees before the injury occurred.
As noted, the district’s surveillance system captured the incident and plaintiff’s counsel and his client’s mother were able to review that video.  The district then apparently lost the video at some point and it was not available for use in the ensuing litigation.  Plaintiff moved to strike the district’s answer as a sanction, which the lower court rejected.  The appellate court upheld this ruling, referring to the wide discretion given to the trial court to determine the appropriate sanction, if any, warranted following the loss of evidence.  The court specifically noted that because plaintiff and her counsel had been permitted to view the video before its loss, plaintiff would still be able to prove her case (presumably, plaintiff’s mother would be able to testify as to what she observed on the video).  The dissent agreed that striking the district’s answer was not warranted, but argued that a negative inference charge against the district was warranted if the matter went to trial.
My initial thought after reading the case was to wonder why plaintiff’s counsel did not demand a copy of the video after viewing it.  The case makes no reference to any request, so that may have occurred.  At any rate, the case illustrates why a party should take immediate steps to secure potential evidence, instead of assuming that evidence will be readily available at some later date.
08/29/18     KM v. Fencer’s Club, Inc.
Appellate Division, Second Department
Negligent supervision and hiring claim dismissed where defendant had no prior knowledge of employee’s “propensity” to commit acts of sexual misconduct.
Plaintiff was a student member of the defendant’s afterschool fencing program.  While in the program, one of the club’s adult coaches engaged in an illegal sexual relationship with the plaintiff.  The sexual contact with the infant plaintiff occurred at the coach’s apartment and outside of the club’s facilities.  The coach and the student communicated primarily by text message.  There were allegations that the coach may have made “provocative” statements to the plaintiff at the club, comments which were never reported to the club.  The coach was subsequently convicted on felony criminal charges and sentenced to prison.  The plaintiff and her parents sued the club, alleging that the club should have become aware of the coach’s “propensity” to engage in the conduct and therefore liable under theories of negligent hiring and supervision. 
The club successfully moved for summary judgment, an award upheld by the appellate court.  The club moved on two grounds. The first was that it could not be held liable for the coach’s actions as an employee under the doctrine of respondeat superior because the coach was not acting within scope of his employment when the illegal conduct occurred.  Without giving any detail, the appellate court found the club met its burden of proof, and that plaintiff failed to raise any question of fact.  That the illegal conduct occurred outside of the club’s facilities and scheduled program and had no relation to the coach’s coaching duties would seem to make this issue clear.
The second issue was whether the club should have been aware that the coach might engage in this type of behavior.  The court cites to no evidence that would suggest that the club had any information or suggestion that the coach was involved with the student, and the court found the club met its burden of establishing it had no notice of any potential or actual problem.  The plaintiff’s argued that the club did not perform criminal background checks when hiring instructors.  The court found that argument unpersuasive.  The court noted that the club was under no legal obligation to conduct a criminal background check, absent some information that would lead a reasonably prudent person to believe such check was warranted – proof the plaintiff could not present.  .  The court also noted that there was no evidence that a criminal background check would have revealed any information about the coach that such behavior was possible.
While a criminal background check in this case would not have revealed any potential problem, I was surprised to read that a club working with children did not mandate a criminal background check for a coach.  I would bet most parents would be surprised to learn their kid’s team or group did not conduct at least a basic check.  Some state and local governments have also enacted background check requirements for certain groups or positions and such checks may be required under an organization’s insurance policy.  That said, background check policies can vary widely.  What groups or organizations should require a check – coaches may be obvious, but what about a youth group run by your church? Or a charity that relies upon volunteers of all ages to staff one or two activities or fundraisers a year?  Who or what organization or vendor conducts the check and how comprehensive is the search?  Who is subject to the requirement - is it just coaches or does it extend to board members and administrators?  What about volunteers, including parents?  Who pays for the checks?  Many if not most sports teams and youth organizations operate on a pretty tight budget and the cost of checking every volunteer can become expensive.  And it can extend beyond just sports teams or other typical activities.  My daughter is a freshman in college and recently joined a tutoring group that works with kids at a nearby elementary school a couple of afternoons a week. The very first thing she had to do was provide information for a criminal background check.
08/22/18          Allen v. City of New York, et al.  
Appellate Division, Second Department
Prior written notice to the City of a pothole was not established by commercial “pothole” map that did not specifically indicate a pothole at the subject location.
Anyone who represents governmental or municipal defendants in the New York City area is familiar with the “pothole” maps, which are created by private entities and intended to serve as prior written notice to the local government of conditions on roadways, sidewalks, etc.  Not surprisingly, organizations supportive of the plaintiff’s bar are usually behind these organizations.  Anyone can report a supposed defect to these organizations, who then regularly submit the information to the local municipality.  A putative plaintiff who claims injury from a condition subject to a prior written notice requirement can then check these databases to see if the alleged defect had been reported.
In this case, plaintiff was injured when he fell after riding his bicycle into a pothole on a City of street in Queens, New York.  He then sued the City, which moved to dismiss the claim on the basis that its prior written notice requirement had not been met.  There was apparently no claim that the City had created or caused the condition, an exception to prior written notice requirements.  In opposition to the City’s motion, plaintiff submitted documentation from the Big Apple Pothole and Sidewalk Protection Corporation (operated by the New York State Trial Lawyers Association) that showed an alleged defect at or near the location where plaintiff fell.  The court rejected the corporation’s documentation as providing the City with the requisite prior written notice.  The “pothole” map indicated that there was a “raised or uneven portion of sidewalk” in the approximate area where the plaintiff’s bike ride came to its unfortunate end.  The court held this information was not specific enough to provide the requisite prior notice to the City of the pothole in the street that plaintiff claimed caused his downfall.
The practice point is obvious – prior written notice must be specific to the claimed defect.
08/22/18          Budoff v. City of New York, et al.
Appellate Division, Second Department
Prior written notice required for claim based upon alleged defect in bike lane on city street because the bike lane did not provide city with a “special benefit.”
Plaintiff was injured while riding his bike in a marked bike lane on a city street in Brooklyn, New York.   In response to his subsequent lawsuit, the city moved to dismiss based upon a lack of prior written notice. 

