Premises Pointers - Volume II, No. 9

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.

WHAT PREMISES POINTERS COVERS
Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Swimming Pool and Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Toxic Exposures
Municipal Liability

NOTE FROM THE EDITOR:

If you receive our sister newsletter Coverage Pointers, which published a special edition yesterday, you have already heard that New York State Governor Andrew Cuomo signed the Child Victims Act into law yesterday.  Attorney Anastasia McCarthy will be covering the impact of the new law for Premises Pointers and will also be speaking with several media outlets about the topic.  You can expect to see additional articles from Anastasia starting this month moving forward as this is a significant change in the law that will have far reaching effects in the insurance industry and for many of our clients.  Attorney Jerry Marti will be covering the subject for Coverage Pointers and will be focusing on the insurance implications.  Please feel free to reach out to Anastasia at [email protected] or Jerry at [email protected] with your questions and comments.
 
Changing gears, a New Jersey man received a lot of news coverage earlier this month when he was caught throwing ice on the floor and then faking a slip and fall accident.  If you haven’t seen the footage, here it is: https://www.washingtonexaminer.com/news/new-jersey-man-threw-ice-on-floor-then-faked-a-slip-to-file-insurance-claim.  Thank goodness for the company’s surveillance video, otherwise, he might have gotten away with his fake fall and presumably feigned injuries.  This is yet another reminder of the importance of a good surveillance system and how critical maintaining the footage can be when defending a claim.
 
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!

Jody

By: Anastasia M. McCarthy [email protected]
 

Dear Readers,
 

By now, many of you have probably heard the Child Victims Act became law yesterday. Although the law’s origins are firmly rooted in the abuse scandal that has plagued the Catholic Church for more than five decades, it is anticipated that the CVA will have a profound and long-felt impact on nearly all institutions, public or private, that work with children.  This month, I am dedicating my column to the basic nuts and bolts of the civil provisions in the law—over the course of the next several months, we will also release articles that explore the nuanced impact we think the new law will have on sexual tort litigation in the State of New York, particularly when the defendant is a municipal entity. If you are interested in the various coverage questions arising from the CVA, please be sure to check out Jerry Marti’s column in Coverage Pointers. 
 
Who does the new law impact? Briefly stated, any and all individuals and institutions that have in the past, or currently do, work with children. Specifically, the law allows for the commencement of a civil lawsuit for “physical, psychological or other injury or condition” against “any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission [of certain defined (and illegal)] conduct. ”
 
What conduct falls within the scope of the Act? The CVA covers conduct, against a person younger than 18, that constitutes a sexual offense under Article 130 of the Penal Code, incest (as defined by the penal code), the use of a minor in a sexual performance (as defined by the penal code) and conduct that was otherwise outlawed by a predecessor statute in effect at the time of the tortious conduct.  Article 130 of the Penal Code defines and prohibits the following conduct:
 
130.20 Sexual Misconduct
130.25 Rape in the Third Degree
130.30 Rape in the Second Degree
130.35 Rape in the First Degree
130.40 Criminal Sexual Act in the Third Degree
130.45 Criminal Sexual Act in the Second Degree
130.50 Criminal Sexual Act in the First Degree
130.52 Forcible Touching
130.53 Persistent Sexual Abuse
130.55 Sexual Abuse in the Third Degree
130.60 Sexual Abuse in the Second Degree
130.65 Sexual Abuse in the First Degree
130.65-a Aggravated Sexual Abuse in the Fourth Degree
130.66  Aggravated Sexual Abuse in the Third Degree
130.67 Aggravated Sexual Abuse in the Second Degree
130.70 Aggravated Sexual Abuse in the First Degree
130. 75 Course of Sexual Conduct Against a Child in the First Degree
130.80 Course of Sexual Conduct Against a Child in the Second Degree
130.85 Female Genital Mutilation
130.90 Facilitating a Sex Offense with a Controlled Substance
130.91 Sexually Motivated Felony
130.95 Predatory Sexual Assault
130.96 Predatory Sexual Assault Against a Child
 
The Statute of Limitations
 
In New York, the Statute of Limitations for a sexual tort claim on behalf of a minor previously depended on the theory of liability and the identity of the defendant—an intentional tort claim against an individual abuser was required to be commenced within one year of the plaintiff’s 18^th birthday; a negligence claim against an institution, within three years of the plaintiff’s 18^th birthday; and negligence claim against a municipal entity required a notice of claim within 90 days of the tortious conduct and commencement of a lawsuit within one year and 90 days of the plaintiff’s 18^th birthday. Now, a plaintiff has until age 55 to commence a sexual tort action for abuse occurring during childhood, regardless of the theory of liability, against any party.
 
