Premises Pointers - Volume II, No. 7


Premises Pointers
Watch your step!

Volume II, No. 7
Monday, December 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.


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:  It is hard to believe 2018 is just about in the books.  I’m often surprised at how December creeps up and then speeds by in no time.  Last week, we celebrated our annual Hurwitz & Fine Holiday Party.  This year it was held at the Admiral Room at the Marin Building in downtown Buffalo.  What a lovely location for a gathering!  We celebrated the event with all of our attorneys and staff members from near and far and their significant others.  It is always a wonderful opportunity to spend quality time with co-workers outside the office and away from the demands of a busy law firm.
On behalf of the entire Premises Pointers Team, Happy Holidays to you and your teams!  Hopefully, you are all taking a few days off to spend time with your families, reflect on 2018 and get ready for 2019.  We look forward to hearing from you in the new year and welcome your questions and comments about our favorite topic...premises liability of course.
This month our retail offerings are well and appropriately represented (it is the holiday shopping season) and include cases against Hollister, Old Navy, Walmart and Home Depot.  And once again the “perils” of shopping are highlighted (a clothing display table – really?).  Nevertheless, there is no shortage of injuries at your local malls and shopping centers… 

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 you 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]

11/7/18            Khan v. Old Navy
Appellate Division, Second Department
Defendant’s motion for summary judgment should have been granted where plaintiff failed to comply with a conditional order of dismissal requiring plaintiff to produce medical authorizations.
In 2012, the plaintiff allegedly was injured due to the negligence of the defendant when a clothing rack fell on his head in the defendant’s store. On June 1, 2016, the parties entered into a stipulation, so-ordered by the Supreme Court, directing the plaintiff, within 21 days of the stipulation, to provide the defendant with authorizations and records pertaining to a prior accident that took place on August 9, 2008.  The plaintiff failed to comply with this directive.  The defendant moved for summary judgment dismissing the complaint based on the plaintiff’s failure to comply with the so-ordered stipulation, asserting that it was entitled to such relief because the plaintiff was precluded from offering any evidence as to liability and damages.  Plaintiff opposed.  The Court conditionally granted the defendant’s motion for summary judgment dismissing the complaint unless the plaintiff provided an authorization for all medical treatment pertaining to the 2008 accident within seven days after service of the order with notice of entry, and conditionally granted that branch of the plaintiff’s cross motion which was, in effect, for summary judgment on the issue of liability unless the defendant produced a qualified representative to appear for a deposition within 30 days of the date of the order. The defendant appealed.  The plaintiff failed to provide the authorizations and records pertaining to his 2008 accident within the time limit set in the so-ordered stipulation dated June 1, 2016. Therefore, the stipulation, which functioned as a conditional order of preclusion, became absolute.  To avoid the adverse impact of the stipulation, the plaintiff was required to demonstrate a reasonable excuse for his failure to comply with its terms and a potentially meritorious cause of action.  The plaintiff failed to make such a showing. Since the stipulation prevents the plaintiff from establishing a prima facie case, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.
11/28/18          Fox v. Patriot Saloon
Appellate Division, Second Department
An out of possession landlord granted summary judgment in slip and fall case involving defective staircase claim.
The plaintiff allegedly sustained damages when he tripped and fell on a defective stair of a stairway located between floors of a bar and restaurant operated by the defendant Patriot Saloon.  According to the plaintiff, the stair was uneven and had pieces missing, and there was no handrail on the right side of the stairway located on premises in Manhattan owned by the defendant Estate of William Stone. The Supreme Court granted the Estate’s motion, and the plaintiff appeals.  The Appellate Division reiterated that “an out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a “duty imposed by statute or assumed by contract or a course of conduct.”  The complaint at issue was based on common-law negligence and did not allege the violation of a statute, therefore the Estate demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by establishing that it was an out-of-possession landlord which was not bound by contract or course of conduct to maintain the premises.  In opposition, the plaintiff argued that the Estate violated the Administrative Code of the City of New York, but this was not set forth in his complaint or bill of particulars and, therefore, was improperly raised for the first time in opposition to the defendant’s motion.
12/5/18            Elfassi v. Hollister Co.
Appellate Division, Second Department
Beware of clothing display table – it was NOT deemed open and obvious and therefore store owner’s summary judgment motion was denied.