There are two primary exceptions to prior written notice requirements – where the municipality has created the allegedly dangerous condition and where the property or location provides the municipality with a special use or benefit.  A special benefit or use occurs where the municipality “derives a special benefit from the property unrelated to the public use.”

The city established both that it had no prior written notice of the alleged defect and that it had not affirmatively created the condition, against which the plaintiff could not establish a question of fact.  This left plaintiff to argue special use or benefit.  Plaintiff’s argument was that the presence of bike lanes throughout the city (not just the one where the accident occurred) provided the City of New York enhanced status and served to attract both tourists and residences alike to the city.  The court did not bite.

If accepted, plaintiff’s argument would have voided prior written notice requirements for any and all claim arising from bike lanes anywhere in the city.  If that argument was valid, wouldn’t it also apply to other city constructed or maintained locations or property?  What about claims arising from Central Park – it would be hard to argue that the presence of Central Park doesn’t “enhance” New York’s status and attract both tourists and residents.


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

Well, summer is over and school is back in session.  I think it is time for Alice Cooper to pen a “School Starts for Ever” rock anthem as there were pure tears of joy for the Potenza parents when we packed all three kids on the same bus going to the same school at the same time!!!   No more shuffling between pre-school and elementary school, with different start times and end times.  No more camps and babysitters. It was pure bliss.

We should see an uptick in decisions in the next few months, but there was just one appellate level toxic tort decision from August, a dismissal of an asbestos claim arising out of Nassau Coliseum on statute of  limitations grounds.

And now for this month’s dad joke, as told to me by my daughter after her first day of second grade (and I couldn’t be prouder):

Why didn’t Princess Elsa get a balloon on her birthday?

Because she would “Let it Go.”

08/15/18          O’Brien v. County of Nassau
Appellate Division, Second Department
Asbestos claim dismissed on statute of limitations grounds. 
Plaintiff filed a workers compensation in April 2012 claim alleging exposure to asbestos while working at Nassau Coliseum, and laboratory results confirmed lung restrictions due to the presence of asbestos in his lungs in September 2012.  The Second Department dismissed the claim as plaintiff commenced this action against Nassau County and the New York Islanders Hockey Club in November 2015, past the one-year and 90 day statute of limitations for filing a claim against a municipality and the three-year statute for non-municipal defendants. 

