Premises Pointers - Volume II, No. 6



Premises Pointers
Watch your step!

Volume II, No. 6
Thursday, November 15, 2018
A Monthly Electronic Newsletter


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


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:  With fall in full swing (not sure how that happened because if feels like we were just heading to the beach), the Courts are once again very busy. And so are our attorneys here at Hurwitz & Fine. As mentioned below by Chris Potenza, attorney Pat Curran just wrapped up one trial in Monroe County and is now headed to Chautauqua County after Thanksgiving for his next one.  Pat heads our medical malpractice and nursing home liability practice groups so if you ever have a need in these areas Pat would be happy to assist. For Pat's bio, click here.
And speaking of Thanksgiving, Happy Thanksgiving to you and yours! Since I do not host dinner, I am charged with supplying the pies (6 in total) so I plan to undertake some serious baking in the upcoming week. To those of you also charged with baking, cooking, preparing… good luck! As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, click 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!





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

10/16/18          Stadler v. Lord & Taylor, LLC
Appellate Division, First Department
Suit against retailer withstood summary judgment
Plaintiff allegedly tripped on the leg of a clothing rack in Defendant’s store. In denying Defendant’s motion for summary judgment, the Court held Defendant failed to show that the leg of the clothing rack that caused the accident was open and obvious and not inherently dangerous as a matter of law. Plaintiff testified that she could only see two racks ahead of her as she pushed her way through clothes when she tripped on the leg from one of the racks and that she did not see it before she fell. Defendant further failed to meet its burden to establish that its employees did not cause or create the condition by placing the store’s clothing racks too close together with enough merchandise on them to make it difficult for customers such as Plaintiff to be able see the clothing rack’s leg sticking out into the aisle. 
10/17/18          Newisky v. United Artists Kaufman Astoria 14 Regal Cinemas
Appellate Division, Second Department
Defendant’s motion for summary judgment granted and Court determined res ipsa loquitor did not apply
Plaintiff allegedly sustained personal injuries while at Defendants’ movie theater. He and his wife arrived at the theater and began to look for seats approximately 15 minutes before the movie was scheduled to start. Plaintiff selected a seat and did not notice anything wrong with it prior to sitting down. Plaintiff alleged that he was injured when, as he was about to sit down, he applied some pressure to the seat cushion with his hand, at which point the cushion dislodged from the frame, causing him to fall into the seat. Defendants moved for summary judgment dismissing the complaint on the ground that they neither created nor had actual or constructive notice of the defective condition. Defendants further argued that the plaintiff was not entitled to rely upon the doctrine of res ipsa loquitur. The Supreme Court denied the Defendants’ motion. On appeal, the Appellate Division held the doctrine of res ipsa loquitur was not applicable because the evidence presented did not adequately exclude the chance that the seat had been damaged by someone other than the Defendants and determined that the Defendant’s motion for summary judgment dismissing the complaint should have been granted.
As a side note, the elements of res ipsa loquitor are: 1) the event does not occur without negligence on someone’s part; 2) the object was in defendant’s exclusive control: and 3) the plaintiff is free from negligence.
11/5/18            Bennett v. Target Corporation
United States District Court, Eastern District of New York
Lawsuit against Target removed from State Court to Federal Court resulted in battle of the experts – the winner is…
Plaintiff sued Target for injuries she allegedly sustained when she tripped and fell on a display platform known as a “base deck” while shopping at a Target store. Defendant moved to preclude the report and testimony of Plaintiff’s architectural expert and Plaintiff similarly moved to preclude Defendant’s expert. Defendant argued that Plaintiff’s expert lacked adequate qualifications to opine on biomechanical, anatomical, and medical issues. The Court however found that the expert was sufficiently qualified to serve as a retail design and safety expert and therefore possessed adequate knowledge, skill, and experience in this area to render an opinion. The Court did not view the opinions as “biomechanical” in nature. However, the Court did not conclude the expert was qualified to render opinions concerning the specific cause of the plaintiff’s injuries. These challenges in this regard should be raised at the time of trial or made on cross-examination.  Despite the motions, neither expert was precluded from the case.
