Premises Pointers - Volume II, No. 8


Premises Pointers
Watch your step!

Volume II, No. 8
Tuesday, January 15, 2019
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:  Happy New Year to all of our Premises Pointers subscribers!  For our first edition of 2019, I am very excited to welcome our newest Premises Pointers contributor, attorney Marina Barci.  Marina is a newly admitted attorney in New York State and was just sworn into the bar last week on Wednesday before the Fourth Judicial Department.  She was joined at the ceremony by many of her classmates and her proud parents.  After working at Hurwitz & Fine as a law clerk during law school, Marina joined us as an associate attorney in the fall.  She is a member of our Premises Liability practice group, as well our No-Fault, Toxic Tort and General Litigation groups.  She also writes for the Coverage Pointers newsletter on no-fault insurance topics. 
We are thrilled to have Marina joining us on Premises Pointers as an assistant editor where she will be covering general litigation topics, with a focus on elevator/escalator litigation and animal liability.  While attending the University at Buffalo School of Law, Marina completed two judicial clerkships, volunteered for the WDNY’s Pro Se Assistance program, and was an intern for the WNYLC’s CLARO program, where she was able to counsel clients and argue motions in Buffalo City Court under a student practice order. She also competed in various trial advocacy and moot court competitions, as well as coached a high school mock trial team.  You can still find her coaching mock trial at the Charter High School for Applied Technologies, now as their attorney advisor (first competition is February 2nd!). When she is not at work or mock trial practice, she enjoys exploring Buffalo’s growing food scene, hiking, traveling, or reading a good book.
As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, e-mail me at [email protected]. And if would like to be added to Coverage Pointers, e-mail Dan Kohane at [email protected] and/or Labor Law Pointers, e-mail David Adams at [email protected]. We look forward to hearing from you!