Plaintiff tried to keep his claim alive by alleging a fraudulent concealment claim. The statute of limitations begins to run on a fraud claim when a plaintiff attains knowledge of facts from which the fraud could have been discovered with reasonable diligence. Here, the fraud alleged was the concealment of the presence of asbestos at the Nassau Coliseum, of which the plaintiff admitted he became aware on March 24, 2012 when he filed in Workers’ Compensation claim.  As such, that claim was time-barred as well.


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

Dear Readers,
Greetings from that part of the country where you’ve probably been forced to turn on your conditioning and a heated blanket in the same twenty-four hour span. As we head into the Fall (at what appears to be break-neck speed), there’s a lot to look forward to and Western New York is a hot bed (or, rather, cool temperate bed) for fall-centric traditions—Apple picking. Wine tours. Haunted hayrides. Pumpkin carving.  The prolonged and slow death of the hopes and dreams of Buffalo Bills fans everywhere.  As a non-fan of football, I plan to embrace the coming weeks with open arms clad in a very nice lightweight down jacket.
This month’s cases embody what I perceive to be at the real heart of the fall season—drinking to stay warm and worrying about how you are going to clear all the snow from your driveway in a few months.
07/25/18          Abad v. Lorenzo, et al.
Appellate Division, Second Department
The one where online advertisement was insufficient to establish the Court’s jurisdiction over out-of-state defendants.
Plaintiff brought suit in New York State Supreme Court alleging a violation of New Jersey’s version of the Dram Shop Act (“the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act”) after Defendant Lorenzo struck plaintiff with his vehicle.  At the time of the accident, plaintiff was a passenger in a motor vehicle returning to New York from New Jersey.  The accident itself occurred in New Jersey.
Through his Complaint, plaintiff named a number of defendants, including three nightclubs/restaurants that allegedly served alcoholic beverages to a visibly intoxicated Lorenzo.   In response to plaintiff’s Complaint, two of the restaurant defendants moved to dismiss, arguing that a New York Court lacked personal jurisdiction over them. Generally, a court may exercise personal jurisdiction over a person or entity that transacts business within the state or contracts to supply goods or services in the state. On a jurisdictional challenge, the Court must determine whether the defendant transacted business in New York and, if so, whether the cause of action at-issue arose from that transaction. In the case then at bar, the Court determined that the moving restaurants did not conduct “sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of [the] action, so as to avail themselves of the benefits and protections of New York’s laws. The Court also determined that personal jurisdiction was not conferred pursuant to New York’s Long Arm statute.  Although plaintiff argued that the tortious activity occurred outside of New York, but caused an injury within the state, the court disagreed and determined that the situs of the injury was the location of the accident (New Jersey); not the location where the resulting damages were felt. Moreover, the plaintiff was again unable to demonstrate that the restaurant defendants regularly conducted business, solicited business, or engaged in any other persistent course of conduct in the State of New York.  Although plaintiff attempted to introduce evidence that one of the three restaurant defendants promoted its business across state lines via social media, the Court found this evidence to be insufficient “passive” internet activity “which merely imparts information without permitting a business transaction.”
05/30/18          Ferber v. Olde Erie Brew Pub & Grill, LLC, et al.  
Appellate Division, Second Department                                     