While shopping in the defendants’ clothing store, the plaintiff was allegedly injured when he struck his shin and fell over a short table located near a clothing display.  The defendants moved for summary judgment dismissing the complaint arguing the presence of the table was open and obvious and that the plaintiff was injured because he chose a path that was not intended for ingress/egress. The plaintiff testified that he did not see the table before he fell because the store was dark, and the smaller table was obscured or hidden by a taller, larger table near it. The Supreme Court granted the motion, and the plaintiff appealed.  The Appellate Division determined the defendants failed to establish that the table at issue was open and obvious and not dangerous given the surrounding circumstances at the time of the accident, including the evidence submitted by the defendants on their motion as to the lighting conditions and the presence of other customers in the area.  It was determined that there were triable issue of fact as to whether the space on the side of the table on which the plaintiff was injured could be anticipated as an area of egress by the plaintiff. Since the defendants failed to meet their initial burden as the movants, their motion was denied.
12/7/18            Gisser v. Wal-Mart Stores
United States District Court, Southern District of New York
Plaintiff’s slip and fall lawsuit dismissed against Walmart because Plaintiff, who had the burden on summary judgment, was unable to demonstrate notice to Walmart of the condition.
Plaintiff alleges that she slipped and while she did not fall to the floor, her right foot turned and hit the floor. Plaintiff held onto the shopping cart and pulled herself upright.  After she regained her balance, Plaintiff ran her foot over the floor where she slipped and bent at the waist to examine the area.  Plaintiff observed a “glob of white solution” that looked like cream, lotion, or conditioner on the floor that was approximately the size of an apple and smeared on the floor from Plaintiff’s slip.  While New York law governs the substantive slip-and-fall claim, federal law applies to procedural aspects of the claim. The federal burden of proof on a motion for summary judgment differs from the corresponding standard under New York law in a slip-and-fall action.  The Court found that the Plaintiff did not raise a triable issue of fact as to whether the condition was visible and apparent. First, the surveillance video of the area where the Accident occurred does not show the white solution on the floor.  Second, in the thirty minutes prior to the Accident, the video depicts six individuals walking directly through the area of the Accident without incident and without seeming to notice the “white solution” on the floor.  Third, two more individuals walked through the area immediately after the Accident without noticing anything on the floor.  Finally, Plaintiff did not see the substance on the floor prior to the Accident, nor did she offer any evidence that others observed the “white solution” prior to her slip. Since Plaintiff offered no evidence that she, or anyone, saw the solution on the floor, she failed to establish a triable dispute as to whether the solution was visible and apparent such that Defendant should have seen it.  The court went on to state that “Assuming arguendo that the [substance] was visible and apparent, there is no evidence as to when the [substance] was spilled on the floor, and plaintiff’s failure to offer such evidence is fatal to her claim of constructive notice.”  Accordingly, the Court held that even if Plaintiff could show that the substance was visible and apparent, Plaintiff failed to establish that the substance was on the floor for a sufficient length of time to allow the Defendant to discover and remedy it.
12/12/18          Rooney v. Garberg
Appellate Division, Second Department
Strict product liability action against Home Depot dismissed based on proof that Home Depot was outside the manufacturing, distribution and selling chain.
The plaintiff claimed injuries when she fell from an allegedly defective articulating ladder at a marina. The defendant Garberg owned the ladder, and the defendant Home Depot U.S.A., Inc. sold the ladder.  Home Depot moved for summary judgment dismissing the complaint based on an affidavit executed by Garberg in which he recalled purchasing the [subject] ladder sometime between 1994 and1998, from the Home Depot store at 2970 Cropsey Avenue, Brooklyn, New York.  Home Depot also submitted evidence establishing that the Cropsey Avenue location did not open until December 20, 2001. In response to this proof, opposition, Garberg submitted another affidavit in which he stated that the purchase date “was an estimate; that I purchased it from a Home Depot store is unequivocal. If the Crospey Avenue Home Depot did not open until 2001, I either purchased the ladder after the opening date of that store, OR possibly purchased it from the Hamilton Avenue Home Depot where I shopped prior. Regardless of the date of purchase, however, it was purchased at the Home Depot store.” The record lacked any other evidence as to when and where Garberg purchased the allegedly defective ladder. The Supreme Court denied Home Depot’s motion, and Home Depot appealed.   The Appellate Division reversed finding that Home Depot established its prima facie entitlement to judgment as a matter of law by demonstrating that it was outside the manufacturing, selling, or distribution chain.  Garberg’s second affidavit, submitted after the close of discovery and which contradicted his earlier affidavit, was seen as a weak attempt to avoid summary judgment.