The Revival of Expired Claims
           
In addition to generally extending the Statute of Limitations, the law also provides a one year window (beginning August 14, 2019 and ending August 14, 2020) for the revival of claims otherwise expired or previously dismissed.  Specifically, the law allows people now over age 55 to commence a sexual tort lawsuit for events occurring before his or her 18^th birthday.  Similarly, claimants whose claims or causes of action were previously dismissed for failure to timely file suit or failure to timely file a notice of claim may also revive their prior claims.  Revival claims arising under this provision of the law are afforded a trial preference and it is anticipated that these claims will carry with them the most concerning evidentiary issues. 
 
The Municipal & Education Laws
           
Municipal defendants, including school districts and district employees, will no longer be entitled to service of a Notice of Claim for lawsuits arising from the conduct covered by the CVA; not only does this mean delayed notice of individual claims, but failure to serve a timely Notice of Claim will no longer constitute a dispositive defense and 50-h examinations will no longer be available for cases arising under the Act.

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

2/06/19            Sarris v. Fairway Group Plainview, LLC
Appellate Division, Second Department
Spoliation sanctions again sought against a retail defendant for allegedly not preserving surveillance video – retail store prevails.

Store patron brought action against store after allegedly slipping on ice on 12/24/12 in the parking lot of the store operated by defendant.  On 1/3/12, plaintiff’s attorney sent letter to defendant requesting it preserve “any and all video footage depicting the location of my client’s accident.”  Later, on 6/3/13, in response to the plaintiff’s pre-action proceeding to compel disclosure of the footage, the Supreme Court directed defendant “to preserve such footage of the incident, including the 24 hours preceding same.”  Defendant’s security manager subsequently testified at his deposition that, shortly after the accident, he reviewed footage from four outdoor cameras and that only one that showed the entrance and exit had captured the accident.  He preserved the footage from that camera, and that the footage from the remaining cameras was automatically overwritten after approximately 30 days.  Thereafter, plaintiff then moved to impose sanctions on defendant for spoliation of evidence arguing that the footage from the additional cameras was necessary to establish her prima facie case. The Supreme Court granted the plaintiff’s motion to the extent of directing that a negative inference charge be given against defendant at trial. The Appellate Division reviewed the applicable law “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 a trier of fact could find that the evidence would support that claim or defense.”

Here, it was determined the Supreme Court was wrong in imposing sanctions against defendant because the plaintiff did not initially request that video footage of other locations also be preserved so defendant was not on notice that such footage might be needed for future litigation.  In addition, the court found the plaintiff had not established that the absence of such footage deprived her of the ability to prove her case.
 

2/06/19            Crosby v. Southport, LLC
Appellate Division, Second Department
Out of possession owner’s motion for summary judgment granted but tenant’s was denied because while condition was open and obvious, the record lacked proof it was not inherently dangerous. 

The plaintiff was allegedly injured while in a bathroom at premises leased by the defendant Xerox in a building owned by the defendant Southport. Crosby approached a sink and stepped on an extension cord which was plugged into a portable water heater under the sink. He felt the cord roll under his foot, and then he fell backwards to the floor.  Southport moved for summary judgment on the grounds it was an out-of-possession landlord.  The motion was denied.  Southport thereafter moved for leave to renew its motion based on newly obtained deposition testimony of a facilities department employee of Xerox who stated that he had installed the extension cord.  Xerox moved for summary judgment on the grounds the sole proximate cause of the accident was Crosby’s failure to observe the open and obvious condition of the extension cord.  Both motions were denied.  On appeal, the court held that Southport’s motion for leave to renew should have been granted. The new evidence submitted on Southport’s renewal motion established that it did not create the condition, did not assume a duty in the lease or through a course of conduct to repair non-structural conditions in the subject bathroom and did not retain sufficient control over, or have notice of, the conditions which allegedly caused the accident so as to subject it to liability thereby granting the motion.  The denial of Xerox’s motion however was upheld by the Appellate Court, which ruled to obtain summary judgment, “a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous.”
 