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

12/20/18          Carney v. Boston Market
United States District Court, Southern District of New York
Emotional distress claim - Plaintiff got more than she bargained for with her buy-one-get-one free coupon but Defendant nonetheless prevailed on its motion to dismiss
Pro se Plaintiff Ashley Danielle Carney filed suit against Defendant Boston Market for the emotional distress she endured after allegedly being served a meal containing what appeared to be a baby bird’s head.  She sustained no physical injuries.  Plaintiff purchased the meal with a “buy one get one free” coupon.  She ate one of the meals and saved the other.  It was the second meal that apparently lacked proper preparation.  The complaint raised claims for intentional and emotional infliction of emotional distress only as the plaintiff did not suffer any physical injuries.  Defendant moved to dismiss on the grounds the complaint failed state a cause of action.  The Court agreed.  Since this was a diversity case, New York law applied.  Under New York law, a claim for intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.  In this case, the complaint failed to plead “extreme or outrageous conduct” that rises to the exceedingly high level necessary to maintain an intentional infliction of emotional distress claim. Construing the facts in the light most favorable to Plaintiff, on one occasion a Boston Market employee purposefully gave Plaintiff, a loyal customer, a chicken piece containing a baby bird’s head -- including a protruding beak and eyes. Although this behavior is upsetting and not to be condoned, this situation is “not so extreme and outrageous as to satisfy [New York’s] exceedingly high legal standard.”
Plaintiff also attempted to plead a claim for negligent infliction of emotional distress.  New York recognizes two theories of negligent infliction of emotional distress: (1) the bystander theory and (2) the direct duty theory.  Under a bystander theory, “a plaintiff is entitled to recover damages if a defendant’s conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant’s conduct on a member of the plaintiff’s immediate family in his or her presence, the plaintiff may recover damages for such injuries.”  And under the directory theory, “a plaintiff suffers emotional distress caused by ‘defendant’s breach of a duty which unreasonably endangered [plaintiff’s] own physical safety.” 
In addition, “New York recognizes a cause of action where there is ‘an especial likelihood of genuine and serious mental distress, arising from ... special circumstances, which serves as a guarantee that the claim is not spurious.’ ” The plaintiff again failed to plead facts under the negligent infliction of emotional distress under any of these theories. First, the bystander theory is inapplicable because the Complaint does not allege a serious injury or death of a family member. Second, the direct duty theory does not apply because -- even though Plaintiff suffered emotional distress -- the Complaint does not plausibly allege that the chicken specimen unreasonably endangered Plaintiff’s physical safety. Although the Complaint alleges that Plaintiff’s physical safety was at risk, this bare assertion is unexplained and unsupported. Finally, the facts of this case are not akin to the “special circumstances” cases, which involve misinforming a plaintiff of the death of a loved one, falsely informing a plaintiff of a serious medical diagnosis and other instances of comparable gravitas not present in this case. For these reasons, the Complaint fails to plead a sufficient claim for negligent inflection of emotional distress, and the claim is dismissed.
1/03/19           Ramos v. Waldbaum, Inc.
Supreme Court, Suffolk County, New York
Defendant’s motion to dismiss granted because it did not owe a duty to the shopper who was assaulted by an employee the defendant’s placement agency placed at the store
Plaintiff sustained personal injuries on August 17, 2009 at a Waldbaum's store when he was assaulted by Richard Cox, an intellectually and developmentally disabled Waldbaum's employee. According to the plaintiff, he was retrieving a cart from the parking lot and walking toward the store when Cox, without apparent provocation, began yelling obscenities at him, approached him from behind and, ultimately, struck him near the store entrance.  Plaintiff filed suit against both the store and Developmental Disabilities Institute, Inc. (“DDI”), the placement agency that placed the employee there.  DDI moved for summary judgment, claiming that it did not negligently place Cox at Waldbaum's and that it owed no duty of care to the plaintiff.  The plaintiffs opposed the motion, claiming that DDI did indeed assume a legal duty, not only to Richard Cox, but also to his employer and, by extension, its customers, including the plaintiff.
In opposing the motion, the plaintiffs submitted the expert affidavit of a vocational rehabilitation counselor, training coordinator for individuals with disabilities and a program services administrator for individuals with developmental disabilities.  He concludes that DDI failed to follow good and accepted practice and breached its duties and responsibilities by failing to address Cox's history of profane verbal outbursts and physical violence.  In reaching its decision, the court reiterated that “before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff.”  The court stated that “typically, liability for the negligent acts of third persons arises only when the defendant has both the authority and ability to control the actions of such persons” absent special circumstances.  In granting DDI’s motion, the court relied on the fact Cox was not an employee of DDI and DDI had no authority or ability to control his conduct at his place of employment.  The Court noted that that it was Waldbaum's, not DDI, who had the authority to change Cox's work assignment or to terminate his employment if it had been observed that his behavior impaired the safety of Waldbaum's customers. 
1/07/19            Rydstrom v. Home Depot U.S.A. and Peck Brothers, LLC
United States District Court, Eastern District of New York
In a slip and fall case, motion filed by Home Depot’s roof contractor granted because contractor did not owe a duty to the plaintiff  - Home Depot remains in the case as the only defendant
Plaintiff was shopping with her husband at a Home Depot store when she slipped and fell on a wet floor.  Before falling, she observed a three to five-foot wide puddle in front of the shelves where she was shopping and noticed water dripping from above, which she assumed was coming from the roof.  Plaintiff left the area to shop and then returned to get an item from the shelf.   After taking the item down, she stepped back, slipped in the puddle of water and fell backwards. Home Depot managers that responded to the scene received no complaints that day and did not observe any water dripping from the roof, nor had he observed any leaks in the two weeks preceding the accident during which period he walked down the relevant aisle more than fifteen times. With respect to the roof, Home Depot has a contract with Peck Brothers for maintenance services.  Although in the year, weeks, and days leading up to Plaintiff’s fall Peck Brothers performed several tasks on the Premises’ roof on an as-ordered basis, the record is devoid of any evidence that Home Depot ever requested a repair for a leak over the area where the incident occurred. Peck Brothers moved for summary judgment, which the magistrate judge recommended be granted because Peck Brothers owed her no duty of care as a matter of law to the plaintiff. Home Depot asserted crossclaims against Peck Brothers for contribution, contractual and common-law indemnification, and failure to name Home Depot as an additional insured on its liability policy. The Court next concluded that Home Depot’s crossclaims fail as a matter of law.  Specifically, the absence of evidence that Home Depot ever submitted a work order requesting that Peck Brothers repair a leak in the area of the roof in question, coupled with the lack of an affirmative obligation to inspect the roof for leaks, renders Home Depot’s crossclaims fatally flawed.




