Premises Pointers - Volume II, No. 5

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 www.hurwitzfine.com.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSOCIATE EDITOR
Todd C. Bushway
[email protected]

ASSISTANT EDITORS
V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

James L. Maswick
[email protected]

Marc A. Schulz
[email protected]

WHAT PREMISES POINTERS COVERS
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: Greetings from downtown Buffalo on a chilly, rainy October day.  The weather suits the moods of many Buffalonians after the Bills' tough loss to Houston yesterday.  While I didn’t watch the game, my husband and sons could be heard throughout the house expressing their displeasure.  This month, we have a good collection of cases from our columnists, along with an update from guest columnist Earl K. Cantwell regarding dog bites and dog owner/landlord.  Earl was recently asked by a client to provide an overview of the current law in several jurisdictions and I thought it would be a good thing to pass on to our readers.  He was assisted by one of our law clerks, Joe Bargnesi, who is a second year student at UB Law School.    
 
Last month, I had a subscriber send an e-mail asking why so many of our cases were from the Second Department.  First, thank you for the e-mail!  I’m happy to answer any questions so please keep them coming!  Regarding the question, we search cases from all New York State Appellate Division Departments and District Courts.  However, there are always more cases from the Second Department and Southern District of New York due to their location and the volume of cases that come out of the five boroughs of New York City and surrounding areas.  Below are maps of the judicial departments in New York State Court and the Federal Court districts in New York.

As always, please feel free to share this newsletter with friends and colleagues.  If you are interested in being added to our subscription list, you can sign up directly here.  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!
 
Jody

Guest Contributor Column: "Vicious Propensities" with Respect to Establishing Negligence and Defenses

By: Earl K. Cantwell, Esq. [email protected] and Joe Bargnesi

New York:
To recover in strict liability in tort for personal injuries caused by a dog, a plaintiff must establish that the dog had VICIOUS PROPENSITIES, and that the owner KNEW or should have known of these vicious propensities. Evidence tending to demonstrate vicious propensities includes evidence of prior attack; tendency to growl, snap, or bare its teeth; the manner in which the dog was restrained; and if the dog was kept as a guard dog. Ioveno v. Schwartz, 139 A.D.3d 297 (2^nd Dept. 2016). In Ioveno, it was held that a minor child bitten by a dog could not establish a strict liability personal injury claim against the dog’s owners. He had previously been a guest on about ten occasions without incident. Even if the dog previously barked at people or growled at strangers, there was no evidence the dog had bitten anyone, or exhibited aggressive behavior, or had been trained to guard the home. If a dog is trained to guard, that may be a claims and underwriting issue.

Read More

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

09/21/18          Lyman v. Petsmart, Inc.
United States District Court, Southern District of New York
Defendant’s motion for summary judgment granted because plaintiff had no proof of actual or constructive notice to defendant of dog urine she slipped in and defendant’s knowledge that dogs were present in the store was insufficient.

Plaintiff Lisa Lyman and her granddaughter were shopping at a local Petsmart store when she slipped in a puddle of dog urine causing her to fall down onto her back and into the puddle.  Plaintiff conceded she never saw the puddle before she fell and did not know what caused her to fall until after she was on the ground.  The store safety captain Mr. Silva estimate seeing ten dogs in the 30 minutes before the accident and that there were 4 employees working through the public area of the store.  Defendant’s employees are trained in the prevention of customer accidents and directed to be on constant lookout for any type of pet waste that would be on the floor.  Plaintiff’s fall happened at 5:30 p.m.  Mr. Silva testified that on the day of Plaintiff’s fall he performed his 5:00 p.m. walk, which he approximated would have placed him in the area of the Plaintiff’s fall at around 5:00 p.m. to 5:05 p.m. – approximately 25 to 30 minutes before the accident occurred.  Plaintiff claims Petsmart created a dangerous condition because the urine was on the floor and because Petsmart allowed dogs to roam the store.  The Court rejected this argument ruling Plaintiff offered no evidence that Petsmart created the condition and no evidence Petsmart’s employees were aware of the puddle of urine that caused Plaintiff’s fall. Plaintiff also failed to demonstrate that the condition was visible and apparent and presented no factual evidence to support a conclusion as to how or when the dog urine was deposited on the floor” of the store.  In order to “get to a jury, [Plaintiff] is required to provide some basis for an inference that the spill was there long enough to blame [Defendant] for the accident.” Moreover, “Defendant need not offer any evidence showing that its cleaning and inspection practices would have revealed the existence of a dangerous condition, but must only demonstrate that Plaintiff lacks affirmative proof sufficient to establish a genuine issue of fact with respect to the element of notice.”
 