The one where the bartender’s word was enough to sustain summary judgment in favor of restaurant accused of illegally serving a minor.
Plaintiff, a passenger in a vehicle driven by 20 year old John Behler, was injured when Mr. Behler crashed the vehicle into a median guardrail barrier.  Prior to the accident, plaintiff and two other people met Mr. Behler for dinner and drinks at a restaurant called Hacienda.  Following the accident, plaintiff brought suit against Hacienda for violations of General Obligations Law § 11-100, primarily alleging that Hacienda negligently (and illegally) served alcohol to a minor. At the close of discovery, plaintiff moved for summary judgment on liability; defendant cross-moved for summary judgment dismissing the complaint.
“Liability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage.”  The Court determined that plaintiff failed to demonstrate prima facie entitlement to judgment in his favor and instead found that Hacienda had established its own entitlement to summary judgment. More particularly, Hacienda established through the submission of its bartender’s deposition testimony that it had no knowledge of, or reason to believe, the fact that Mr. Behler was under 21 years of age.  In response, plaintiff was unable to point to any evidence that would raise a triable issue of fact as to Hacienda’s actual or constructive knowledge.
08/29/18          Laronga  v. Atlas-Suffolk Corp., et al.
Appellate Division, Second Department                                     
The double whammie.
Plaintiff slipped and fell on a patch of ice in the parking lot of a mall owned by defendant Atlas-Suffolk. Co-defendant, Critics Choice, a retail tenant at the premises, was allegedly responsible for performing some snow-plowing services in the parking lot at-issue. At the conclusion of discovery, defendants Atlas and Critics moved separately for summary judgment—Atlas argued that a storm was in progress at the time of the loss and that therefore it could not be responsible for any accident caused by the accumulation of snow and/or ice until adequate time had passed at the conclusion of the storm such that Atlas would have had an opportunity to become aware of and correct any hazards.  Critics simply argued that it owed no duty to the plaintiff under its limited services agreement with Atlas (i.e. Critics made an Espinal argument).
On appeal from the trial court’s denial of both motions, the Second Department determined first, that Atlas had indeed failed to sustain its burden to establish its entitlement to judgment as a matter of law.  Specifically, the Court determined the climatological records Atlas submitted in support of its motion were contradicted by plaintiff’s deposition testimony that it was not snowing or raining on the morning of the accident.  As a result, plaintiff succeeded in illustrating the existence of a triable issue of fact as to whether there was a storm in progress at the time of loss.
With regard to Critics’ motion, however, the Appellate Division determined that the motion should have been granted because plaintiff failed to allege any facts establishing the existence of an exception to the general rule that “[a] limited contractual undertaking to provide snow removal services is an insufficient basis to find Critics liable, in tort, for the plaintiff’s injuries.”  Specifically, plaintiff failed to establish (1) that the snowplowing agreement between Atlas and Critics entirely displaced Atlas’s duty to maintain the premises in a safe condition; (2) that plaintiff relied upon Critics’ continued performance of the snowplowing agreement with Atlas; or (3) that Critics had negligently created or exacerbated the hazard.  Therefore, because Critics demonstrated that plaintiff was not a party to any snow removal contract between Critics and Atlas, and because plaintiff did not, in opposition, prove, with reference to evidence, the applicability of one of the three exceptions above, Critics established that it did not owe plaintiff a duty of care.