11/7/18            Troina v. Canyon Donuts Jericho Turnpike, Inc.
Appellate Division, Second Department
Restaurant owner’s motion for summary judgment granted was by Supreme Court but reversed on appeal due to lack of proof of a prior inspection of the parking lot where plaintiff’s accident occurred
Plaintiff alleges that she tripped and fell when she caught her right foot under a tire/wheel stop in the parking lot of a Dunkin’ Donuts. The injured Plaintiff and her husband sued to recover damages, alleging negligent maintenance of the parking lot. The Supreme Court granted Defendants’ motion and Plaintiff’s appealed. On appeal, the Appellate Division ruled that Defendants failed to establish that they lacked constructive notice of the allegedly dangerous condition. They failed to submit evidence as to when, prior to the accident, the tire/wheel stop at issue was last inspected. 
11/7/18            Housen v. Boston Market Corporation
Appellate Division, Second Department
Plaintiff’s lawsuit against restaurant dismissed on procedural grounds
On July 21, 2010, Plaintiff allegedly sustained injuries when he slipped and fell in a Boston Market restaurant. On July 19, 2013, Plaintiff filed a summons with notice against, among others, Boston Market Corporation. Boston Market made a demand for a complaint, dated December 3, 2013, and the Plaintiff served a verified complaint on January 9, 2014. Boston Market moved pursuant to CPLR 3012(b) to dismiss the action for failure to serve the complaint within 20 days after service of the demand for a complaint. Plaintiff purportedly served a cross motion to compel acceptance of the complaint and an affirmation in opposition to Boston Market’s motion, but failed to properly file these papers with the Centralized Motion Part of the Supreme Court. As a result, by order entered September 26, 2014, the Supreme Court granted Boston Market’s motion on Plaintiff’s default and directed the dismissal of the complaint. Plaintiff appealed. The Appellate Division noted that Plaintiff’s motion to vacate the order entered September 26, 2014, on the ground of excusable default pursuant to CPLR 5015(a)(1), was untimely since it was not made within one year after a copy of the order was served upon him with notice of entry. Further, Plaintiff was not entitled to relief pursuant to CPLR 5015(a)(1) because he failed to demonstrate a reasonable excuse for his default and the Supreme Court did not have discretion to cure a potential defect in the order entered September 26, 2014, pursuant to CPLR 5019(a), as the alleged error affected the substantial rights of parties.
11/9/18            Stribing v. Bill Gray’s Inc.
Appellate Division, Fourth Department
Assault in parking lot did not give rise to respondeat superior liability because involved employee was not acting without the scope of his employment at time of incident
Plaintiff was allegedly injured as a result of an assault by Hartfield in the parking lot of a restaurant owned and operated by defendant Bill Gray’s Inc. Hartfield was Defendant’s employee and was at work on the day of the assault. Shortly before the assault, Hartfield’s shift was terminated by Defendant’s manager because Hartfield was engaged in a loud and disruptive cell phone conversation while working and was directed by Defendant’s manager to leave the premises. While in the parking lot, Hartfield continued her loud and disruptive cell phone conversation. Defendant’s manager sent an employee out to the parking lot to supervise the situation. Meanwhile, an unknown person had called 911 and sirens could be heard as police vehicles approached the restaurant. Plaintiff was seated in the outside dining area of the restaurant and signaled to Hartfield with what witnesses described as the “shush” sign. Hartfield responded by striking Plaintiff in the head from behind. Defendant’s summary judgment motion was granted and Plaintiff appealed. On appeal, the Appellate Division ruled that Defendant established as a matter of law that the doctrine of respondeat superior was inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer “vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment.”