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

Families change over time and mine in no different.  My family is from western New York, making the local holidays a mix of my parents, siblings and spouses and 10 grandchildren/nieces & nephews/cousins.  My wife’s family, although more spread out, is no different.  And the kids are not so little anymore--they range in age from 12 to 26--the oldest works full time (gasp), 6 are in college or grad school and two of my brother’s kids bring fiancés to the table this year.  Not a whole lot of Legos and dolls under the tree anymore. Besides the fiancés, for the first time, several of the older kids are also grappling with making holiday plans fit into limited vacation time at work--welcome to adulthood, kiddos. 
Instead of new records or humble bragging about shows attended, let’s talk about holiday music--the classics, the velvety Bing Crosby and Connie Francis offerings, will always be with us, but how about shaking up the tree with some guitars, drums and other assorted clatter. Rock’s contribution to holiday music is surprisingly deep, a mix of reinterpreted classics and originals.  Search “rock Christmas records” on Amazon and you’ll find full records from Cheap Trick, Lynyrnd Skynyrd, The Old 97’s, James Brown, Eric Clapton, Weezer, REO Speedwagon, Aloe Blacc, Rodney Crowell, Gwen Stephanie, John Legend, and Blake Shelton to just name a few.   Compilation records, often made up of a mix of standards and originals, abound.  And I’m happy to report, punk rockers really, really like Christmas songs, barreling through the proven catalogue and crafting new songs at a prodigious pace. 
My go to record for the classics is Bad Religion’s 2013 Christmas Songs.  What’s not to like--8 chestnuts (plus one original), played at 100 mph--the longest carol clocks in at a robust 2 minutes and 7 seconds.  Don’t let the punk label fool you--it's great fun and suitable for all ages (and if you don’t like it, you’re only out 20 minutes). The Fleshtones’ Stocking Stuffer is a blast.  Compilations that are merrily crunchy and a bit noisy at times include Little Steven’s Underground Garage Presents Christmas a Go-Go, A Blackheart Christmas and Merry Flippin’ Christmas. 
Hair metal fans will love Twisted Sister’s A Twisted Christmas.  Blues fans will love The Alligator Records Christmas Collection.  If William Shatner is your thing, you’ll love Shatner Christmas (I promise not to judge) while those pinning for the 1980’s will sing along with songs on the aptly titled The Classic ‘80’s Christmas Album. Not to be left out, back in 2008, Snoop Dog found time to create the epic 20 track compilation Christmas in the Dogghouse.   There are even two records separate records bearing the title A Southern Rock Christmas – 3 guesses on the target audience there.    
If nothing else, it seems pretty clear that if you can’t find something to bring some holiday cheer to your ears, you aren’t trying.  To share the joy, I put together a holiday playlist on Spotify entitled TCB’s Christmas 2018.  Have fun.
Happy holidays to you and yours.  Todd
November 8, 2018     Gibbs v. City of New York, et al.
New York Supreme Court – Kings County
Late Notice of Claim and Prejudice:  (1) An incident report stating only that plaintiff fell, with no description of what caused the fall did not give notice to the City of the relevant underlying facts and circumstances.  (2) Transitory nature of the alleged hazard, standing alone, was not enough to establish a lack of prejudice.
Plaintiff slipped and fell on an allegedly wet floor at a City owned school and claimed a then leaking water fountain was the source of the liquid.  Approximately 7 months after she fell, and 4 months after the 90 day period to file a notice expired, plaintiff sought permission to file a late notice of claim.  Whether the passage of time caused undue prejudice to the City was the focus of two inquiries.  The first was whether the incident report prepared after the fall, which only stated that the plaintiff fell, gave notice to the City of the relevant underlying facts and circumstances.  The absence of any information in the report about what had caused plaintiff to fall or what the source of any hazard led the court to hold that the report did not serve to give the City the requisite (and timely) notice. 
Petitioner’s second argument was that the condition complained of (i.e. the leaking fountain and water on the floor) was so transient that even if the notice had been timely filed the City likely would not have been able to investigate and therefore the delay in filing had not caused any additional prejudice.    This argument was rejected, with the court citing to several appellate decisions holding that the transitory nature of a condition, alone, cannot overcome prejudice to a putative defendant.  Other decisions addressing this issue state prejudice caused by an inability to investigate the now extinct condition might be overcome through information gleaned from secondary sources - photographs or video, witness interviews, repair or maintenance records, etc. 
That the potential prejudice caused by the inability to investigate a bygone condition is not a consideration for claims filed within 90 days reflects a determination by the state legislature that, for at least the first 90 days following the incident, the right of the injured party to bring a claim trumps the potential defendant’s ability to investigate and secure some sort of understanding of what may have transpired.