9/26/18            Spano v. Apogee Retail NY, LLC
Appellate Division, Second Department
State court granted summary judgment to defendants based on evidence of a last inspection 15 minutes prior to plaintiff’s alleged fall.

The plaintiff Elaine R. Spano allegedly sustained injuries when she slipped and fell on an approximately 18-square-inch area of debris consisting of potting soil, gravel, tiny pieces of glass, and plastic tie knots. The accident occurred while plaintiff was traversing the sidewalk adjacent to the parking lot outside of an indoor flea market and situated near a flower shop that operated within the flea market. The injured plaintiff had exited the flea market through the back door of the flower shop moments before the accident. The defendants, the owner of the flea market, and the lessees of the subject premises, moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion. The plaintiffs appealed, contending that summary judgment should have been denied because they raised a triable issue of fact on the issue of constructive notice.  The moving defendants established their prima facie entitlement to judgment as a matter of law. The affidavits and deposition testimony of the security and maintenance employees who were working on the premises demonstrated that the area in question was inspected 15 minutes before the injured plaintiff's accident and that no dirt or debris was observed at that time.
 
09/28/18          Burden v. Wal-Mart Stores
United States District Court, Southern District of New York
Plaintiff[s’ burden in opposition to a summary judgment motion is not merely to proffer a plausible theory, but to present evidence from which a reasonable jury could draw the inference that Defendant created the hazardous condition.

Plaintiffs allege that while shopping at Wal-Mart Mr. Burden was injured when a bottle of body wash fell off the shelf and struck his middle toe.  Mr. Burden testified that he was attempting to grab a bottle of shampoo that was placed on a shelf “bove [his] head,” and out of his reach. Mr. Burden “tried to pull it off the shelf, but [he] couldn’t.”  The bottle—“[t]he item that [he] w[as] touching”—then fell and hit his toe. Nothing else fell, “just the shampoo bottle,” specifically “the one that [Mr. Burden] w[as] touching.”  Mr. Burden further testified that the bottle that fell on his toe was standing “[u]pright.” Mr. Burden also testified that there were no “bottles stacked on top of th[e] bottle” that he attempted to grab and that fell on his toe.  Mrs. Burden said that “[t]wo items” fell from the shelf above the shelf Mr. Burden was reaching for.  Mrs. Burden claimed there were “four or five” items stacked horizontally, but she never actually saw “any ... items stacked [horizontally] prior to them falling off the shelf,” nor did she “observe any Wal-Mart employees stocking th[e] area” where the incident occurred.  Irrespective of whether there even was a hazardous condition, given Mr. Burden’s own testimony about the events in question, there is simply no evidence in the record that supports an inference that Defendant or its agents committed an act that created such a condition.   Absent such evidence, Plaintiffs cannot prove that Defendant created the condition.  The court stated that “Plaintiff[s’] burden at this stage of the proceedings is not merely to proffer a plausible theory, but to present evidence from which a reasonable jury could draw the inference that Defendant created the hazardous condition.”  Further, there was no evidence of constructive notice of the allegedly defective bottle stacking.  There was no testimony of any Wal-Mart employee being in the vicinity of the aisle in question at any time before the incident. Thus, Plaintiffs failed to present any evidence other than speculation regarding whether the defect was visible and apparent and regarding the length of time the defect was occurring.  Defendant’s Summary Judgment Motion was granted.
 
10/10/18          Frankl v. Costco Wholesale Corporation
Appellate Division, Second Department
A bin with wheels located in defendant’s store was not a dangerous condition.

The plaintiff allegedly was injured inside the defendant’s store when she fell after she grabbed the side of a mesh wire bin. The bin was on wheels and moved forward when the plaintiff grabbed it. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.  Plaintiff appealed.  In support of its motion, the defendant established, prima facie, that the wheels on the bin were open and obvious and readily observable by the reasonable use of one’s senses, and that the bin was not inherently dangerous. The Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing was affirmed.
 