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

Greetings from January 2019.  I’ll pass on the customary tropes about winter in Buffalo and the rest of western New York.  Other than a couple of my toddler years spent in Hazlet, New Jersey (Exit 117 on the Garden State Parkway) and my college years, I have lived in western New York my entire life.  I like the change of seasons and have never viewed winter as a 3-month sentence of doom, gloom and despair. 
My daughter is back to school at Villanova for the spring semester; her parents thrilled with an absolutely terrific first semester GPA.  Only 7 more semesters to go.  I’m not sure how it happened, but the very non-athletic person who resided in the bedroom at the top of the stairs the last several weeks was a rabid and very vocal college basketball fan, prone to passionately dissecting every ‘Nova game and what it means in terms of national and Big East rankings and the team’s NCAA tournament hopes.   With my son a high school junior, the calendar turning to January means another college search ramps up.  Didn’t we just go through this?  Of course both kids are different, meaning a large portion of the materials gathered a year or so ago are pretty much worthless. 
Not a whole lot happening on the musical front.  Yesterday brought the announcement of that the Who (or at least the two surviving members) will roll into Buffalo for a show in May.  For those of you counting, the Who’s “farewell” tour took place in 1982.  They have toured at least 10 or 11 times since. I’m not sure they understand what the words “final” and farewell mean.  Check out the Aussie band Amyl and the Sniffers.  They only have a couple of EPs out but I like the heavy dose of snark included in the pop-punk/garage sound.  Charlie Pickett’s I Like Miami will make fans of bluesy bar rock happy.  Pickett is an interesting story – from Florida, he enjoyed critical and regional success in the 1980’s but was never able to break through commercially.  He then did what any reasonable person would do – he walked away from the music business, went to law school and became a respected attorney.  I discovered Pickett years ago when I stumbled upon his record Bar Band Americanus, which consists of a live show, with several studio recordings tacked on the end.  I still play that disc on a regular basis.
We review three cases this month.  The first deals with plaintiffs’ attempt to “update” their notices of claims to add a new theory against a municipal defendant.  The other two cases deal with the scope of duty owed by a school to its students and staff.  Brown looks at a school’s duty to a student who was assaulted by a fellow student while on her school bus heading home – the school bus was provided by a transportation company contracted by the school district.  The final case examines whether a Board of Education owed special duty to a principal injured by a student.
December 12, 2018    Johnson v.  County of Suffolk, et al.
Appellate Division, Second Department
Notice of Claim – Leave to Amend previously served notice of claim denied.  Leave to serve notice of claim denied because of statute limitations and lack of actual notice of the essential facts underlying the claim.
In June of 2014, then 10-year-old John Johnson was injured when he was struck by a car while crossing a street with his family in the Town of Babylon.  The plaintiffs alleged that a park ranger employed by the Town had waved them across the street, an action they claimed was a cause of the accident.
In November 2014, Plaintiffs – consisting of Johnson, as well as his mother, in her capacity as Johnson’s mother and individually – timely filed a notice of claim against several municipal entities, including the Town of Babylon.  This notice of claim alleged the Town was liable because of problems with the design and layout of the roadway, as well as an alleged failure to assess dangers along the roadway through an adequate traffic plan.
In September 2017, three years after the original notice of claim was filed, plaintiffs brought an Order to Show Cause seeking to both amend their prior notice of claim and to serve what they described as a late notice of claim.  This notice of claim now alleged the Town was liable through the negligent acts of its employee, the park ranger.  The lower court granted the application and the Town appealed.  On appeal, the Appellate Division, Second Department reversed the lower court.
The court first addressed plaintiffs’ request to amend their previously served notice of claim.  The court rejected this application, noting amendments to a notice of claim were appropriate only to “correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability.”