The Ups and Down of Elevator and General Litigation
By: James L. Maswick [email protected]

Up in Lake Placid, the weather has gone from 80 degree temperatures during Labor Day Weekend to a frost warning the second weekend of September. We are back up to weather in the 70’s. A long time saying once again proves true: “If you don’t like the weather in the Adirondacks, wait 15 minutes.” I just can’t quite bring myself to turn the heat on in the house in September. It just seems way too early. So, another sweater for us on those chilly nights.
This month brings a number of elevator decisions, including an interesting ruling from Federal Court strongly taking into account evidence of mis-leveling after the alleged accident took place.
As always, please reach out if you have any questions, comments or just want to say, “Hey!”

08/14/18   Tuckett v. Slade Industries, Inc., et al.
United States District Court, Southern District of New York
Court finds issue of fact because elevator defendants did not submit evidence elevator is functioning properly after mis-leveling accident.
The plaintiff was employed by the New York City Department of Corrections as a welder. in December, 2013, he was exiting a freight elevator on Riker’s Island when he tripped on the elevator door and injured his left knee. The elevator in question had “clamshell” doors that would open in the middle with the top door retracting into the ceiling and the bottom door retracting into the floor. There was also an interior gate that opened vertically and ascended into the ceiling. The gate would close first, and then the clamshell doors would close. At the elevator, the plaintiff was with two other DOC electricians. When the elevator arrived at the main floor, both clamshell doors and the gate opened, but his left foot became caught on the top of the lower clamshell door which was sticking out approximately 2-3 inches. Tuckett tripped and injured his left knee and was required to have surgery.
The procedure for reporting issues with the elevator to Slade, the elevator repair company, was to bring issues to the attention of Corrections Officer (CO) Housman who would then notify CO Phillips. CO Phillips testified he did not remember receiving any notifications from employees about doors failing to fully open prior to the accident of the plaintiff nor notifying Slade of any of these problems. However, there were indications that other COs and civilian employees had advised CO Housman of prior issues with the elevator doors failing to fully open. While there was no evidence Housman reported these issues to Slade or CO Phillips, another civilian employee testified that he told two Slade elevator mechanics of the mis-leveling issue 1-2 months before the accident. Just one week prior to the accident, preventative maintenance was done and no issues with mis-leveling were found by Slade. Additionally, on the same day of the preventative maintenance, the New York City Department of Buildings inspected the elevator and it passed.
Notably here, the Court found that the Slade defendants had not established entitlement to summary judgment because it failed to show that the elevator was functioning properly after Tuckett’s accident. While the Court noted that the similarities between the prior decisions where the Building Department had reviewed the elevator just prior to the accident and the elevator had passed, the Court noted that “Slade has presented no evidence that the elevator was functioning properly after the accident.” Here, there is actually evidence that the elevator was not functioning properly and that the clamshell doors were not receding completely following Tuckett’s injury. The Court denied the summary judgment motion.
Practice Tip:  For anyone who represents elevator companies, it seems prudent to also submit evidence of how the elevator is functioning after the accident to bolster your summary judgment motion.
08/20/18    Ferrer v. New York City Transit Authority
Supreme Court, County of New York
Escalator wet spot coupled with litany of other factors dooms plaintiff’s personal injury case.
Plaintiff was injured when he allegedly slipped and fell on a wet area at a subway station escalator. This action was commenced against the defendant Transit Authority which maintained the subway station where the accident occurred. The New York City Transit Authority moved for summary judgment on the basis that it had neither actual nor constructive notice of the allegedly unsafe condition—the liquid which was allegedly on the escalator.
Transit met its burden by presenting evidence, including plaintiff’s testimony, that the cause of the fall was unclear due to the crowd and pushing at the escalator. The plaintiffs contended defendant had actual or constructive notice of the wet condition, but the Court noted the testimony of the station cleaner who indicated she used a twice daily cleaning schedule. The second cleaning had started just before the accident occurred. The Court noted that when a “reasonable cleaning routine was established and followed, liability cannot be imposed” and “the Court cannot impose a duty upon a municipal authority to alter its cleaning schedule or hire additional cleaners without a showing that the established schedule is manifestly unreasonable.” Not helping plaintiff’s case was the fact that he was unable to recall the exact source of his fall and did not know what the liquid was. He also testified people were pushing and noted he was wheeling a large suitcase behind him which the Court found could have contributed to the fall.
The Court was also suspicious of plaintiff’s witness who claimed to have noticed wetness on the escalator 30 minutes before plaintiff’s fall. The Court noted, “Curiously, the witness does not explain the circumstances of his presence on the subway escalator just a short while earlier.”