November 14, 2018   K.B. v. City of New York, et al.
Appellate Division, Second Department
Theory not contained in plaintiff’s notice of claim or complaint could not be used to create a question of fact to defeat defendant’s motion for summary judgment.
This decision doesn’t break any new ground but does serve as a reminder to both draft your own pleadings carefully and read those of the others with a keen eye.
The infant plaintiff sustained injuries when a door at his school closed on several of his fingers.  His parents then sued the City.  Following discovery, the trial court granted the City’s motion for summary judgment, finding that the City made a prima facie showing that a lack of supervision was not the cause of plaintiff’s injury.   Plaintiff appealed and the appellate division affirmed. 
In addition to agreeing with the lower court’s holding that a lack of supervision was not the cause of the incident, the appellate court rejected plaintiff’s argument that an alleged lack of maintenance of the door created a question of fact sufficient to defeat the City’s motion.  The court rejected this argument, noting the maintenance claim was not included in either the plaintiff’s notice of claim or complaint, and therefore could not be used to create a question of fact.  The appellate court did not comment on the potential merit of the maintenance claim.
November 28, 2018   M.P. v. Mineola Union Free School District
Appellate Division, Second Department
School Supervision:   Summary judgment based upon the primary assumption of risk doctrine precluded by a question of whether the supervision provided unnecessarily increased the risk of the activity.
9 year old plaintiff was injured while playing football during a school recess period.  The field the school used for recess was immediately adjacent to a municipal park – plaintiff’s injuries occurred when he ran into a piece of playground equipment installed at the park.  Plaintiff admitted that he and his friends regularly broke the well know school rules forbidding  students from going onto park property and received regular reprimands about their trespass from the teachers overseeing recess.  Testimony showed that 10 monitors would oversee the approximately 70-80 kids who shared plaintiff’s recess period.
The District moved for summary judgment, arguing that the primary assumption of risk doctrine applied.  That doctrine provides that a voluntary participant in a sporting activity, by their participation, necessarily assumes the risks inherent in that activity, including risks posed by field conditions.   This motion was granted by the trial court.
One exception to the doctrine is that the defendant’s actions cannot have increased or enhanced the risk to participants.  In reversing the lower court, the appellate court found a question of fact as to whether the district’s supervision of the student, which permitted the students to play football near the playground equipment, created a dangerous condition or increased hazard beyond that normally associated with the game. 
Although not specifically noted in the decision, one would have to think that the age of the players and the fact that the students regularly strayed onto the park property and near the playground equipment were part of that analysis.  My sense is the court felt that since it was clear that verbal directives and admonishments were not changing the students’ behavior (and therefore ensuring the risk of running into the playground equipment was addressed) there was at least a question of fact about whether the district’s apparent
December 4, 2018      Martinez Robles v. Time Warner Cable, et al.
Appellate Division, First Department         
Compliance with the statute or regulation underpinning your defense can only strengthen your case.
Plaintiff sued to recover for injuries allegedly sustained when she tripped and fell on a sidewalk in Brooklyn.  Near the spot where she fell was a metal equipment box owned by Time Warner and embedded in the sidewalk.  That box, which housed Time Warner equipment, quickly became the focus of the lawsuit.
Relying on a New York City regulation that required it to only maintain and repair the sidewalk within 12” of the box (it was undisputed that plaintiff tripped more than 12” from the box), Time Warner moved for summary judgment.  The lower court’s order granting the motion was promptly reversed by the appellate division, which noted that the regulatory requirement cited by Time Warner did nothing to abrogate the company’s common law duty to not create a hazardous condition on the sidewalk.  
The appellate court also addressed constructive notice, an inquiry that created a problem for Time Warner.  Time Warner’s construction manager’s deposition testimony included two key points: (1) the company would have repaired the area around the box had it been aware of the condition, and (2) Time Warner did not regularly inspect its sidewalk boxes.  This second fact destroyed any chance Time Warner’s motion had with the appellate court, since regular inspections of equipment installed in a sidewalk were required by the very regulation relied upon by Time Warner.  
This case breaks no new ground and I fully recognize that claims professionals and/or counsel don’t get to choose the facts or their control the insured’s/client’s actions prior to and during the underlying incident (wouldn’t that be nice).  That said, it’s probably wise to verify the insured/client complied with the statute or regulation used to support their position.