Next, the court addressed whether the new allegation should be allowed as a late notice of claim. 

The court first addressed the claim brought by Johnson’s mother in her individual capacity, rejecting that outright. A court is without authority to grant an application to serve a late notice of claim beyond the applicable statute of limitations, which in this case expired one year and 90 days after the accident occurred in June of 2014.  Finally, the court rejected the late filing on behalf of Johnson (the infant plaintiff) because plaintiff could not show that the Town had actual k knowledge of the essential facts underlying the claim (i.e. that the ranger waved the family across the street) within the statutory 90 days. 
The court noted that plaintiff had not been struck by the Town employee, presumably drawing a distinction between this case and one where the Town would have had knowledge of the accident because of direct involvement in underlying accident.  Plaintiffs’ argument that their testimony given pursuant to General Municipal Law §50-h gave the Town notice of the claim was rejected by the court because that testimony did not include any statement that a park ranger waved the family across.  The court also rejected as sufficient notice witness statements about the park ranger’s potential involvement given to the Suffolk County Sheriff’s Department.  Notice to the county sheriff is not notice to the Town.  The court also found that the plaintiffs failed to present an adequate excuse for the delay in seeking to add the claim.
December 21, 2018    Brown v. First Student, et al.
Appellate Division, Fourth Department     
Is a school liable for harm to a student occurring on a school bus not owned and operated by the school?
The Appellate Division, 4th Department split 3-2 in favor of plaintiffs on this decision, giving the defendants an automatic righty of appeal to the Court of Appeals, a right I believe will be exercised.
Plaintiff is a special education student who attended Our Lady of Black Rock, a Catholic elementary school within the City of Buffalo.  The City provided busing for the plaintiff to and from her school, as it did for all other city residents attending similar private schools.   Plaintiff was sexually abused by a fellow student at least five times while riding home after school on her school bus.  The City had contracted with a private transportation company to provide and operate the bus.  The plaintiff’s mother alleged she had complained to her daughter’s school about the alleged abuse but no action was taken.
The school moved to dismiss certain of the claims against it, arguing that its duty to care for the child ended when the child left its custody and got onto the school bus.  That motion was denied by the lower court and upheld by the three judge majority at the Appellate Division.  The majority’s short decision did not include any discussion about why it felt the claims against the school for the events that occurred on the contracted bus were viable.  The dissent argued that the majority, in upholding the lower court decision, was ignoring the clear case law addressing a school’s duty to its students - that a school is obligated to duty to care for students is limited to those times when the child was in its physical custody or otherwise under its control.  In this case, both the plaintiff and her purported assailant were in the care and custody of the 3rd party transportation company, hired by the City of Buffalo to provide transportation, when the alleged misconduct occurred.
Several years ago, I represented a school district against a claim brought by a bus aide for injuries resulting from an incident involving an unruly special needs student while that student was being transported home from school.  The bus was owned and operated by a private transportation company, operating under a contract with the district to provide busing for its student.  The plaintiff, an aide on the bus, was employed by the transportation company.  Based upon the research we conducted in that case, my understanding of the current case law was in line with the dissenting opinion. We will have to see what the Court of Appeals does with this case.
December 12, 2018    Wilson v. New York City Department of Education, et al.
Appellate Division, Second Department
Absence of a special duty vitiated school’s liability for injuries sustained by principal during interaction with a student.
Plaintiff, a school principal, was injured when a 12-year-old student grabbed a cell phone from her hand.  She sued the Department of Education, alleging the defendant’s school safety officer had failed to protect her.
The lower court granted the defendant summary judgment, a ruling upheld on appeal.  The appellate court began by noting that a school district is only liable for the allegedly negligent performance of its governmental function to supervise students in its care where the injured person was owed a special buy the school.  A special duty arises vis a vis a teacher in one of three ways: (1) the violation of a statutory duty enacted for the benefit of a certain class of persons (e.g. teachers), (2) the voluntary assumption of a duty that generates a justifiable reliance by the person benefiting from the assumed duty, or (3) the voluntary assumption of ”positive direction and control in the face of a known, blatant and dangerous safety violation.” 
Plaintiff claimed the presence of the school safety officer represented an assumed duty by the board of education, placing her within a class of individuals to whom a special duty was owed.  A voluntarily assumed duty, the second scenario described above, requires fulfillment of 4 factors.  Those are: (1) the assumption of a duty, through promises or actions, of an affirmative duty on behalf of the injured party, (2) knowledge by the municipal entity that a failure to fulfill the assumed duty could lead to injury, (3) some type of direct contact between the injured party and the municipal entity’s employees or agents, and (4) justifiable reliance by the injured party upon that assumption of an affirmative duty.
The court found that on these facts, no special duty for the benefit of the principal had been created and the trial court’s order granting the Board of Education summary judgment proper.
My first thought when I read the decision was what role would the plaintiff’s position play in assessing the adequacy of the security at the school – as principal, plaintiff would surely have some obligation for the safety and security of both students and staff in her school, a responsibility that could not be placed solely upon the safety officer and the board of education.  The opinion is silent on this issue.