Taking all of these things into account, the Court granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint.
08/14/18   Cullen v. PWV Acquisition, LLC
Supreme Court, County of New York
Defendant building owner and elevator company motions for summary judgment denied
In this elevator accident case, it is undisputed that the door closed on the plaintiff’s left arm as she exited the elevator and she fell to the floor of the elevator’s cab. The door was equipped with electronic sensors that should have caused it to open when a physical presence was detected in the elevator doorway, but the door nonetheless came into contact with the plaintiff. The defendants could loosely be classified as the property owner and as the elevator repair company. The building owners, in support of their motion for summary judgment, submitted an affidavit of its property manager, its doorman and the elevator company’s elevator inspector. They also submitted a video recording of the incident authenticated by the building’s Superintendent. They also submitted inspection records, repair records and the elevator maintenance contract with the elevator repair company. There was a work ticket for an inspection which was held just two days prior to the date the accident occurred. The elevator also passed a City inspection ten months prior to the accident and, coupled with the elevator inspection company’s inspection two days prior, found nothing wrong with the elevator. The elevator inspector indicated that he inspected the elevator one hour after the accident and found it to be working properly and made no repairs or adjustments. There were also no prior complaints of the door closing inappropriately. The elevator inspector also reviewed the video and found that it merely brushed plaintiff’s arm when it began to close.
In opposition, the plaintiff’s expert indicated that the elevator door did not meet the current standards of the American Society of Mechanical Engineering since it came into contact with the plaintiff’s arm. The door also closed prematurely, after only two seconds during the course of the accident. He found it could not be pinpointed what force was generated by the door from the available evidence. Notably, the doorman for the property owners indicated that he had received complaints prior to the accident that the elevators were either not steady or issues regarding the elevator doors.
The Court found that, while the defendants demonstrated prima facie that the elevator was neither defective nor dangerous, the plaintiffs had raised a notable issue of fact with their expert’s affidavit that the door was defective and posed a danger. The Court also pointed to the fact that the doorman knew about problems with the closing of the door.
The Court also found that building owner defendants did not meet their showing on a motion for summary judgment that res ipsa loquitor was not applicable to them. The Court found that the building owner defendants did not meet their burden with respect to exclusive control over the elevator for res ipsa purposes. A building owner may only avoid applicability of the doctrine of res ipsa when the elevator maintenance company’s control over every aspect of an elevator is “absolute.” The Court found that in reviewing the 4-page elevator maintenance contract between the elevator company and the building owners that the contract merely stated that it is a “full-service contract”, but did not describe what that term entails and did not prohibit entities other than the elevator company from making alterations, additions, adjustments, repairs or replacements, nor did it contain specific language that all responsibility of the daily operation of the elevators had been provided to the elevator company. It also did not require the elevator company to have a mechanic on site to handle service, inspection and repair calls.
Also found, for res ipsa purposes, a triable issue of fact existed as to whether the elevator company exercised control over the elevators because the inspections in the three months prior to the accident “did not involve the alteration, adjustment, repair or replacement of any parts or systems of the elevator, but only observations of the condition of the elevator.” The defendant property owner’s motion for summary judgment was denied by the Court.
Practice Tip:  While it is likely that the property owner and elevator maintenance company intended to enter into an exclusive maintenance contract, it is apparent that the Court here wanted to see additional language in the contract to make that finding. I believe that this is a difficult decision for a property owner, who likely thought they were doing the right thing by hiring and thought they were delegating the maintenance and repair of the elevators to the elevator repair company, but fail to prevail on summary judgment because of the lack of certain specific terms in the contract. Further, the fact that the elevator company’s three inspections prior to the accident did not involve repair or replacement of parts does not seem to indicate that the property owner was then making repairs to the elevator. Instead, because it was a “view only” inspection and nothing was found to be wrong, why does this seem to mean the property owner did not delegate the elevator repair fully? If the elevator repair company, which is undoubtedly the expert in the field of elevator repair, does not believe that any hands on work needed to be done during these months, why is this used as evidence the property owner did not fully delegate responsibility to the elevator repair company?