 
2/01/19            Easley v. Mount Olive Baptist Church
Appellate Division, Fourth Department
Fourth Department again rules that a dangerous condition that is open and obvious does not negate the duty to maintain premises in a reasonably safe condition, but, rather, bears only on the injured person’s comparative fault.

Plaintiff was injured when the heel of her shoe allegedly got caught in a sidewalk crack outside a building in the City of Buffalo.  Defendant moved for summary judgment based on trivial defect and open and obvious.  The Supreme Court granted the motion but the Appellate Division reversed.
 

1/16/19            Celestin v. 40 Empire Boulevard, Inc.
Appellate Division, Second Department
Donut shop not responsible for snow and ice removal on portion of sidewalk in front of adjacent restaurant and therefore owed no duty to plaintiff – summary judgment decision upheld.

Plaintiff’s decedent allegedly was injured when he slipped and fell on black ice on a sidewalk adjacent to premises located at 40 Empire Boulevard in Brooklyn, which housed a Dunkin Donuts and Popeyes restaurant.  Defendant Donut Corp. moved for summary judgment based on the sublease agreement, which required Donut Corp. to keep the sidewalk and curb immediately in front of its subleased premises free from ice and snow. In support of its motion, Donut Corp. also submitted the EBT of the decedent, in which he testified that he fell on a portion of the sidewalk adjacent to the Popeyes restaurant. He testified that the Dunkin’ Donuts was located further down the sidewalk from Popeyes.
 
In opposition to the motion, the plaintiff argued that the employees of Popeyes and Donut Corp. would occasionally help each other while removing snow on their respective portions of the sidewalk.  Despite this testimony, the court granted the motion and the plaintiff appealed. The Appellate Division upheld the decision and concluded Donut Corp. established it owed no duty of care to the plaintiff with respect to the subject portion of the sidewalk, inasmuch as it neither owned nor leased the property adjacent to where the decedent allegedly fell.  In support of its motion, Donut Corp. was not obligated to affirmatively establish that none of its employees assisted in snow removal efforts in the days prior to the decedent’s accident. Furthermore, the plaintiff failed to submit evidence that employees from Donut Corp. engaged in snow removal efforts on the subject portion of the sidewalk prior to the decedent’s accident, and that any such efforts created or exacerbated an existing hazard.

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

February.  Often the most beautiful and peculiar weather month in our corner of the globe.  It’s in the 40s and raining as I write this.  We’ve had cold, relative warmth, a 24-36 hour temperature swing of 60°s, significant snow (as usual, all dependent on where you live in western New York), ice jams and screaming headlines warning/celebrating of an impending apocalypse – the National Weather Service utters the word “blizzard” and it’s Christmas, New Years, Easter, Halloween and their Sweet 16 for the local media.  For those of you wondering, a blizzard is officially defined as a storm which contains (1) large amounts of snow or blowing snow, coupled with winds exceeding 35 mph and visibility of less than ¼ of a mile for a period of three hours or more.  Most people seem to be surprised the definition does not require any measurable snow fall.  In western New York, all snow storms are measured against the Blizzard of ’77, which shut the area down for several weeks. That storm hit on a Friday and the forecast was bad enough that schools were closed.  Although the storm ended on Sunday, that evening they announced all schools were closed for the week, with the same thing occurring the next weekend, and, if I remember correctly, a portion of the 3^rd week as well.  I’m sure my 11-year-old’s view of that extended vacation did not match my mother’s.  A fun fact is that the Blizzard of ’77 only brought about a foot of new snow over the two days or so the storm actually raged.  The problem was the storm’s heavy, sustained winds saw fit to move the three feet of loose powder sitting on miles and miles of frozen Lake Erie onto land.
 
Musically speaking, check out the new Bob Mould record “Sunshine Rock,” released last week.  Don’t let the peppy title fool you, this is the hard charging and literate Mould we all love.  I’m looking forward to seeing Chuck Prophet next week.  Prophet has been around a while, starting with the band Green on Red in the 1980s.  He is a gifted songwriter whose sound is equal parts singer-songwriter, bar band and garage rock.  He is one of those artists whose past work, regardless of how far back you go, never sounds dated.  
 