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

Well, it’s been a whirlwind couple of weeks as the craziness of the holidays was followed up by back-to-back family wedding extravaganzas.  The first was the wedding of my sister-in-law in Banff, Alberta.  The Canadian Rockies are simply majestic.  That was followed by a week-long celebration for my cousin’s wedding in Dhaka, Bangladesh, a densely populated city with no discernible traffic laws.  While every event was a new cultural experience for me; the highlight was definitely the Holi party, a traditional Hindu celebration in which everyone dances and douses each other with colorful paint and dyes. These locales could not be farther apart, in distance or aesthetic, but were both incredible and enriching journeys.  As I just returned from a 20-hour flight from the eastern hemisphere and I still don’t know what day or time it is, and there are countless e-mails and phone calls to return, I will keep this column rather short and sweet.  There is nothing of substance to report from the appellate ranks in December in the areas of toxic exposures.  I do anticipate some interesting decisions in the coming year, however, as asbestos plaintiffs and defendants alike will be testing the Juni “specific causation” decision to the particular facts of their cases in the trial courts, and lead-paint plaintiffs will continue to try novel approaches to avoiding the statute of limitations defense. 

And now for this month’s dad joke:

What happened to the vampire who attacked the snowman?





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

Dear Readers,

It’s official, we have reached the hibernation stage of winter.  Quite frankly, this is always a time of year that I enjoy (minus having to shovel my driveway, of course)—to me there’s nothing better than curling up under a heated blanket with a good book.  Every year, I aim to read at least one book per month.  Some years have been more successful that others and so far, 2019 is off to a good start.  In fact, in the last two weeks, my nightstand has become home to two ever-growing piles of books that I intend to read over the coming months.  At the moment, I am working my way through an old collection of David Sedaris stories; next up will be A Gentleman in Moscow, which was recommended by my mother-in-law.
Despite being very tempted to take several leisure reading breaks today, I have spent the last few hours reading a different set of written works as I carefully combed through the learned opinions of the New York’s Appellate Divisions so as to present you with the following cases:  
12/19/18          Bronstein v. Benderson Development Company, LLC, et al.  
New York Appellate Division, Second Department
*Decision available upon request.