10/10/18          Nachman v. Koureichi
Appellate Division, Second Department
Plaintiff’s complaint dismissed against defendant Stop and Shop because delivery driver delivering Stop and Shop groceries was not an employee of Stop and Shop at the time of a motor vehicle accident involving plaintiff.

The plaintiff awas injured when she was struck by a vehicle owned and operated by the defendant Cheick Koureichi. At the time, Koureichi was working as a driver for the defendant Hudson Delivery Service, Inc., who had an agreement with the defendant Stop & Shop Supermarket Company, LLC to provide a home delivery service for customers of the Stop & Shop supermarket located at Avenue Y in Brooklyn. Koureichi was delivering groceries for Stop & Shop at the time of the accident. Hudson and Stop & Shop moved for summary judgment dismissing the complaint and the Supreme Court denied the motions.
 
As a general rule, an employer who hires an independent contractor, as distinguished from an employee or servant, is not liable for the negligent acts of the independent contractor.  Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability.  Factors relevant to assessing control include whether a worker (1) worked at [her or] his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll, and (5) was on a fixed schedule.  Contrary to Hudson’s contention, the evidence it submitted in support of its motion did not eliminate all triable issues of fact as to whether Koureichi was an independent contractor when the accident.  Among other things, the evidence submitted by Hudson indicated that Koureichi worked for Hudson six days per week, from 10:00 a.m. to 7:00 p.m., that he was required to call a supervisor employed by Hudson if he could not report to work, that he wore a t-shirt provided by Hudson, for which he paid Hudson, which had “Same–Day Delivery” printed on it, and that he had a two-way radio provided by Hudson, for which Koureichi also paid Hudson. In light of Hudson’s failure to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied.  However, the Appellate Division concluded that the Supreme Court should have granted Stop & Shop’s motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Stop & Shop established, prima facie, its entitlement to judgment as a matter of law. That evidence included Koureichi’s deposition testimony that he did not know the names of any of Stop & Shop’s managers, that he had no contact with them, and that Stop & Shop’s managers did not control the hours that he worked or how he made deliveries.

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

Greetings from mid-October.  This fall has been good to our household.  Jeans and sweatshirt weather (and sleep inducing cool nights) has finally arrived.  A trip to Philadelphia for parents/family weekend verified the reports trickling in from my daughter’s first semester at Villanova--she loves the school, gets along with her roommates and had made a slew of friends, has joined a couple of organizations and clubs and raves about her classes.  It’s what every parent wants to hear.  I’ve been to two regattas to watch my son row and neither involved cold, wind, rain or mud.  The next two weekends bring the final regattas for this fall, making the return of “normal” race conditions likely.  And to top it off, the 4^th ranked Irish are 7-0 (and have a defense – key, since defense wins championships) and UB is 6-1 and rolling through the MAC.  For all you NFL draft junkies out there who haven’t gotten on the bandwagon yet, pencil in UB’s 6’7” QB Tyree Jackson as a top 15 pick for the 2020 draft. 
 
Musically, there will be shows to report in November’s issue.  Social Distortion tomorrow, Johnny Marr on Saturday, Guided by Voices on the 26^th and the Breeders on the 30^th.  And that doesn’t include a couple of good smaller shows, if I’m motivated.  The last two weeks were symphonic as well – shows by Neko Case, the Supersuckers and Sarah Borges opening for the Bottle Rockets.  Case and the Borges opener were the highlights.  For those looking for something to listen to, check out Albert Hammond Jr.’s Francis Trouble and Adam’s House Cat’s Town Burned Down.  Hammond is the former guitarist for the Strokes – the record is a mellow bit of guitar ear candy.  Adam’s House Cat is the predecessor band to the scorching powerhouse that is the Drive By Truckers.  Town Burned Down is an unreleased record from 1990, with Patterson Hood going back and rerecording the vocal tracks.  For Trucker’s fans, the first track is an acoustic version of “Lookout Mountain,” with a totally different opening guitar line and none of the visceral power that appeared on 2004’s The Dirty South. 
 