I look at four cases this month.  First up is a late notice of claim case, looking at both what constitutes a reasonable excuse for the late filing and the whether the incident report gave the putative defendant notice.  Next is a pair of cases looking at what constitutes prior written notice.  The final case looks at the City of New York’s potential liability where a student ignored a crossing guard’s instructions on where to cross a street.
 
February 6, 2019       McFarland v. City of New York, et al.
Appellate Division, Second Department
Application to serve a late Notice of Claim denied.  Ignorance of the filing requirement is not a reasonable excuse.  An incident report that does not identify the cause for the petitioner’s fall does not provide the putative defendant with the essential facts underlying petitioner’s claim.
 
McFarland was a sanitation worker who slipped and fell in a New York City Department of Sanitation garage.  Ten months after the accident, he brought a petition to serve a late notice of claim.  On appeal, the Appellate Division, Second Department upheld the trial court’s denial of the application.  In affirming, the appellate court looked at whether petitioner provided a reasonable excuse for his delay in filing and whether the potential defendants’ possessed the requisite knowledge of the basis of the claim.
 
McFarland acknowledged his lack of awareness of the Notice of Claim requirements does not constitute a reasonable excuse.  In pointing to the lack of a reasonable excuse, the court did not make the usual citations to case law holding that a lack of a reasonable excuse need not be determinative.  The decision does not make clear when counsel was retained and whether it was counsel or client that lacked awareness of the Notice of Claim requirements.
 
To support his claim that the municipal entities acquired actual knowledge of the essential facts upon which the potential claim would be based, petitioner pointed to an incident report prepared shortly after his fall.  That report stated plaintiff had fallen on the floor of the garage and had a seizure.  Missing was what the court considered crucial information – McFarland claimed a greasy substance on the floor was the cause of his fall and the report contained no reference of any sort of greasy material (or for that matter, any other substance) on the floor causing or contributing to the fall.  Without that information, the report could not be considered to provide the proposed defendants with the required knowledge.
 
 
January 17, 2019       Wageningen v. City of Ithaca, et al.
Appellate Division, Third Department
Paved trail was subject to city’s prior written notice statute.  Email to Public Works found to constitute a question of fact on the question of whether the City received the required prior written notice.

Plaintiff’s decedent sustained fatal injuries when he fell from a paved trail, owned by the City of Ithaca, into an adjacent gorge.  In response to the plaintiff’s complaint, the defendant City moved for summary judgment, arguing that the trail was subject to its prior written notice statute and that no such notice had been received.
 
The court first determined that since the “paved walkway connects two public thoroughfares and affords individuals a general right of passage between them,” it was the functional equivalent of a sidewalk or highway and subject to the prior written notice requirement.
 
The court then turned to whether the City had received notice, finding that the City met its burden of showing that it had not received written notice specific to the conditions at location where the decedent had fallen.  In response, the plaintiffs pointed to the police report for the underlying incident that described broken pavement and gaps in the sidewalk, as well as damaged railings and showed that the City, prior to the decedent’s accident, had received “numerous written complaints” about the condition of the trail generally and had sent personnel to assess the trail’s condition.  One of these written complaints was an email regarding the condition of the trail, sent to an Assistant Superintendent of Public Works 10-11 months prior to the accident.  That assistant testified he had “probably” forwarded the email to the Superintendent of Public Works, one of the individuals identified in the City’s prior written notice statute to whom written notice was to be sent.  That email included a map and photographs that appeared to reference the area of the underlying accident.
 
The court found, viewing the evidence in a light most favorable to the plaintiff, that the email raised a question of fact regarding prior written notice because, while it did not identify the specific condition, it “reasonably” identified the area of the alleged defects.
 
 
February 6, 2019       Bochner v. Town of Monroe, et al.
Appellate Division, Second Department
Written documentation from the village’s Superintendent of Public Works to the Village Clerk raised a question of fact whether the village had received the requisite prior written notice.
 