The one where the snow contractor is released from liability.
Plaintiff initiated a personal injury lawsuit against several defendants after she slipped and fell on ice in the parking lot of a strip mall—defendant Benderson managed the premises; defendant Fitzgerald Family LLC owned the premises; and defendant Amaxx Cameon Landscaping, Inc. was responsible for snow and ice removal services on site pursuant to a contract with Benderson.
At the close of discovery, all three defendants moved for summary judgment.  Benderson and Fitzgerald argued that they did not create nor have notice of the icy condition at-issue; Amaxx argued that it did not owe plaintiff a duty of care in light of its limited snow/ice contract with Benderson. The trial court granted all three defense motions and plaintiff appealed to the Appellate Division.
Affirming the lower court’s decision to grant Amaxx’s motion, the Second Department held that Amaxx established, prima facie, that it owed no duty of care to plaintiff when it produced a copy of its contract with Benderson, to which plaintiff was clearly not a party. Although it is true that a limited services contract may still impute some liability to a contractor for the injuries of third-parties where one of the three Espinal exceptions apply (i.e. where (1) the contracting parting fails to exercise reasonable care in the performance of his duties and “launches a force or instrument of harm”; (2) the plaintiff detrimentally relied on the continued performance of the contractor’s duties; and (3) the contracting party entirely displaced another party’s duty to maintain the premises in a safe condition), Amaxx was not obligated to affirmatively rule out each exception because plaintiff did not set forth any allegations in her pleadings establishing their applicability, nor did she, in opposition to Amaxx’s motion for summary judgment, raise a triable issue of fact as to whether Amaxx launched a force or instrument of harm.
The trial court’s rulings as to the motions of Benderson and Fitzgerald, however, were reversed as the Appellate Division determined that issues of fact existed regarding Benderson and Fitzgerald’s   constructive notice of an icy condition.  Specifically, the Appellate Division determined that Benderson and Fitzgerald did not actually establish that they lacked actual and constructive notice of the condition at-issue, but instead merely pointed to the gaps in plaintiff’s case—defendants did not show what the accident site looked like within a reasonable time of the prior snow storm; defendants did not show what the site looked like before the incident occurred; and defendants otherwise failed to submit any meteorological data proving that the alleged ice condition was not the result of the prior snow storm.
12/21/18          Schult v. Pyramid Walden Company L.P., et al.
New York Appellate Division, Fourth Department
*Decision available upon request.

The one where plaintiff’s own admission that it was snowing at the time of loss was not enough to support Storm-in-Progress.
Plaintiff brought a lawsuit against a shopping mall after she slipped and fell on snow in the mall parking lot. Defendants moved for summary judgment, arguing that there could be no liability against because a storm was in progress at the time of loss. The trial court denied defendants’ motion, which the Fourth Department affirmed on appeal, holding that defendant did not make a prima facie showing that plaintiff’s injuries were caused by a storm in progress. In support of its motion, defendant submitted plaintiff’s testimony that it was actively snowing when she slipped and fell on approximately five inches of snow in the parking lot; the contradictory testimony of plaintiff’s husband, that it had stopped snowing at some point in the two hours preceding the incident; and the affidavit of a meteorologist, which the Appellate Division determined was insufficient to establish that it had continued snowing after 12:54 p.m. in the area where the incident occurred.




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

Greeting Subscribers!
Although football season is winding down, Syracuse put the national spotlight back on Western New York last night with its upset victory of Duke in an overtime college basketball thriller. It is also the first time in the history of the NFL that the four top scoring offenses advance to conference championships! This month, I report on one discovery case where the First Department noted that defendant’s motion papers “suggests engagement in some sort of tactic to again avoid producing the witness for deposition.”
Until next issue, stay warm and enjoy Super Bowl LIII.
12/27/18          Yesenia S. v New York City Hous. Auth.
Appellate Division, First Department
Defendant barred from offering liability evidence at trial as a sanction for its failure to comply with the trial court’s discovery order.
Plaintiff, a pedestrian, allegedly slipped and fell on a wet stairwell on premises owned by defendant. The trial court denied defendant’s motion to vacate an order of preclusion, barring it from offering proof at trial on the issue of liability for its failure to produce a witness for deposition. Defendant’s explanation was that its employee it was previously ordered to produce was still in its employ when it filed the motion to vacate, but its counsel was unaware that the witness was no longer defendant’s employee.
The First Department unanimously affirmed the trial court’s discretion to issue an order of preclusion, finding that defendant had willfully failed to comply with discovery. The Court noted that even if defendant’s explanation was true, it still does not constitute a “reasonable excuse” since the information was readily available and could have been obtained had defendant exercised due diligence.




Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues

By: Marina A. Barci [email protected]

Dear Readers,
I am excited to be contributing to Premises Pointers as a newly admitted attorney! I was lucky enough to work behind the scenes on this newsletter last year when I was a law clerk at H&F, doing research and trying to find interesting cases for Jody, Todd, Chris, Anastasia and Mark to report to you on. Now that I am an attorney myself and on the front lines of premises cases, I am ready to keep you informed about Elevator and Escalator issues, Animal Liability, and General Litigation matters.
If you have any questions, comments or suggestions, please feel free to contact me at [email protected] or 716-849-8900. I look forward to hearing from you! ~Marina
Elevator/Escalator Accidents

No new cases to report on in this area this month.
Animal Liability

01/09/19          M.B. v. Hanson
Appellate Division, Second Department
Regularly stealing food makes a dog annoying, not vicious…and setting aside this verdict would have required a finding that this conclusion was not made based on a fair interpretation of the evidence.
This case actually falls under both the animal liability and general litigation categories. First, we’ll talk about the dog bite issue in the case. As you may recall, strict liability for damages caused by a dog bite will be granted if the plaintiff can prove that the dog 1) had vicious propensities and 2) that the owner of the dog, or person in control of the premises, knew or should have known of such propensities.
Here, the dog belonged to the defendant grandmother of the infant plaintiff. The infant plaintiff’s parents and aunt had given the dog as a gift to the defendant (this cannot make family dinners easy at the Hanson household!). The infant plaintiff and his parents had lived in the downstairs portion of the defendant’s two-family house for several years, during which the dog resided with the plaintiff. Prior to the incident, they had moved to their own place, but in February 2013 the infant plaintiff had gone for an extended stay at the defendant’s house.
One day during this stay, the infant plaintiff was eating pancakes. As he was trying to get down from a stool, he had a pancake in his hand. The dog, known for trying to take food out of people’s hands, jumped for the pancake but missed and bit the infant plaintiff in the face.
Evidence at trial was presented that showed the dog became excited in the presence of food and would often try to jump and grab food from tables, counter tops, and people. It was undisputed that the dog had never bitten or attacked anyone, nor did he display any threatening, violent, or aggressive behavior toward people. The jury concluded that the dog was not vicious, but rather that the evidence showed he was rambunctious and annoying at times.
Now for the general litigation issue: unhappy with this verdict, the plaintiff’s moved to set aside the jury’s verdict under CPLR § 4404 (a) as contrary to the weight of the evidence. CPLR § 4404 (a) states that a court may set aside a jury’s verdict as contrary to the weight of the evidence if the jury could not have reached its conclusion on a fair interpretation of the evidence.
The court decided here that the evidence presented was sufficient to determine that the dog was not vicious. Even though there was evidence that could have led to the opposite conclusion, the court had to defer to the jury’s assessment of witness credibility and deny the motion to set aside the verdict.
General Litigation Issues