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

It’s the Holiday Season and there is no shortage of celebrations in the Potenza household:  Thanksgiving, Kindermas (Christmas celebrated with my out-of-town in-laws the day after Thanksgiving), Hanukkah (in honor of the godparents of my boys), St. Nicolas Day, Festivus, Christmas Eve (always a separate holiday for Italians), Christmas Day, and New Year’s, plus a lot of birthdays in between, ugly sweater parties, and a winter wedding in the Canadian Rockies.  The most fun celebration thus far was the annual Turkey Day Open, a 20 plus year tradition of thirty or so golfers at Delaware Park on Thanksgiving morning. The match is played in any and all weather conditions, and this year we faced record cold for an inebriated abbreviated 6 hole outing before our respective turkey feasts.  Certainly a busy time of year, but all fun and joyous celebrations.

Big asbestos news as the Court of Appeals upheld the Juni decision on specific causation.  More on that below.  Otherwise, all quiet on the toxic front (appellate wise that is, certainly not on the claims side…)

And now for this month’s Christmas dad joke:

What do Santa’s helpers learn at school?

The elf-abet.

11/27/18          Juni v. Ford Motor Company
Court of Appeals
The Court of Appeals affirms “specific causation” standard for asbestos claims in  rejecting plaintiff’s “each and every exposure” theory.
In a brief decision, the Court of Appeals affirmed the First Department’s decision dismissing the claim against trial defendant Ford following an $11 million mesothelioma verdict in New York County, simply stating “that the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent's injuries.”

Following the verdict, Ford was successful in its post-trial motion to strike plaintiff’s expert testimony and set aside the jury’s verdict.  The trial court ruled that plaintiff was obligated to prove not only that plaintiff’s mesothelioma was caused by exposure to asbestos, but that he was exposed to sufficient levels of the toxin from his work on brakes, clutches, or gaskets, sold or distributed by defendant, to have caused his illness.  The trial court explicitly rejected plaintiff’s expert’s opinion that “each and every exposure” can be treated as a contributing factor to causation of an asbestos related disease.

On appeal, the First Department affirmed, holding that the fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease. Even if it is not possible to quantify a plaintiff's exposure, causation from exposure to toxins in a defendant's product must be established through some scientific method, such as mathematical modeling based on a plaintiff's work history, or comparing the plaintiff's exposure with that of subjects of reported studies. The evidence presented by plaintiff here was insufficient because it failed to establish that the decedent’s mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or distributed by defendant Ford Motor Company. Plaintiff’s experts effectively testified only in terms of an increased risk and association between asbestos and mesothelioma, but failed to either quantify the decedent's exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford’s products.