Plaintiff sued the Village of Kiryas Joel of injuries allegedly sustained as a result of conditions on a village street. The Village’s motion for summary judgment showed that it had not received any written notice from any citizen regarding the allegedly dangerous condition(s).  However, the Village’s motion papers included a pair of “worksheets” that had been prepared by the Village’s Superintendent of Public Works and then emailed, several weeks prior to the underlying accident, to the Village Clerk.  The Superintendent of Public Works and Village Clerk were the two village officers to whom any written notice, as required by the Village’s prior written notice law, was to be sent.  The court found this email met the requirement of prior written notice.  This left the question of whether these documents identified the allegedly dangerous conditions cited by plaintiff.  The court found a question of fact, citing to the rule holding written notice that reasonably identifies defects generally in the area where the accident occurred may constitute notice of the condition complained of by the plaintiff.
 
 
February 6, 2019       K.A. v. City of New York, et al.
Appellate Division, Second Department
The special duty that existed between the City’s crossing guard and student was not breached when the student was injured while crossing in the middle of the block, despite being told by the crossing guard to cross at the nearby crosswalk.
 
Plaintiff was a 6^th grade student who was injured when she was struck by a car while crossing the street after leaving her school at the end of the school day.  The City had positioned a crossing guard outside the school to facilitate students crossing the street after leaving school.  Plaintiff crossed in the middle of the street, despite being told by the crossing guard to cross at the sidewalk.
 
The court first found that a special duty existed between the guard and the student.  As a general rule, a municipality will not be liable for an alleged failure to provide police protection or similar services absent a special relationship a relationship that requires four elements.  Those are (1) the assumption, by promise or action, of an affirmative duty to act on behalf of the injured person; (2) knowledge by the municipal actor that inaction could lead to harm; (3) direct contact between the municipal actor and the injured person; and (4) the injured person’s justifiable reliance on the municipality's affirmative undertaking. 
 
Because the plaintiff ignored the crossing guard’s directions to use the crosswalk, the court found the City had not breached its duty to the plaintiff and was therefore entitled to summary judgment.  While it would not change the result, I’m not sure I follow the court’s reasoning, since the admitted failure to follow the guard’s direction would seem to show that the fourth required element had not been met, meaning that plaintiff had not established the existence of a special relationship.

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

I have lived in Buffalo for the majority of my life, so I am no stranger to harsh winters.  This winter however has been exceptionally harsh.  It’s not so much the snow, but the constantly changing weather patterns and extreme temperatures that have been such a downer.  Two feet of snow in 24 hours we can handle, but combine that with high winds, temperatures in the single digits and zero visibility, and the result is mandatory driving bans and three days of cancelled school.  Temperatures then rose dramatically (50 degree fluctuation in one day), causing major flooding, high winds, and power outages.  Last night was an ice storm with zero visibility.  We’ll see what tomorrow brings…probably a monsoon.

There are two interesting lead paint decisions this month from the First Department addressing a defendant’s burden of proof on a motion for summary judgment. 

In upstate lead paint news, Lipsitz & Ponterio did take a verdict in a bench trial before Judge Ark in Monroe County against the Rochester Municipal Housing Authority.  The judge awarded a total of $350,000 to two lead paint plaintiffs, one with a lead level in the mid-teens, and the other in the low 20’s.  That’s pretty much been the market rate for these claims. 

In upstate asbestos news, an agreement has been reached to allow Justice Aulisi to continue to preside over the asbestos dockets for the 3^rd, 4^th, and 6^th judicial districts as a J.H.O.  While this is a good short-term solution as Judge Aulisi does a masterful job managing this large and complex docket, a long-term solution still needs to be addressed as moving asbestos cases to an individual judicial assignment basis would wreak havoc. 

And now for this month’s Valentine ’s Day dad joke:

What did the stamp say to the valentine card?

Stick with me and we'll go places!


1/17/19            Hauerstock v Barclay St. Realty LLC
First Department
Building owner subject to liability for antique decorative columns that contained lead-based paint, while interior designer is not.

This lead paint claim is a little unique in that it involved decorative antique columns that were placed in residential building lobby.  The First Department affirmed, finding that the Supreme Court correctly declined to dismiss plaintiffs' claims for common-law negligence and pursuant to Multiple Dwelling Law § 78 as against the property owner and manager as they failed to establish prima facie that the antique columns which they purchased and placed in the building's lobby were in reasonably safe condition, and that they lacked actual and constructive notice that the columns contained lead-based paint. 