01/09/19          Avissato v. McDaniel
Appellate Division, Second Department
Apparently people were quite unhappy with their jury verdicts, as this is another CPLR § 4404 (a) case. This time, the parties were involved in a motor vehicle accident. The plaintiffs were granted summary judgment on liability, so the trial was only for damages. At trial, the jury found that the accident was a substantial factor in causing plaintiff’s injuries, and that he sustained a permanent consequential limitation of use of a body order or member as a result.
The jury awarded $12,500 for past medical expenses and $12,500 for pain and suffering. There was no award for future pain and suffering. The plaintiff moved to set aside the verdict under CPLR§ 4404 (a), and for a new trial on the damages issue. The lower court denied the motion, and the plaintiff appealed.
The appellate court found that the motion should have been granted. It was inconsistent for the jury to find that the plaintiff was not entitled to future pain and suffering damages when they decided that his injuries were permanent in nature and proximately caused by the accident. The court also found that the jury’s award for past pain and suffering was inexplicably low, and may have been the result of an impermissible compromise. Therefore, the case was remitted to the lower court for a new trial on past and future pain and suffering.
01/04/19          Choi Yim Chi, et al. v. Miller, et al.
Supreme Court, Queens County
A number of procedural issues were addressed in this case, including a vacating default judgment, service of process, and settlement agreements. The basis for the issues stems from the first action settlement agreement. There were several parties, but defendant Wu believed that he and plaintiffs Chi and Lin settled their dispute with his payment of $420,000, to be distributed between them. Both plaintiffs and defendant filed a stipulation of discontinuance on 12/05/16. However, on 11/29/16, Chi had commenced a second action again Wu and obtained a default judgment against him.
Under CPLR § 5015 (a)(1), a defendant seeking to vacate a judgment entered upon his default in appearing must demonstrate 1) a reasonable excuse for the default and 2) the existence of a potentially meritorious defense. This motion to vacate must be made within one year after service of a copy of the judgment or order with written notice of entry. However, under § 5015 (a)(4), vacatur based on lack of personal jurisdiction may be made at any time. Wu’s argument for vacating the default judgment was that he was not properly served in the second action.
Chi did not submit any affidavits or evidence in opposition to Wu’s Order to Show Cause to vacate; he only submitted a memorandum of law. The court found based on Wu’s motion that he was never served under CPLR § 308(1), but rather that the process server left the papers for the second action with Wu’s daughter on 5/26/15. In May 2015, Wu’s daughter was only 13 years old. Given that the papers were served on his daughter and not Wu personally, he had a good faith basis for believing his dispute with Chi had been resolved by his payment of $420,000, thus satisfying the reasonable excuse requirement for vacatur.
The second requirement for vacatur – a potentially meritorious defense – was satisfied by the proof of tender of the $420,000 to Chi’s attorney, and Wu’s understanding that this was meant to settle the case and extinguish all claims against him. Again, Chi failed to establish any proof contrary to Wu’s proof of payment and settlement belief.
While neither party brought it up, the court noted that there was a genuine argument to be made that the parties did not have a meeting of the minds with regard to the settlement and stipulation of discontinuance, but chose not to sua sponte vacate the prior settlement.
An additional issue rose about whether or not a 13-year-old is a person of suitable age and discretion upon whom a summons may be served. The court reiterated that the Court of Appeals has never addressed the issue of service upon a young teenager. While the 2nd Department has found that a 15-year-old was of suitable age and discretion to obtain personal jurisdiction over their parent, there is Legislative support for the proposition that someone under the age of 14 is not old enough to be served with process. However, even those from age 14-18 who must be served personally must also have an adult who is served on their behalf. Because there was no strict precedent, this court declined to find as a matter of law that Wu’s 13-year-old daughter was too young to accept service on behalf of her father. A traverse hearing (a pre-trial hearing to determine the validity of service of process in civil actions) was ordered to make this determination, based on whether she was of “sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant.”
Finally, the court made sure to say that a claim of lack of personal jurisdiction is not waived by a defaulting defendant. The court also stated that although Wu met the requirements of CPLR § 5015 (a)(1), a movant is relieved of the obligation to meet these requirement when lack of personal jurisdiction is asserted as the grounds for vacatur. Additionally, although not requested, the court granted Wu the opportunity to file an answer for this action.




Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Marina A. Barci
[email protected]


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