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

It's mid-November and things are grand.  The Irish are undefeated and two wins from the NCAA college football national championship playoffs (I know, if they get there, Alabama might be a problem), roast turkey and pumpkin pie are within reach, the leaves in front of the house are raked (the backyard is not visible from the street and therefore doesn’t count, plus I’m going green and using the leaves as mulch on the landscaping beds--that’s my story and I’m sticking with it) and I’ve somehow managed to acquire 4-5 Christmas gifts for the family.  Admittedly, that’s more the result of happenstance than actual planning but small victories are still victories.
The stars aligned to make October musically memorable.  I managed to catch six shows from October 3 through October 30.  The Supersuckers, Bottle Rockets (with a cool opener in Sarah Borges), Social Distortion, Johnny Marr, Guided By Voices and The Breeders.  Had the schedule not been so full, there were a couple of other shows in there that I might have attended (Titus Andronicus, Restorations, Joy Formidable) but I’m only human.  Hands down by a mile, the Johnny Marr showed was the best of the bunch--absolutely spectacular and easily in my top ten shows from 30+ years of refusing to grow up.  A much more mellow set of tune wafting from the speakers this month--check out 2017’s Brutalism from English rockers Idles, the just released (last Friday) Electric Days from J. Mascis and Jason Isbell and the 400 Hundred Unit’s Live From the Ryman, a solid set made up of tracks from his last three releases. 
I take a look at three cases this month--two school district negligent supervision cases, one of which includes a constitutional due process claim, not something normally included in this type of case.  The third case takes a look at a municipality’s potential liability arising from its issuance of a permit to a landowner for a project that subsequently collapsed in to a creek bordering the property, causing flooding and other damage to a pair of nearby landowners.
Call or email with any questions, queries or suggestions--whether legal or music-related makes no difference to me.  Best wishes for a happy thanksgiving. 
November 7, 2018     Palopoli v. Sewanhaka Central High School District, et al.
Appellate Division, Second Department
Questions of fact regarding whether district had notice of the aggressor had a history of prior violent acts and its response to the fight precluded school district’s motion for summary judgment in school fight case.
Palopoli was a high school student who, after boarding his bus at the end of the day, verbally objected to being pushed by Torres, another student on the bus.  Torres responded by attacking Palopoli and the resulting brawl allegedly continuing unchecked for six minutes.  Palopoli was beaten unconscious and DiMatteo, a student not involved in the fight, sustaining head injuries as a result of being struck several times during the fight.  The bus driver exited the bus when the fight began and a security aide came on board but did not intervene, instead radioing for assistance, bringing three more security aides to the bus.  Witnesses testified that the aides were on the bus for upwards of three minutes but did not attempt to break up the fight, and that Torres only stopped his assault after Palopoli was unconscious.  Both Palopoli and DiMatteo sued the district and its bus company.
The Appellate Division overturned the lower court’s order granting the district and its bus company summary judgment, finding a question of fact on two separate grounds.  Not surprisingly, the court found deposition testimony of an assistant principal that that Torres had a disciplinary history, she could not recall if that included violent acts insufficient to establish a prima facie case that the district lacked specific notice or knowledge of Torres’ “propensity to engage in the misconduct alleged.”
The court rejected the district’s argument that the fight was a spontaneous and unforeseen act that it could not have reasonably prevented.  The question was not that the start of the fight was spontaneous and unpreventable, but rather the adequacy of the district personnel’s response to the fight, which was alleged to have gone on for at least several minutes after security aides boarded the bus but did not physically attempt to stop the assault. The court found a question of fact on whether both plaintiffs’ injuries were a foreseeable result of the alleged failure to stop the fight, citing to case law holding that the district’s security aides had an obligation to take “energetic steps to intervene.”  The allegations that the security aides allowed the assault to continue unabated for several minutes cannot be squared with the district’s claim that it had no opportunity to act to prevent the plaintiffs’ injuries.
October 31, 2018       Deb B. v. Longwood Central School District, et al.
Appellate Division, Second Department
School district granted summary judgment dismissing special education student’s action alleging negligent supervision and a violation of her constitutional due process rights.
Plaintiff Deb B. was a special education student at the district’s high school.  Upon arriving at school one morning, she accompanied JG, another special education student, whom she knew, out of the building to a set of bleachers that was part of the school’s athletic facilities.  While at the bleachers, plaintiff was allegedly sexually assaulted by JG.
The trial court denied the district’s summary judgment motion and the district appealed. The Appellate Division found that the district had established a prima facie case that it had not negligently supervised the students where:

  • Plaintiff’s IEP did not call for her to have an one on one aide or to be escorted from the bus into the school building or while in the building;
  • Plaintiff’s mother testified that she was both aware that her daughter was not escorted while on school property and had no expectation she would be escorted;
  • Plaintiff had no history of leaving the school buildings while at school;
  • Plaintiff did not allege that JG had any propensity to engage in such behavior;
  • Plaintiff did not allege that the district knew or should have known that JG had any propensity to engage in the type of behavior at issue.

IEP’s, especially for special education students are highly tailored to each student’s specific needs.  That the IEP did not require a greater level of supervision that what was provided, coupled with the fact that plaintiff’s history had not shown a need to provide additional attention was key for the district.  Obviously any suggestion that plaintiff might have been to blame would be improper – I read the court’s attention to the plaintiff’s lack of any history of improperly leaving the school building solely as a factor in assessing the district’s potential awareness of the of the need for additional supervision.
The question of a defendant’s knowledge of perpetrator’s propensity to engage in similar conduct is usually addressed through the testimony of school personnel and the alleged offender’s prior record.  Here the court makes specific notice of the fact that both the plaintiffs’ complaint and Bill of Particulars made no claim that the alleged assailant had a propensity to engage in the type of behavior at issue or that the district knew or should have known about any such propensity.
Plaintiffs’ complaint also alleged that the district violated her constitutional rights under 42 USC §1983.  The court, without any substantive explanation, found that the district had established that no such violation occurred.  The case law cited by the court for this determination does provide some context – the right to a public education is not a substantive right guaranteed by the Fourteenth Amendment, although proof of a “special relationship” or injuries resulting from a “state created danger” can support a claim that due process rights were violated. The alleged failure to protect a person from attack or assault by a private actor is not a constitutional violation. A “special relationship” is created when the state actor has, through “imprisonment, institutionalization, or other similar restraint of personal liberty” limited the allegedly aggrieved person’s freedom to act.  A state actor creates an actionable danger when it either assisted in creating the alleged danger the injured party faced from a private, third party actor or made the injured party more vulnerable to the risk of harm.  Neither of those exceptions are met in this case – the district’s custody of the plaintiff during the school day, including the level of supervision required by the plaintiff’s IEP did not put any limitations on plaintiff that lead to her harm, nor did the district create the peril faced by plaintiff on the date of the assault or somehow make her more vulnerable to that peril. 
It is also important to note that the question of a violation of constitutional rights is a wholly separate determination from the viability of any state law claims an allegedly injured party may pursue.  While the same facts may be relevant to each determination, the lack of a constitutional violation in this case had no bearing or relevance to the court’s assessment of the plaintiff’s New York common lack of supervision claim discussed above and a contrary finding on the district’s motion for summary judgment on those claims would not have changed the court’s determination that plaintiff’s constitutional due process rights were not violated.
October 18, 2018       City of Albany v. Normanskill Creek, LLC, et al.
Appellate Division, Third Department
Lack of a special duty owed to the plaintiffs precluded liability against the Town for its alleged failures in issuing a permit to a private landowner.  Town not liable under a claim for trespass where it was not affirmatively involved in any act causing the alleged incursion.
Several weeks after its placement, fill placed on the Normanskill Creek Golf Course collapsed into Normans Kill Creek, damming the creek and flooding nearby property owned by Szydlowski and a golf course owned by the City of Albany, located on the other side of the formerly free flowing creek.  Normanskill Creek did not obtain the necessary permits from the Town of Bethlehem before installing the fill.  After several weeks, the Town notified Normanskill Creek of the permit requirement and a permit was eventually issued.
After the slide and resulting flooding, Szydlowski and the City of Albany both sued the Normanskill Creek and the Town of Bethlehem for the damage to their respective properties.  These two decisions address the claims against the Town of Bethlehem only.
In both cases, the negligence claims against the Town were dismissed.  In order for a municipal entity to be held liable for the negligent performance of its governmental functions, there must be a showing of a special duty owed to the injured party beyond that owed to the general public.  A special duty can arise from three circumstances:

  1. The violation of a statutory obligation enacted for a particular class of persons of which the injured party is a member.That statutory obligation must also authorize a private right of action by an allegedly injured party;
  2. The voluntary assumption of a duty that causes a justifiable reliance, to their detriment, by the allegedly injure party; or
  3. The assumption of “positive direction and control in the face of a known, blatant and dangerous safety violation.” This requires the municipal entity to affirmative action that either placed the injured party in harm’s way or induced the injured party to embark on dangerous or harmful course of action that was otherwise avoidable.

In this case, the mere issuance of a permit does not meet any of these circumstances.  Any permit requirement was not enacted for the specific benefit of either plaintiff, and the Town undertook no action that was intended to benefit or caused either plaintiff to take any action based upon the Town’s action.  In fact, there was no proof of any contact between either plaintiff and the Town or Normanskill Creek about the placement of the fill.  Finally, the Town of Bethlehem at no time took any control of the fill project – its only action was the issuance of the permit.
The suit by the City of Albany also contained a trespass cause of action.  Trespass is based upon an injury to the owner’s right to possess and use its property and requires the intentional entry onto the land of another that results in immediate or inevitable harm.  The City claimed that the Town issued the permit knowing that there had been other landslides in proximity to the Normanskill Creek property and that it had failed to adequately supervise the work done pursuant to the permit.   Land use regulation does not create municipal liability for trespass absent affirmative involvement in an “approved” project – here, there was no allegation or proof that the Town was engaged in any of the work at the Normanskill Creek property.




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

November is here and I cannot get the Grateful Dead’s “Cold Rain and Snow” out of my head.  Maybe it’s because fall skipped right past us, and we have had days and days of cold wet rain, sleet, and snow.  But this is a time of thanks, so I should not dwell on the weather.  There is a lot to be thankful for, including my happy and healthy family. I am also thankful for all the hard work and dedication of the entire Hurwitz & Fine team.  Practicing law can be stressful and has its unique challenges, but it is made easier when you are surrounded by a group focused on good client service and achieving the best possible results for our clients.  I would also like to extend my thanks and kudos in particular to our own Pat Curran for restoring my faith in the jury system.  Pat obtained an excellent verdict in a nursing home neglect case that lasted over three weeks, in which plaintiff’s counsel was allowed to make outrageous and unsupported claims of fraud and misconduct to the jury in seeking millions in punitive damages.  Pat was able to tell the story of the caregivers and obtained a very modest compensatory damages verdict (less than half the settlement offer), much to the chagrin of the overzealous plaintiff’s attorney who spent well over six figures on out-town experts, focus groups, and jury consultants.  It’s nice to see credibility prevail. 

And now for this month’s Thanksgiving dad joke:

What happens to Pilgrims in the sun?

“They get Puri-tan”

Just one toxic tort case to discuss this month detailing an apartment owner’s failed attempt to pass the duty to abate lead paint onto its lessee.

10/24/18          N.A v. Hillcrest Owners Association Inc., et al.
Appellate Division, Second Department
Apartment owner cannot pass duty to abate lead paint to lessee through indemnity provision in lease.
The infant plaintiff allegedly ingested lead paint chips from the walls of the apartment where she lived with her mother. The owner, defendant third-party plaintiff, Hillcrest Owners Association, sought contractual indemnification against the third-party defendant lease holder. 