Happy Holidays to you and yours!




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

Dear Readers,
Happy Holidays! The month of December is moving at break-neck speed.  Living in a household that celebrates both Hanukkah and Christmas means that, this year, the month of December has already been jam-packed with cooking, cleaning, gift-buying, gift-exchanging and guest-hosting. Luckily, double duty Holiday celebration also means double the tasty foods (hello, sugar cookies and latkes) and double the time spent with family and friends. Needless to say, I am looking forward to our traditional end-of-the-season respite spent at my parents’ home in the Fingerlakes.
In terms of cases, we have a single storm in progress case and, for those of you who rent out your homes or apartments through AirBnB during the holidays, an interesting zoning case that starts with the murder of a party-going guest and ends with a town tightening the leash on short-term rentals.

12/12/18          Hyun Kyung Oh v. Sky View Towers Holding, LLC
Appellate Division, Second Department
The one with three storms.
The Second Department affirmed the denial a storm in progress summary judgment motion where plaintiffs introduced evidence in opposition that indicated that the icy condition causing the alleged injuries pre-dated the storm at-issue; that defendants may have exacerbated the conditions caused by the storm at-issue; and that defendants had constructive notice of the ice on the premises.  Decedent brought a personal injury lawsuit after he slipped and fell on ice on a public sidewalk abutting defendant, Sky View’s property.   Defendants moved for summary judgment pursuant to the storm in progress doctrine and, produced in support of their motion, affidavits of meteorologists and certified climatological data establishing that the accident occurred while a storm ensued.  Although these materials established defendants’ prima facie entitled to judgment as a matter of law, plaintiff responded with sufficient evidence to raise multiple issues of fact.  Plaintiff submitted, among other things, an affidavit from his own meteorologist indicating that: (1) defendants may have exacerbated and/or created the hazard with snow removal efforts taken just prior to the slip and fall; (2) that the hazard may actually have been caused by the weather conditions of two storms that occurred before the one at issue; and (3) that defendants had constructive notice of any and all ice that formed as a result of the two previous storms.
09/19/18          Styller v. Aylward, et al.
Massachusetts Land Court, Dept. of the Trial Court, Essex County
The one that begins with an unsolved murder.
Plaintiff, a host on various short-term rental websites, including AirBnb, HomeAway, Tripz, VacationHomeRentals, and Flipkey/TripAdvisor, challenged his town’s zoning ordinances implemented after a murder that occurred during a short-term rental of plaintiff’s home.  Plaintiff owned a large, single family home north of Boston, Massachusetts, which he listed on various short-term rental websites.   Whenever plaintiff hosted guests through one of these websites, he and his family vacated the premises and stayed at a hotel or with family members, thus giving guests unsupervised and unrestricted access to plaintiff’s large, five bedroom home. 
In May 2016, plaintiff agreed, through Flipkey/TripAdvisor, to rent out his home to Mr. Woody Victor.  Mr. Victor was to stay for three days and stated that he would be bringing give guests with him.  As with most of the rentals solicited through short-term rental websites, plaintiff never met with Mr. Victor, or any of his guests, before agreeing to the rental, although plaintiff did research Mr. Victor on social media and exchange brief text messages about the reservation.  Plaintiff met Mr. Victor for the first time on May 27th, when he met him at the property to provide him with a key to the property and to show him how to operate various appliances in the home.   Following this meeting, Mr. Victor had sole and exclusive possession of the house for his three day stay; plaintiff vacated the premises and did not visit, monitor, or supervise Mr. Victor’s use of the home.
Unbeknownst to plaintiff, Mr. Victor did not intend to limit access to the home to five guests, but instead planned to host a large party.  More than 100 people came to the property during Mr. Victor’s stay, including Kevin Heath, who was shot and killed by another guest during Mr. Victor’s party by.  To date, the killer’s identity remains unknown.
Following the murder, the local building inspector served the plaintiff with a cease and desist Order prohibiting him from making further short-term rentals without a special permit from the zoning board.  The town also amended its zoning bylaws to prohibit all short-term rentals. Plaintiff challenged the applicability of the amended bylaw, arguing that because he had begun listing his home on various short-term rental websites prior to the municipality amending its bylaws, he “has a grandfathered right to continue.”  The dispute ultimately resulted in a bench trial, at which point a judge determined that the town may prohibit short term rentals without a special permit; that short-term rentals were always unlawful under the town’s zoning bylaws, both before and after the amendment; and that plaintiff had no grandfathered right to continue renting out his home.
Ultimately, the Court’s holding relied upon the fact that, while a homeowner can mitigate the risks of providing an unknown person with unsupervised, unfettered access to his own home, the homeowner’s neighbors cannot.  Indeed, a short-term rental might not only present a nuisance in terms of noise, but a danger to the community at-large. Website/platforms, such as AirBnB generally make no representations or warranties about guests utilizing their service, nor do they offer any assurance that the person(s) renting the premises will be the same person(s) occupying the premises during the short-term lease period. Moreover, the platforms generally provide property owners with very little information about potential renters—“AirBnB,for example, tries to run the names of people using its services through sex offender registries and criminal conviction databases, but makes no promises it has done so and no representations of any kind about anyone, ‘Host’ or ‘Guest’.”  Any and all bookings made through AirBnB, for example, are “made or accepted at the Member’s own risk.”   
Given the potential impact a short-term rental may have on an entire community, regulation of such tenancies is “squarely within the zoning power.”