On to the cases.  We have two late notice of claim and two school supervision cases. The first late notice case looks at the putative defendant’s knowledge of the key facts and circumstances (it turns out that the application is stronger if the municipal entity actually knew the underlying incident occurred), while the second addresses whether the claimed injury constitutes a valid excuse for the late filing.  The two school district liability cases arise from altercations between students and look at what facts and circumstances create questions of fact on negligent supervision, foreseeability and proximate cause claims.
 
Thanks for reading. 

Todd
 
 
October 10, 2018       Moroz v. City of New York
Appellate Division, Second Department
Late Notice of Claim – Plaintiff failed to establish defendant had timely knowledge of the claim where there was no evidence that defendant even knew the accident happened.

This case arises from an injury that occurred on a construction site at a school building owned by the defendant.  Plaintiff was employed by one of the contractors at the site and was injured when, while standing on one level of scaffolding, he was struck by a falling scaffold plank.
 
Seven months after the accident (and four months after the 90 day period to timely file), plaintiff filed an application to serve a late notice of claim.  The requirement that the party seeking permission to make the late filing show that the potential defendant “acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter” is axiomatic in late notice cases.  Here, the court found this requirement not met because the record was “devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner’s accident had occurred.” 
 
Typically the discussion about whether the municipal entity had the requisite notice centers on whether the municipal entity’s knowledge of the incident was sufficient to constitute knowledge of the basis of the proposed claim – a typical case might center on whether an incident report that documents an injury is sufficient to give the municipality an awareness of the facts and circumstances that underlie the proposed claim.  You have to play the hand you’re dealt, but awareness the accident even occurred might be a necessary first step.
 
The court also noted that the physical circumstances of the accident where “transitory” and therefore create substantial prejudice to the municipal entities.  I’ve always found this an interesting argument – construction projects by their very nature are always changing – the physical conditions had likely changed well before 90 days expired.
 
This fact scenario makes this a classic New York Labor Law §240 and §241(6) case.  Those of you fascinated by the inner workings of New York Labor Law cases should subscribe to our sister publication Labor Law Pointers, edited by the esteemed David Adams, Esq. Click here to take a look at that newsletter.  If you would like to subscribe to Labor Law Pointers or any of our other publications, please let us know. 
 
 
October 10, 2018 Ashkenazie v. City of New York
Appellate Division, Second Department
Plaintiff’s alleged injuries and medical treatment did constitute a reasonable excuse for failing to file a timely notice of claim.

Claimant tripped and fell on an allegedly defective sidewalk.  Shortly after the 90 day period for filing a notice of claim expired, instead of seeking permission to serve a late notice, she served a notice of claim directly upon the city, which promptly rejected the notice.  Some nine months later, claimant sought permission to file the late notice. 
 
She argued her injuries and treatment were such that she was unable to make the timely filing and thus constituted a “reasonable excuse” for the late filing.  This was soundly rejected – the court noted that a review of those records showed that “long before|” the 90 days had passed, the claimant’s injuries had “substantially healed” and she “no longer required any pain medication.”  That record is not going to support an argument that the alleged injuries from the accident were so debilitating that the claimant could not have sought leave at any earlier point, and that’s putting aside, as the court noted, any explanation for the nine month gap between the city’s rejection of the initial notice of claim and the present petition.
 
 
October 10, 2018       Gaston v. East Ramapo Central School District
Appellate Division, Second Department
Court finds a question of fact on whether the actions of the defendant student were foreseeable and if the alleged negligent supervision was a proximate cause of the underlying incident.

Plaintiff was a 10^th grade student at the defendant’s high school who was stabbed by a fellow student in a school hallway between classes.  The school district moved for summary judgment, arguing that the plaintiff had not met its burden of establishing that the attack on plaintiff, based upon the assailant’s school record, was foreseeable and that an alleged lack of supervision – i.e. monitoring of the hallway, was a proximate cause of the assault.
 
Reading the appellate decision gives no explanation for the court’s rejection of the school’s arguments – the court sets forth the settled case law, followed by a conclusory statement that the defendant had not met its burden of proof on foreseeability and proximate cause.
 
E-filing is a great thing, allowing me, from the comfort of my office Buffalo, to pull up the Rockland County file for this action and read the underlying motion papers and see for myself what was before the court.  
 