The claims against the interior design firm, SGI, were dismissed as SGI was a casual seller of the subject columns, and therefore not subject to strict products liability.   The record demonstrates that its sale of the subject columns was an incidental part of its interior design services, and that SGI was not regularly engaged in the procurement or sale of such artifacts or antiques.  Since the record demonstrates that SGI did not know that the subject column contained lead-based paint at the time that it procured it for the owner, SGI did not breach its duty, as a casual seller, to warn of known defects that are not obvious or readily discernible.


1/31/19            A.I. v. New York City Housing Authority
First Department
Defendant cannot meet burden for summary judgment with lead testing of premises performed three years post alleged exposure.

The First Department reversed, finding that the Supreme Court erred in finding, as a matter of law, that the NYCHA demonstrated that no hazardous condition existed in the apartment.   The infant plaintiff was diagnosed with an elevated blood lead level while a tenant of the NYCHA in 2002.  The apartment was tested for lead-based paint on April 26, 2005 by Housing Environmental Services, Inc. (HES), a company retained by NYCHA. The report found no actionable level of lead-based paint in the apartment.   NYCHA attempted to meet its burden by invoking this 2005 report.  The agency's reliance on that report was misplaced. The probative value of the 2005 report is dependent on NYCHA's assumption that the lead condition of the apartment in 2005 was the same as the lead condition of the apartment three years earlier. This assumption, however, is not supported by any evidence.  The record contained evidence that there were paint chips and dust in the apartment before 2003, that the infant plaintiff had elevated lead levels in 2002 and 2003, and that abatement efforts were made in the apartment in 2003.

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

Greeting Subscribers!
 
Today may be the last weekend (although my wife would disagree) that my fellow law school basketball players and I head to Springfield, Mass for our annual basketball tournament. It is one of my favorite weekends of the year and has been more challenging each year as the competition continues to improve while we get older. This month, I report on two discovery cases, one of which involves granting the defense access to plaintiff’s social media accounts and devices in a case involving a basketball player, which is an important and useful tool not to be overlooked! See you next month, as we eagerly await the arrival of spring.
 
Marc
 

02/08/19          Beck v City of Niagara Falls
Appellate Division, Fourth Department
Summary judgment premature where discovery, including party depositions, had not been completed.

Plaintiff was working for NMCC, assisting a coworker in using a forklift and a clamp to transport a steel beam to a different location when the forklift struck one or more potholes and the beam fell, causing injury to plaintiff’s foot. The trial court denied defendant’s cross-motion for summary judgment on the grounds that plaintiff failed to identify the cause and location of his incident.
 
The Fourth Department unanimously affirmed, finding plaintiff's opposition response containing written statements from three witnesses and NMCC’s accident report, established that testimony regarding both the specific cause and location of the incident could be obtained through discovery, and that “facts essential to oppose the cross-motion were in the movant’s exclusive knowledge and possession and could be obtained through discovery.”
 

02/24/19          Vasquez-Santos v Mathew
Appellate Division, First Department
Defense counsel entitled to appropriately limited in time and in subject matter social media authorizations and devices to rebut plaintiff claims and defend against the alleged injuries.

Plaintiff, a former semi-professional basketball player, claims to be disabled as a result of an accident such that he can no longer play. At his deposition, defense counsel showed him pictures from his social media account depicting him playing basketball that were posted after his accident, but plaintiff explained they were taken from games before the accident. The trial court denied defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities.
 
The First Department unanimously reversed, finding defendant is entitled to discovery as plaintiff was “tagged” in the photograph, thus allowing him access to the photographs although plaintiff did not take them, and others were sent to his phone. The Court held plaintiff’s prior response to court orders, which consisted of a HIPPA authorization refused by Facebook, immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations.
 
However, the Court limited in time access to plaintiff’s accounts and devices to only those items posted or sent after the accident, and to those items discussing or showing defendant engaged in basketball or other similar physical activities.

Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Marina A. Barci [email protected]
 

Dear Readers,
 
It is officially mid-February, which means winter is almost over right? The groundhog saw his shadow, so that adds a glimmer of hope. But, we never know what’s going to happen here in WNY. Personally, I’m a fan of winter when there is snow and it is not always below freezing. With winter inevitably come more decisions from the courts, as they too are hunkered down trying to escape the cold. That being said, there are finally some new elevator liability cases that I report to you on, as well as one procedural case this month.
 
Elevator/Escalator Accidents
 
01/22/19          Giancola v. Yale Club of New York City
Appellate Division, First Department
Question of fact exists as to building owner’s negligence, preventing them from obtaining summary judgment on that issue.
 
Plaintiff was an elevator mechanic who was walking across a particle board that covered an escape hatch on top of the elevator car where he was required to work when the board collapsed and he fell through the hatch. Defendant Yale Club failed to demonstrate that it was free from negligence in connection with plaintiff’s fall through the escape hatch on its elevator where plaintiff was working, precluding them from obtaining summary judgment on the matter.
 

01/23/19          Romero v. Waterfront N.Y.
Appellate Division, Second Department
Defendant was on notice of the dangerous condition when their own contractors sent them proposals on how to fix it.
 
Plaintiff was operating a manually controlled freight elevator in a building owned by Waterfront. He was employed by Hudson Yards Catering, a tenant in the building, and was bringing the elevator up to the 8th floor when the heel of his foot somehow became caught between the 4th floor landing and the moving elevator shaft, allegedly sustaining serious injuries to his left foot and ankle as a result. Waterfront moved for summary judgment to dismiss the complaint against them. In response, plaintiff argued that Waterfront’s failure to install a gate on the interior side of the freight elevator constituted a defective condition.
 
It was undisputed that the elevator was in compliance with all applicable rules, regulations and codes at the time of the incident. The absence of a code violation alone is not dispositive of allegations based on negligence principles. However, plaintiff was able to show that Waterfront was on notice of the dangerous condition of the elevator. Waterfront was provided with proposals from their own elevator service company prior to the accident that stated because there was no gate on the inside of the elevator, an extremely dangerous condition existed. Accordingly, summary judgment to Waterfront was not appropriate.
 

01/31/19          Hobbs v. New York City Hous. Auth.
Appellate Division, First Department
Defendant did not submit adequate evidence that they lacked actual or constructive notice of the hazardous condition.
 
The plaintiff was in an elevator in one of defendant’s building sometime between 12:00-1:00am when he slipped on urine [gross!] and fell. Defendant moved for summary judgment on the basis that they lacked actual or constructive knowledge of the hazardous condition. In support of this motion, they submitted evidence that the custodians were expected to inspect and clean both elevators in the building twice per day and that they often responded to reports of urine, which they mopped up but did not record. However, they did not submit any evidence of the last time the elevator that plaintiff fell in was inspected or cleaned. Therefore, the court found that the defendant did not meet their burden to prove they lacked actual or constructive knowledge and denied the motion.
 

Animal Liability
 
No new cases to report on here this month.
 

General Litigation Issues
 
02/01/19          Powell v. Cent. New York Reg'l Transportation Auth.
Appellate Division, Fourth Department
Motion for leave to serve late notice of appeal denied.
 
Plaintiff was allegedly injured as she exited a bus owned and operated by the defendant. As the defendant is a municipal agency, a notice of claim is required to put them on notice of any claim against them within 90 days of the claim accruing. The 90 day requirement may be extended if a court finds that “upon consideration of all relevant facts and circumstances…1) the claimant has shown reasonable excuse for the delay, 2) the respondent had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and 3) whether the delay would cause substantial prejudice to the respondent.” It is the claimant’s responsibility to demonstrate that the respondent had actual, timely knowledge of the injuries or damages claimed.
 
In this case, the plaintiff failed to meet her burden of establishing that the respondent had actual knowledge of the incident at all, including her injuries. The record showed that plaintiff did not inform the bus driver when the accident allegedly occurred, and it was not obvious that she was injured. The only communication from plaintiff to defendant at all during the 90 day period was an anonymous phone call she made to respondent’s general phone number, during which no indication was made that an accident occurred or that she was injured. Further, her notice of claim incorrectly identified the date of the alleged accident. Based on these facts and circumstances, the court refused to allow plaintiff to serve a late notice of claim.

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