Homeowner Liability, Recreational Accidents and Discovery Angles
By: Marc A. Schulz [email protected]

Greeting Subscribers!
Playoff football is almost here, and although the Bills will not be returning to the post-season, I survived week 14 in one of my fantasy leagues and absolutely love sportsing this time of year. Good luck to those still chasing the Shiva Bowl and may you be lucky enough to perform the Shiva Bowl Shuffle after you emerge victorious! This month’s issue contains a very interesting case from the First Department involving discovery of unrelated injuries that arguably affects plaintiff’s claims for lost earnings and loss of enjoyment of life, which also contained a two Justice dissent that hopefully makes it to the Court of Appeals in light of the differences between the First and Second Departments on that issue.
I also report on two spoliation cases that highlight the differences between courts striking a defendant’s answer and the lesser sanction of directing an adverse inference charge under the circumstances. Until next issue, Happy Holidays and I hope everyone has a safe and prosperous 2019. Happy New Year!

11/21/18          Cram v. Keller
Appellate Division, Second Department
Property owners not entitled to set aside a jury verdict because it was reasonable for the jury to find plaintiff was distracted when she fell, and that the 19-inch drop on the right side of the stairs, which lacked a handrail, even if open and obvious, was rendered a “trap for the unwary” such that it constituted a dangerous condition that defendants had a duty to maintain in a safe condition.
Plaintiff allegedly was injured while walking up stairs located on the outside of a house her son had rented from defendants as the handrail was only on the left side but not the right side. She testified at trial that when she started walking up on the right of the steps, she thought her grandchildren were behind her. She looked to the left, did not see them, misstepped, and lost her balance. When she tried to grab for something, nothing was there and she fell.
With respect to liability, the jury apportioned 60% fault on defendants. However, defendants asserted plaintiff failed to establish that defendants owned the house and that the allegedly dangerous condition was open and obvious such that the trial court granted defendants’ motion to set aside the verdict. The Second Department reversed and reinstated the verdict, finding that a rational jury could have concluded defendants owned the subject property, defendants were negligent in maintaining the property, and their negligence was the proximate cause of plaintiff’s injuries. Plaintiff’s expert, an engineer, testified that the stairway as maintained was not safe and that it would have been the best safety practice to have a railing installed on the open side of the landing to prevent a fall.
11/27/18          Brito v. Gomez
Appellate Division, First Department
Are medical records relating to the treatment of plaintiff’s knees five years before the accident “material and necessary” to the defense, where plaintiff seeks damages for the restriction of her ability to walk and stand allegedly due to neck, back, and left shoulder injuries from the accident?
Plaintiff testified at her deposition that knee surgeries may have affected her ability to wear heels, and that her back and neck injuries she allegedly sustained as a result of the subject accident prevented her from wearing heels and also made it more difficult to walk. However, she denied suffering any further injury to her knees in the accident. Although she only alleged injuries to her neck, back, and left shoulder, the trial court, as relevant here, ordered plaintiff to provide authorizations for medical treatment she received on her knees as defendant argued they were relevant to her claim for lost earnings and loss of enjoyment of life.
A majority of the First Department, following the waiver rule (plaintiff waives his or her physician-patient privilege only with respect to those conditions he or she affirmatively placed in controversy), held that since plaintiff’s bill of particulars and deposition testimony did not allege injuries to her knees or that her prior knee injuries were exacerbated or aggravated by the subject accident, plaintiff’s lost earnings claim does not affirmatively place the condition of her knees in controversy. In so holding, the majority rejected the Second Department’s rule that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries”, finding it cannot be reconciled with the waiver rule adopted by the Court of Appeals.