The evidence below consisted of the testimony of the plaintiff and a school security guard, as well the school’s records regarding the assailant.  It was undisputed there was no prior history between plaintiff and his assailant.  Plaintiff testified that attack happened in a school hallway between 1^st and 2^nd periods and that only four people were in the hallway at the time besides himself – two friends that were with him, the assailant and one other student.  He further testified that normally the hallway was full of students and that he would see a security guard stationed in the hallway and teachers standing outside their classrooms.  He could not provide an explanation for the difference between a normal day and the day of the attack.  Plaintiff claimed that his assailant, for unknown reasons, directed a verbal assault towards him, to which he responded by challenging his soon to be assailant to say it “to his face.”  According to plaintiff, sometime in the next one to two minutes, the other student stabbed him.
 
School records showed that the assailant had been involved in two prior violent incidents – an assault on a bus four months prior and a fight on school grounds several months before that.  The remainder of his record consisted of a mix of write ups and suspensions for insubordination, cutting class, foul language and violations of the school’s cell phone use policies.
 
The school had nine security guards and produced the senior guard at a deposition.  He testified that one guard was stationed at the main entrance and the other eight roamed throughout the school.  One of these guards would typically be present in the hallway where the incident occurred and school policy was that the guards would respond to any observed verbal altercations immediately.  The senior guard testified that the guards were aware of the assailant and had previously discussed keeping watch on him.  The senior guard could not answer why the guard normally assigned to the subject hallway was not, at least according to the plaintiff, present in the hallway when the incident occurred.  The guard normally assigned to the hallway in question was not deposed.
 
Based upon these facts, it is easier to understand the court’s reasoning. The trial court found that, the assailant’s prior violent acts (although admittedly not involving plaintiff) were sufficient to create a question of fact on whether the assault was foreseeable. The lack of clarity about who was in the hallway (or supposed to be) at that time of the attack make the court’s finding there was a question of fact on the plaintiff’s negligent supervision claim is understandable.  The trial court also noted that the guard normally assigned to the hallway was not deposed – that testimony would have potentially added necessary information on that point.
 
Once the underlying facts are understood,  the Appellate Division, Second Department’s decision is understandable – inconsistencies on key points, either in factual testimony or between policies and protocols and what is alleged to have occurred will almost always doom a motion for summary judgment.
 
 
October 2, 2018         M.P. v. Central Islip Union Free School District
New York Supreme Court – Suffolk County
Questions of fact regarding alleged negligent supervision and proximate cause precluded summary judgment for the defendant school district.

Plaintiff’s alleged injuries occurred when she was in kindergarten – while walking in a school hallway, a fellow kindergarten student pushed her into the wall, allegedly because she had bumped into her classmate earlier in the day.  No member of the school’s staff observed the incident.
 
The school principal testified at a deposition that the fact that incident was not witnesses by any member of the school staff was inconsistent with school policy, which mandated “continuous observation” of the kindergarten students from their arrival to departure each day.  The court also noted that while the district offered uncontroverted proof that there was no prior history of any problems between the two students, the district did not submit any proof about whether there had been any issues between the student who pushed plaintiff and any other students at the school.  Finally, the court noted that there was varying testimony about the timing of the incident. 
 
The Court found these factors created a question of fact on the claims of negligent supervision, foreseeability and whether the event had occurred so quickly so as to make intervention unreasonable.
 
I see two practice pointers here.  The first is addressing the difference between the facts alleged and school policy on supervision and oversight.  The second is what the district submitted about the alleged delinquent’s past – compare this case to Gaston above – in Gaston the proof included not just the history between the plaintiff and his assailant, but the assailant’s history  of similar incidents with other students.

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

October is my favorite month of the year.  The weather is fantastic, the leaves are changing color, the Bills are still mathematically alive for the playoffs, and I can celebrate my birthday and anniversary.  Since they are on the same day, I have informed my wife that my birthday present is not having to buy an anniversary present.  You can imagine how well that went over.

October is also great because of Halloween and if you are curious, my kids have selected their costumes.  My daughter is dressing as unicorn.  I suggested a zombie unicorn, but was turned down.  My son Drew can’t make up his mind and wants to be a dog and a princess. I think he will be wearing his sister’s Cinderella dress with floppy dog ears.  My son Will wants to be a cucumber.  I am sure that costume will be easy to find…

There is a lot of asbestos news, including two upstate verdicts, and a tough appellate decision involving a NYCAL verdict that demonstrates the uphill battle defendants have at trial proving alternative exposures. 