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27–2013(h) (Local Law No. 1 [1982] of the City of New York) placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased premises where children under the specified age resided.   Contrary to the third-party defendant’s contention, the fact that Local Law 1 imposed a nondelegable duty on Hillcrest to abate the lead paint hazard does not mean that Hillcrest is precluded from recovering in indemnity, either contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed to the infant plaintiff's injuries.   However, under the circumstances presented, Hillcrest may not seek contractual indemnification from the lease holder based on the indemnification provision contained in the proprietary lease. A broad indemnification provision in a lease which is not limited to the lessee's acts or omissions, fails to make exceptions for the lessor's own negligence, and does not limit the lessor's recovery under the lessee's indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5–321.  As such, the contractual indemnification claim against the third-party defendant lease holder should have been dismissed. 
Happy Thanksgiving!




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

Dear Readers,
It seems that October and November have whipped by at a whirlwind pace.  It wasn’t that long ago that we were preparing for our first Halloween in suburbia by making a panicked, last minute trip to Wegmans to purchase “just a few” extra bags of candy for the hordes of children sure to storm our neighborhood.  Long story short, we are STILL eating left over candy as Thanksgiving swiftly approaches.
There are many things to be grateful for this year—the improved health and healing experienced by family members, the purchasing of a new home, and, in light of all the candy, affordable dental insurance.  Have a Happy Thanksgiving—before you know it, we will be on to the airing of grievances and feats of strength!

October 31, 2018     Cayetano v. Port Authority of New York and New Jersey
Appellate Division, Second Department
*Decision available upon request*
The one where a deficient pleadings paves the way to later victory!  
Plaintiffs, employees of American Eagle Airlines, Inc., brought a personal injury lawsuit after they slipped and fell on a patch of ice that formed near a gate at LaGuardia airport.  Amongst the defendants named in the Complaint was CTE Incorporated, a snow plow contractor that had entered into an “On-Call Services” agreement to provide snow and ice removal for American.  Specifically, the agreement required it to perform snow and ice removal at American’s request.
It is well established in the state of New York that “a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” unless (1) the contracting party “in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm;” (2) the plaintiff detrimentally relied upon the continued performance of the contracting party’s duties; and (3) the contracting party entirely displaced the other party’s duty to maintain the premises in a reasonably safe condition (the Espinal exceptions).
In light of its limited contractual obligation to provide snow and ice removal on the premises in question, CTE moved for judgment as a matter of law, which the trial court denied.  On appeal, the Second Department found that CTE had indeed demonstrated its entitlement to judgment as a matter of law because it offered sufficient evidence that it owed no duty to plaintiffs since they were not parties to the “On-Call Services” agreement.  More importantly, the Court determined that, because the pleadings failed to set forth allegations supporting an Espinal exception, CTE was not obligated on motion to affirmatively rule out the Espinal exceptions to demonstrate its entitlement to summary judgment.
Ultimately, it was determined that plaintiffs did not raise a triable issue of fact in response to CTE’s motion—CTE was required to provide snow and ice removal at American’s request; the evidence submitted revealed that CTE performed its services on December 14, 2013 and December 15, 2013 following requests from American.  Despite the fact that it snowed against on December 17, 2013, one day before the subject-incident, there was no evidence that American requested CTE perform its snow removal services on that date.  In light of this, plaintiffs failed to raise a question of fact as to whether CTE launched a force or instrument of harm by creating and/or exacerbating an already dangerous condition. Similarly, plaintiffs failed to raise an issue of fact as to whether plaintiffs detrimentally relied on CTE’s continued performance of its contractual duties.




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

Brief intro this month. Actually, I will simply reference the ongoing debate I have with my wife. When is it appropriate to start playing Christmas carols? She believes it is okay the first day of November, and I believe that nothing should happen until Thanksgiving is in the rearview mirror. This is likely because Thanksgiving is my favorite holiday. Something about running a race in the morning, eating bunches of turkey in the afternoon and falling asleep in the early evening with football on the television and family around. Works for me!