Justice Friedman’s dissent would find that medical records pertaining to a preexisting condition that is relevant to a functional deficit; here, plaintiff’s alleged difficulty in walking and standing, are discoverable “because the condition of plaintiff’s knees … is obviously relevant to the specific functional deficits (difficulty in walking and in standing) that she attributes to the spinal injuries she suffered in the accident.”
12/05/18          Squillacioti v. Independent Group Home Living Program, Inc.
Appellate Division, Second Department
Failure to suspend routine document retention/destruction policy, which resulted in the destruction of defendants’ employee personnel file, warrants the spoliation sanction of an adverse inference charge.
Plaintiffs brought suit against owners and operators of a facility alleging they negligent trained and supervised their employees while caring for Nicholas, a blind and nonverbal adult with physical and cognitive disabilities. During discovery, defendants disclosed Escajadillo as a potential witness who was working for them at the time Nicholas fractured his right leg, Escajadillo unsuccessfully attempted to stand Nicholas up from a chair during his care at the facility, and Escajadillo’s personnel file had been destroyed pursuant to defendant’s document retention policy. The trial court denied plaintiffs’ motion, pursuant to CPLR § 3126, to impose sanctions against defendants for spoliation of that evidence.
“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that trier of fact could find that the evidence would support that claim or defense. Where the evidence is determined to have been intentionally or willfully destroyed, the relevancy of the destroyed document is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense.”
Here, the Second Department found that because of plaintiffs’ negligent training and supervision claim, defendants’ knowledge of any prior wrongdoing by its employees and information concerning their training is central to plaintiff’s claim. While the Court held plaintiffs’ established that defendants improperly failed to suspend their routine document retention/destruction policy and put in place a litigation hold to ensure preservation of relevant documents, the Court refused to strike defendants’ answer and instead ordered the lesser sanction of directing an adverse inference charge be given at trial.
12/13/18          Suarez v. Dameco Indust., Inc.
Appellate Division, First Department
Willfully failing to comply with discovery demands, coupled with the lack of records that defendant was required by law to prepare, and which impedes plaintiff’s ability to prove his case, warranted  the more severe spoliation sanction of striking defendant’s answer.
Plaintiff allegedly was injured due to Dameco’s repair, service and/or maintenance of an elevator. The trial court granted plaintiff’s motion to strike Dameco’s answer for its willful failure to comply with discovery orders. The First Department unanimously affirmed, rejecting the excuse Dameco’s counsel offered in a basic affirmation stating Dameco was now defunct and that counsel’s attempts to contact Dameco’s unnamed former officers using an investigator had been unsuccessful were held insufficient to establish good-faith efforts to comply with discovery demands. The Court noted Dameco was apparently still in business when the action was commenced, yet defense counsel failed to offer an explanation for the failure to preserve any records, including inspection records it was statutorily required to prepare. Accordingly, since plaintiff demonstrated Dameco willfully failed to comply with discovery demands and the complete absence of records prevents plaintiff from proving his case, the Court held the sanction of striking Dameco’s answer was the appropriate remedy based on these facts.




Jody E. Briandi
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Todd C. Bushway
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V. Christopher Potenza
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Anastasia M. McCarthy
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Marc A. Schulz
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