In Erie County, a 60 year-old plaintiff living with mesothelioma was awarded $6.9 million against a valve manufacturer.  Right on the heels of that award there was a defense verdict (yay!) in Monroe County in which the jury determined that the manufacturer of asbestos vinyl floor tiles failed to provide an adequate warning, but the failure to warn was not a substantial factor in causing injury. 

I’d be remiss if I did not wish our friends north of the border a Happy Canadian Thanksgiving!  Happy Halloween to all and be safe with the little ones trick or treating.  And don’t come looking for candy on Begger’s Night, it’s not a thing.

And now for this month’s Halloween dad joke:

How does a witch stay in shape?

“Exorcise”

09/13/18          Idell v. Aerco International, et al.
Appellate Division, First Department
Defense effort to introduce alternative exposures through plaintiff’s expert is rejected. 

This appeal involved post-trial motions following an August 2017 verdict in New York County in which plaintiff was awarded $1.8 million for past, and $1.5 million for future pain and suffering.  The First Department, further hampering defendants’ ability in New York to introduce evidence of alternative exposures, upheld the trial court ruling that precluded the defendant from eliciting testimony from plaintiff's expert regarding exposure to asbestos in the alleged nonparty tortfeasors' products because the defendant failed to establish specific causation against such alleged nonparty tortfeasors.  Along the same lines, the court rejected the defendant's argument that General Obligations Law § 15–108 required that the settled defendants be included on the verdict sheet for apportionment purposes regardless of whether any evidence of their liability was presented, holding that failure to present a prima facie case of their liability constitutes a waiver of the non-settling tortfeasor's right to reduction of the verdict based on an apportionment of fault, but not based on the amount of the settlement. 

The First Department further held that the trial court properly charged the jury on the issue of recklessness. Based on the circumstances of this case, which include plaintiff's continued exposure to defendant's valves through 1986, there was sufficient evidence from which a jury could determine that defendant was aware that workers such as plaintiff were at risk from exposure to asbestos.

Lastly, the trial court properly directed a new trial on damages as to past pain and suffering unless defendant agrees to increase the award of $1.8 million to $4 million. However, it rejected the trial court’s order to increase the award for future pain and suffering to $2.5 million, finding that the jury's award for future pain and suffering of $1.5 million should be reinstated as such award did not deviate materially from reasonable compensation.

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

Dear Readers,
 
Well, the pool is finally closed.  Being pool n00bs, we committed one of the most egregious pool owner faux pas—waiting until the end of July to schedule our pool closing.  After being schooled on our foolish mistake, we were lumped in with the other 50 delinquents in our area whose pools would be closed just before the October cold snap.
 
Now that the summer has wound to a close, I, and three of my associate colleagues, have been hard at work on a new presentation called “Legal Basics for New Business Owners.” My contribution, if you hadn’t guessed already, is a primer on premises liability.  If you know a new business owner who would do well hearing the mantra of “diligence and documentation,” send them our way—we’ll be giving a crash course in the legal concepts every business owner should know on November 1^st at 6:00 PM at Wilcox Financial Group in Williamsville, New York.
 
This month’s case really illustrates the pay-off of diligence in property management.  Although the Court did not buy the defendant’s storm in progress argument, it did buy its argument on notice, partially because of the diligent maintenance and inspection proven on summary judgment.
 
07/19/18  Williams v. New York City Housing Authority
Appellate Division, First Department
*Case available upon request
The one with the prepared property manager!

Plaintiff, a pedestrian, slipped and fell on a patch of ice that formed on a walkway in front of defendant’s building.  The crux of plaintiff’s negligence argument was that the ice formed after snow piles on the premises melted and refroze without drawing the attention of the property owner.  On appeal, the First Department held that the storm in progress doctrine did not apply to preclude defendant’s liability, but nevertheless, that the property owner was not liable for the plaintiff’s injuries because it established that it lacked notice of the hazard.
 
First, the Court determined that the weather records provided did not support the application of the storm in progress doctrine.  Specifically, the Court found that the records showed that trace amounts of freezing rain stopped several hours before the subject-incident, and, had actually “tailed off to such an extent that there [was] no longer any appreciable accumulation” at the time.  