October 29, 2018    Bagdassarian v. 4 NYP Ventures, LLC
Supreme Court, New York County
Failure of former property manager’s submission for summary judgment insufficient.
Plaintiff allegedly suffered injuries when she tripped and fell due to a mis-leveled elevator in the lobby of a building located in Manhattan. The defendant Heinz Interest Limited Partnership, undisputedly the former property manager for the building, moved for summary judgment.

Defendant Heinz argues that, because it had been replaced by a different management company five months prior to the plaintiff’s accident, it could not have had actual or constructive notice of the alleged defect. Based on the Court’s Order, it appears as though simply an attorney affirmation was submitted in support of this motion. The Court found that there was no evidence, such as an affidavit or a deposition transcript from someone with personal knowledge, to support its assertion that it did not receive any complaints about this defect. The Court found it failed to meet its prima facie burden for summary judgment that it did not have any actual or constructive notice of the defect and simply because it was not the property manager for five months prior to the accident did not absolve defendant of liability on its own.

Practice Tip: Always submit an affidavit with personal knowledge of a party if there is any question one might be needed.

October 24, 2018   Krsniqi v. Korpenn, LLC, et al
Supreme Court, New York County
Defendants K-Mart and Schindler Elevator denied summary judgment.
Plaintiff claims that he found two escalators not working in a K-Mart store. He complained to a worker and asked why no signs were present and why people were ascending and descending the escalator by walking and claims he received no response. As the plaintiff reached the tenth step, he felt the handrail and step shake. He maintains the steps were shaking up and down and he felt the escalator move. He testified that he could not grasp the handrail, and he fell to the bottom of the escalator face down on the left side of his body. The accident occurred on January 10, 2011.

An expert affidavit from the plaintiff’s expert indicated that it was more probable that Schindler’s mechanics, who were working on the escalator at the time, improperly restarted the escalator or “jogged the escalator,” a common occurrence if work is being performed on a stopped escalator which causes an escalator to shake. Since they were working on this at the time of the accident, plaintiff’s expert opined that this was exclusively under the control of the escalator repair mechanics. This was averred to even though Schindler’s mechanics were working on the adjacent escalator. Indications that there was a handrail drive problem indicated to the plaintiff’s expert that it was likely escalator jerking also would occur in the manner described by the plaintiff. The defendants provided an expert affidavit which indicated that, since no one else was on the escalator at the time in which plaintiff was descending, there was no weight to provide a force which could cause the escalator to move or shake. The defendants’ expert indicated the escalator adjacent to the subject escalator functions independently, and it was shut down and could not have caused the subject escalator to move or shake. The only way that the escalator could be restarted is for the key to be turned and to be held in the up or down position while the start button is activated simultaneously. If an escalator was to start on its own, it would require the failure of two key switches and a separate start button.

K-Mart moved for summary judgment indicating it did not have actual or constructive notice of the condition on the escalator. K-Mart had hired Schindler to repair the subject escalator. The Court noted a number of issues with the escalator, including with the handrail drive and the escalator not working and being required to be shut down in the month or so prior to the plaintiff’s accident. The Court found it was unclear if the K-Mart Corporation was properly maintaining the subject escalator prior to and at the time of the plaintiff’s accident, and there was no indication from K-Mart who was responsible for monitoring and alerting of problems to Schindler or what practices were in place by K-Mart to check and inspect escalators to determine if they should be returned to a functioning manner. The Court found that K-Mart Corporation potentially had constructive notice of the problem which may have caused or contributed to the plaintiff’s accident as some work was listed on the escalator as “undisclosed” without explanation. Summary judgment in K-Mart’s favor was denied.