Homeowner Liability, Discovery, and Evidence Hodgepodge
By: Marc A. Schulz [email protected]

Greeting Subscribers!
The Bills home opener is this weekend and the weather is forecasted for low 80s and mostly sunny. Win or lose, we always enjoy our tailgating here in Buffalo regardless of the weather, and I am looking forward to watching Bills mafia tomfoolery. This month, I report on three cases where the appellate courts reversed the trial court and denied the property owners’ motion for summary judgment, as well as two trivial defect cases where courts agreed were not actionable. The Hernandez case contains excellent practice points for those looking for a refresher on the storm-in-progress doctrine.   
Hope your fantasy teams avoid untimely injuries and bad matchups. Until next issue, enjoy what is left of these last few sunny days…
08/15/18          Cobham v 330 W 34th SPE, LLC
Appellate Division, Second Department                                     
Depressed tile floor which allegedly caused plaintiff to trip and fell constituted a trivial defect.
Plaintiff allegedly was injured when she tripped and fell over a depressed portion of a tile floor at her work on the 11th floor of a building. The trial court granted defendant’s motion for summary judgment seeking dismissal of the complaint because the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and thus, was not actionable. The Second Department affirmed as defendant submitted an expert affidavit, photographs that showed the alleged condition as it existed at the time of the accident, and plaintiff’s testimony describing the time, place, and circumstance surrounding her injury.
08/22/18          Speredowich v Long Is. Rail Rd. Co.
Appellate Division, Second Department                                     
A crack on a train platform that caused plaintiff’s heel to become stuck also held a trivial defect.
Plaintiff allegedly was injured when the heel of her right shoe became caught in a crack on a train platform, causing her to fall. At trial, plaintiff introduced photographs of the crack and testified the crack was ½ inch wide, 9-12 inches long and ¼ inch deep. Defendant then moved pursuant to CPLR § 4401 for a directed verdict, which the trial court granted, contending the crack was trivial and thus not actionable. The Second Department affirmed, finding the crack that allegedly caused plaintiff to trip and fall was trivial as a matter of law.
08/29/18          Dudnik v 1055 Hylan Offices, LLC
Appellate Division, Second Department                                     
Failure to address all allegations of negligence will result in denial of defendant’s motion for summary judgment.
Plaintiff allegedly tripped on a pillar of a metal railing on the top landing of an exterior staircase at defendant’s building. The trial court granted defendant’s motion for summary judgment dismissing the complaint because the railing that caused plaintiff to trip was open and obvious and not inherently dangerous.
The Second Department reversed, finding defendant failed to meet its burden in establishing the metal railing was not inherently dangerous in light of its location, and defendant also failed to establish that it lacked notice of the alleged dangerous condition.
09/05/18          Hernandez v 2800 LLC
Supreme Court, Bronx County                                                   
Failure to address all allegations of negligence in moving for summary judgment again results in a loss for defendant, but with a notably storm-in-progress twist.
Plaintiff opened the front door on the premises to get to his apartment building, took two steps onto the ramp, and allegedly slipped and fell on snow, ice or both that was present on the ramp. Defendant moved for summary judgment arguing storm-in-progress, and plaintiff opposed by arguing triable issues of fact exist whether a storm was in progress at the time of the accident, whether any snow and ice removal efforts by defendant created or exacerbated the condition of the ramp, among others.
The trial court found that since plaintiff testified that at the time he exited the building, it was snowing, that evidence was sufficient to establish, prima facie, the applicability of the storm-in-progress doctrine. The court also noted that the climatological data submitted by plaintiff confirmed defendant’s proof that the weather was inclement when plaintiff fell, including rain, drizzle, freezing rain, freezing drizzle, fog, and mist. However, the trial court only held that defense applied to the claim that defendant failed to remedy the snow and ice condition on the ramp.
As for plaintiff’s claim that the ramp was defective and constituted a hazardous condition that proximately caused plaintiff’s injury, the storm-in-progress defense did not apply. Accordingly, because defendant failed to address the claim that the ramp itself presented a hazardous condition, the trial court denied that portion of defendant’s motion for failure to eliminate all issues of fact as to whether it created any such condition and whether it had constructive notice of any such condition.
09/12/18          Bartels v Eack
Appellate Division, Second Department                                     
Failure to address all allegations of negligence again results in denial of defendant’s motion for summary judgment.
Plaintiff leased property from defendant and allegedly slipped and fell on an icy condition in the driveway area adjourning the entrance door. The trial court granted defendant’s summary judgment motion on the grounds that they were out-of-possession landlords and plaintiff had the sole responsibility for snow and ice removal.
The Second Department affirmed as defendant established the parties agreed that plaintiff would be responsible for snow and ice removal and that plaintiff, in fact, performed snow and ice removal. The Court agreed with the trial court’s determination to disregard his averment in opposition that no such agreement was reached as an attempt to address the consequences of his deposition testimony.
Plaintiff, however, further alleged his accident was also caused by the defective drainage system, which made the driveway area near the entrance prone to pooling and freezing of water from the roof and lawn area. The Court found triable issues of fact as to whether plaintiff’s accident was at least caused in part by defendant’s affirmative creation of, or failure to rectify, the defective condition of the drainage system, which defendant had the duty to rectify.
09/13/18          Suarez v Emerald 115 Mosholu LLC
Appellate Division, First Department                                         
Conflicting expert opinions as to whether the dangerous condition of a sidewalk results in denial of defendant’s motion for summary judgment.
Plaintiff slipped and fell on a sidewalk when his right foot “went into a little ditch”, causing him to lean forward and his left foot “went into another crack”, causing him to fall on his right side. Defendant’s expert said the largest differential in vertical displacement of the sidewalk was 5/8th-inch whereas plaintiff’s expert said it was over half an inch. The trial court denied defendant’s summary judgment motion asserting the sidewalk defect was trivial.
The First Department affirmed because the case law prohibits the court from determining triviality on size alone, and plaintiff’s expert raised an issue of fact whether the defect created a “trap-like hazardous condition” based on the dimension of the opening and that it had been noticeable for at least one year prior to plaintiff’s fall.




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]


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