Second, the Court held that the defendant established that it lacked both actual and constructive notice of an icy condition without the plaintiff raising any triable issue of fact in return (despite producing the testimony of plaintiff’s daughter who claimed to have seen the icy condition).  Specifically, the Court pointed to the testimony of defendant’s employee as establishing lack of notice.  The employee testified that she was overseeing snow removal efforts on the date of the incident; that the location at-issue was salted and sanded three times during her shift; that she inspected the area at-issue herself, one hour before the incident occurred; and that she had not received any complaints about the area prior to plaintiff’s fall.  In response, plaintiff offered no evidence evincing actual knowledge or constructive knowledge of the condition—plaintiff herself testified that she had been in the area the day before, but did not see any ice and even after the subject-incident, could not describe or estimate the dimensions, shape, or thickness of the ice.   Plaintiff further produced the opinion of an expert who conceded that weather records showed that ice would not have been present in the area during the several days preceding the fall.  Indeed the records themselves showed that the temperature never rose above freezing in the days leading up to the incident (ruling out the refreeze theory) and was a mere 34 degrees less than one hour before the incident.  It was telling quite telling when plaintiff’s expert admitted that any precipitation that had fallen could not have melted (and then re-frozen) unless the concrete pavers it fell upon had been chemically treated. Ultimately, plaintiff failed to raise an issue of fact that the condition was visible and had existed for a sufficient length of time that defendant’s employees could have detected and remedied the condition.

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

The air has significantly cooled in the Adirondacks, and the foliage this year has been absolutely outstanding. For my money, nothing beats the deep reds!  There is just something about this time of the year for me, be it from driving and looking at the beautiful leaves to going for a run with a chill in the air to the excitement for the impending ski season.  Whiteface got its first snow this weekend!
 
It has been fun to watch our just over seven-month daughter while she rides in the car as she looks out the window more than she did just a few weeks before. While I know it is likely just her natural development, I like to think that she is enjoying nature’s colors as well!
 
-Jamey
 
September 25, 2018 - Polanco v. Bronx 360 Realty LLC
Appellate Division, First Department
Building owner and managers motions for summary judgment denied based on question of fact on failure to warn.

The building owner Bronx 360 and building manager T.U.C. Management Company, Inc., both defendants, moved for summary judgment following a personal injury accident. The Uplift Elevator Corporation, another defendant and the company performing work on the elevator in question, had moved for reargument of the original motion for summary judgment, opposing Bronx 360 and T.U.C. After reargument was granted, the Court reversed itself and denied the summary judgment motions of Bronx 360 and T.U.C.
 
The day the malfunctioning of the elevator occurred was the third consecutive day that Uplift was performing repairs to the elevator pursuant to its agreement with Bronx 360. The Court found that there were issues of fact as to whether Bronx 360 and T.U.C. breached their duty to warn of the dangerous condition on the premises posed by the elevator at this point since there was contradicting testimony by the defendants’ representatives and plaintiff as to whether any signs were posted about the elevator being out of order when the plaintiff entered the premises.
 
Practice tip: While it seems like a fairly simple thing to do, those that have control of an elevator—be it an elevator repair company, a land owner, or a manager of a building—should post signs indicating that an elevator is out of service if it is indeed out of service. An even better practice is to have whomever is in charge of this take photos of the elevator signs indicating that the elevator is out of service and keep a log with dates that the photos were taken. Your defense attorney will thank you in the future!
 
October 10, 2018 - Daconta v. Otis Elevator Company
Appellate Division, Second Department
Plaintiff’s mis-leveling elevator case dismissed on a motion for summary judgment; res ipsa not applicable.

Plaintiff entered an elevator at her work place and allegedly tripped, causing injury. Plaintiff alleged a mis-leveling of the elevator with the hallway landing. She brought an action solely against Otis Elevator Company, the company which had been retained to maintain and service the elevator (likely because the building was owned by her employer and Worker’s Compensation would preclude her ability to recover against her employer). The Supreme Court granted Otis’ motion for summary judgment and declined to impose sanctions on the defendant for spoliation of evidence.
 