The defendant escalator repair company, Schindler, moved for an Order granting summary judgment arguing plaintiff had failed to demonstrate the existence of a dangerous condition which proximally caused plaintiff’s fall, any evidence that Schindler was negligent or that the subject escalator was dangerous or defective at the time of plaintiff’s fall. The plaintiff argued that there were triable issues of fact as to whether Schindler had control of the starting and stopping of the escalator at the time of the accident, noted that the escalator had significant breakdowns for two years prior to the plaintiff’s accident and had been in and out of service and under active repair six days before the accident. Plaintiff also noted the breakdowns of the escalator included stopping, the inability to restart and “jumping” while in motion. Res ipsa loquitor was also alleged. The Court found that there was a dispute between the two expert affidavits as both affidavits included non-conclusory language in their findings. For instance, the defendant’s affidavit indicated it was “highly unlikely for the escalator to start without the insertion of a key” and “more probable” was utilized in the plaintiff’s expert affidavit. The Court found that Schindler failed to meet its burden and make a prima facie showing of entitlement to summary judgment, denying their motion. It should be noted that the two experts in this case, Patrick Carrajat and John Halpern, are both highly-experienced elevator and escalator repair experts and are frequently found on opposing sides in cases such as these.




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

Greeting Subscribers!
Although the UB Bulls football team lost for only the second time this season last night, the Bills dominated the Jets last week (with a quarterback we signed off the streets) to enable us Western New Yorkers to talk just a little smack to our downstate colleagues! This month, I report on some discovery cases that highlight the risks associated with failing to comply with courts order regarding discovery responses and depositions.

Until next issue, enjoy what is left off fall and Happy Thanksgiving.

10/23/18          Sanchez v Morris Ave. Equities Corp.
Appellate Division, First Department
Property owners not entitled to summary judgment where issues of fact exist about whether gate to alleyway was maintained in a reasonably safe condition in light of the neighborhood’s susceptibility to incidents of violent crime and if there was sufficient lighting
Tenant brought action against landlord after an assault occurred in a gated alleyway leading to the boiler room of the building. The trial court denied defendant’s motion for summary judgment dismissing the complaint. The First Department unanimously affirmed, finding several issues of fact. As relevant here, however, the Court rejected plaintiff’s alternative theory that defendant was liable to the extent that it voluntarily provided a locked gate, lighting, or video monitoring for the alleyway, and then negligently failed to maintain them.
10/31/18          McIntosh v New York City Partnership Development Fund Company, Inc.
Appellate Division, Second Department
Plaintiffs’ failure to comply with court orders regarding discovery demands in a prior conditional order of preclusion results in dismissal of complaint
The trial court granted defendant and third-party defendant’s motions to dismiss the complaint based upon plaintiff’s failure to comply with a conditional order of preclusion. “To be relieved of the adverse impact of the conditional order of preclusion, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious claim.”
As plaintiff conceded they did not respond to defendant’s discovery demands, the Second Department affirmed the trial court’s determination that plaintiff failed to comply with the conditional order of preclusion. “Therefore, the conditional order became absolute, precluding the plaintiff from offering evidence of damages at trial.” The Court further held plaintiff did not meet their burden to avoid the adverse effect of the conditional order of preclusion as they did not “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious claim.”
11/14/18          Sepulveda v 101 Woodruff Ave. Owner, LLC
Appellate Division, Second Department
“The fact that a defendant has disappeared or made himself or herself unavailable is not a basis for denying a motion to strike his or her answer for failure to appear at a deposition”
The trial court denied the property owner and managing agent’s (together the defendants) motion to review and vacate its prior order conditionally striking the answer of defendant Baez, the building superintendent at the time plaintiff was allegedly attacked by two dogs on the ground floor of the building. Plaintiff moved to strike Baez’s answer four times for failing to appear at his deposition, and the trial court ultimately granted the motion unless Baez appeared at a date certain, which, of course, he failed to do.
The Second Department affirmed the striking of Baez’s answer, finding defendants failed to demonstrate a reasonable excuse for Baez’s failure to appear for his deposition because their counsel’s assertions that they were unable to locate Baez and thus could not produce him was inadequate to excuse his condition. Consequently, the Court did not determine the issue of whether they defendants established the existence of a potentially meritorious defense.




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