The Court reviewed the applicable standard for an elevator company, noting that “an elevator company which agrees to maintain an elevator in safe operating condition may be liable to passengers for failure to correct conditions of which it had knowledge or failure to use reasonable care to discovery and correct a condition which it ought to have found.” The Court found that the defendant submitted evidence to establish its prima facie case that it did not have actual or constructive notice of this condition.
 
Plaintiff’s expert’s affidavit was found to be speculative, lacking in foundation and conclusory and failed to raise an issue of fact for the Court. The Court also denied the application of res ipsa loquitor as the plaintiff failed to demonstrate the accident was one that would occur without the absence of someone else’s negligence. The Court found also that spoliation sanctions were not applicable here as the plaintiff did not show defendant “intentionally or negligently disposed of critical evidence, and fatally compromised their ability to prove their case.”
 
Practice tip: While this case does not go into details of plaintiff’s application for this mis-leveling case, it is interesting to note that some courts will find mis-leveling cases to be res ipsa cases and some courts do not. From the defense perspective, it seems to be prudent to always address res ipsa in any elevator case, especially in a motion for summary judgment, even if you think the facts of the case make it unlikely to be applicable.

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

Greeting Subscribers!
 
Fall here in Western New York is one of my favorite seasons. With all of the changing colors, I am reminded of just how amazing Mother Nature truly is. It is another slow month of cases to report on, but   we have two discovery cases where the courts granted the defendants’ summary judgment motions to dismiss the complaints were the plaintiffs violated court orders in failing to timely serve discovery responses and proceed with depositions. Until next issue, enjoy fall and have a happy and safe Halloween!
 
Marc
 
09/28/18         Miller v Kendall
Appellate Division, Fourth Department
Property owners entitled to summary judgment where they lacked constructive notice of allegedly slippery condition

Plaintiff allegedly fell on a “slippery, wet and moss covered step” located on defendants’ premises. The trial court granted defendant’s motion for summary judgment. On appeal, the Fourth Department noted plaintiff abandoned any claims that defendants had actual notice of or created the dangerous condition. The Court unanimously affirmed the trial court’s decision as defendant submitted evidence that the defect was not visible and apparent, including a photograph of the steps taken forty-five minutes after the incident and the deposition testimony, which the Court held established that they did not have constructive notice of any alleged defect.
 
10/03/18          Pastore v Utilimaster Corp.
Appellate Division, Second Department
Plaintiffs’ failure to comply with court orders regarding discovery demands results in conditional order of dismissal of complaint

The trial court conditionally granted defendants’ motion, pursuant to CPLR § 3126, to dismiss the complaint based on plaintiff’s failure to comply with discovery demands and the court’s orders. The trial court thereafter denied plaintiff’s motion for leave to renew and reargue his opposition to defendants’ initial motion. The Second Department unanimously affirmed as plaintiff failed to even offer any explanation for their failure to comply with court-ordered discovery and defendants’ discovery demands.
 
As a result, the Court held the trial court providently exercised its discretion in conditionally granting defendants’ motion and directing dismissal unless plaintiff served outstanding responses by a date certain. Moreover, the Court affirmed denial of plaintiff’s motion to renew as the additional authorizations submitted did not comply with the court’s order since they were either inappropriately restricted as to subject matter or as to date and thus failed to authorize the release of plaintiff’s entire medical records. Therefore, the Court held the new evidence would not have changed the trial court’s decision to conditionally dismiss the complaint.
 
10/10/18          Rosenblatt v Franklin Hosp. Med. Ctr.
Appellate Division, Second Department
Plaintiffs’ willful and contumacious conduct leads to dismissal of complaint

Plaintiffs filed a medical malpractice action and defendant thereafter served a demand to prosecute. Plaintiffs moved to extent their time to file a note of issue, and the trial court granted Plaintiff’s motion and ordered them to appear by a specific date. After Plaintiff failed to appear on that date, the trial court granted defendant’s motion to dismiss the complaint pursuant to CPLR § 3126.
 
As Plaintiffs’ repeatedly failed to produce a supplemental bill of particulars, HIPAA-complaint authorizations, and to schedule depositions until defendant moved to dismiss the complaint, the Second Department held the trial court did not improvidently exercise its discretion in granting defendant’s motion to dismiss the complaint.

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