Premises Pointers - Volume III, No. 1


Premises Pointers
Watch your step!

Volume III, No. 1
Monday, June 17, 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



First, Happy Father’s Day to all!  Hope you had a great day celebrating yesterday. 
This month we are launching a new blog authored by attorney Alice A. Truman, who is an associate in our litigation department. Alice focuses her practice in the areas of automobile and transportation negligence and premises liability.  Alice will be covering a variety of litigation topics with helpful practice pointers.  Check out her first installment on how to dismiss a claim involving a deceased plaintiff with no estate substitution by clicking on this link.
On the trial and verdict front, Johnson & Johnson was hit again – this time with $300 million dollars in punitive damages by a New York jury in favor of a woman who claims prolonged exposure to asbestos-containing talcum powder causing her to develop mesothelioma.  The verdict comes after the same jury awarded the plaintiff $25 million dollars. Click here for New York Law Journal coverage of the verdict.
The Appellate Courts have been busy in anticipation of the summer holiday so there is no shortage of cases this month and we also have a legislative update from Anastasia McCarthy, who is staying on top of what is coming out of Albany these days.  In the coming summer months, when the Appellate Courts are down and cases are a bit more sparse, we will be bringing you a special feature on transportation industry trends, an employment law update and a shout out from the Hurwitz & Fine attorneys working in our Long Island office.  Stay tuned!
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]. Send Dan Kohane ([email protected]) an e-mail if you would like to receive Coverage Pointers and let David Adams ([email protected]) know if you’re interested in Labor Law Pointers.  Please feel free to reach out.  Questions and comments always welcome!




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

This month, we have two cases from Appellate Courts where the decisions were not unanimous – in the Fourth Department the dissenting judges concluded that the determination of whether a bathroom door at a local McDonald’s was unreasonably dangerous is a question of fact for the jury and may even require consideration of the extent to which the defendants’ duty to maintain the premises requires them to take into account the “well-known propensities of children to climb about and play.”  Since there are two dissenters, there is a good chance this one will go up to the Court of Appeals.  Several of the remaining cases highlight the evidentiary considerations when both moving for and opposing summary judgment and lastly, we have a Federal Court case on the pitfalls of removal when the amount in controversy has not been properly established.
5/21/19            Feliciano v. Target Corporation
United State District Court, Eastern District of New York
The District Court sua sponte remanded lawsuit to state court based on insufficient evidence submitted by defendant establishing the amount in controversy exceeds $75,000.

Defendant attempted to remove the case to Federal Court by filing a notice of removal.  In order to establish the amount in controversy requirement, defendant served a notice to admit on plaintiff requesting the plaintiff admit the amount in controversy exceeds $75,000.  When plaintiff failed to respond to the notice to admit in the statutory time-period, defendant removed the case and relied on plaintiff’s failure to repond as the admission.  The court noted that defendant could have used another discovery device – CPLR §3017 – which provides that a defendant “may at any time request a supplemental demand setting forth the total damages to which the pleader deems himself entitled.”  The court stated that “rather than improperly utilizing the Notice to Admit and prematurely removing the action to this Court, Defendant should have availed itself of this provision, pursuant to which the state court, on motion, is to order the Plaintiff to respond to a demand for total damages.”

5/22/19            Gatto v. Coinmach Corp.
Appellate Division, Second Department
Defendant’s motion for summary judgment denied because the record lacked evidence to support defendant’s no notice argument – however one judge dissented and found testimony for building superintendent sufficient to satisfy defendant’s burden.

The plaintiff alleges that she fell in the laundry room in her apartment building as she was trying to open the soap tray of the washing machine she was using, which was on a platform 10¾ inches high.   There is a step in front of the platform, which is 5⅛ inches high.  Plaintiff alleges that when she pulled the soap tray out of the washing machine and the tray did not stop, as it was supposed to, but rather came all the way out, causing her to fall backward.  Defendant Coinmach was the lessee of the laundry room.  The superintendent of the building testified that a clip was supposed to prevent the soap tray from sliding out of the washing machine.  While the court did not find the height of the machine to be an actionable defect, the majority found the soap tray was a defective condition.  Since Coinmach did not perform any routine maintenance on the machines and only responded to service calls, Coinmach was not able to demonstrate it lacked constructive notice of the condition.  The Appellate Division reversed the trial court’s decision granting Coinmach’s motion.  However, there was one dissenting judge who found that Coinmach submitted evidence demonstrating that it did not create or have actual or constructive notice of such condition. Through the deposition testimony of the building superintendent and the deposition testimony of an employee of Coinmach, as well as service logs, Coinmach established that the washing machines in the laundry room were regularly monitored and cleaned, and that there was no record of any prior complaints about the soap tray before the accident.  The building superintendent testified that he would check the laundry room twice per day to make sure the machines were functioning, and that every morning, at 8:30 a.m., the porter would clean the exterior of the washing machines, which included pulling out the soap trays and wiping them down. In addition, the superintendent testified that the porter would report to him if there were any maintenance issues with the washing machines, and that, prior to the injured plaintiff’s accident, he was not told of any issues with the soap trays. Additionally, Coinmach’s area vice president testified that prior to the accident, he was not aware of any complaints about the soap trays pulling free from the machines, and that the service call records did not note any issues with regard to the subject soap tray prior to the incident.

5/28/19            Valenta v. Spring Street Natural
Appellate Division, First Department
Greasy substance on restaurant floor deemed transient condition which owner did not have notice of - Plaintiff’s complaint dismissed.

Restaurant prevailed on summary judgment based on evidence establishing it did not have notice of condition.  Significantly, the proof by defendant consisted of the following:  1.)  Defendant’s manager received no complaints concerning the floor and saw nothing on the floor when he inspected it 10 minutes before the fall; 2.) defendant’s porter cleaned the floor every night with a solution of water and vinegar.  Finally, the court concluded that “the wet or greasy substance on the floor of a busy restaurant was a transient condition that could have appeared at any point after the porter finished cleaning the floors in the morning.

5/28/19            Veltre v. Rainbow Convenience Store, Inc.
Appellate Division, First Department
Defendants granted summary judgment in slip and fall case because plaintiff did not fall on portion of sidewalk they were responsible for – plaintiff’s attempt at using an UNSWORN accident report to oppose defendants’ motion was insufficient.

Defendant and Third-Party Defendant established prima facie that plaintiff did not slip and fall on snow or ice on the sidewalk abutting their premises, by submitting the deposition testimony stating that the accident occurred in front of the adjacent premises and therefore they were not responsible for maintaining the portion of the sidewalk where plaintiff fell.  Significantly, the accident report plaintiff relied upon, in which an employee of Rainbow Convenience Store stated that he saw plaintiff attempting to walk over a mound of snow in front of the sidewalk abutting PEC and Walkinstown, Inc.’s premises, was unsworn and thus inadmissible.

6/14/19            Tamara v. Derico of East Amherst Corp., d/b/a McDonald’s
Appellate Division, Fourth Department
Bathroom door at McDonald’s not unreasonably dangerous and plaintiffs’ complaint dismissed – but two justices dissented leaving open the possibility of an appeal to the Court of Appeals.

The two-year old infant plaintiff’s finger became caught in the space between a bathroom stall door and its doorjamb at local McDonald’s.  The injury occurred when the girl’s brother slammed a bathroom stall door and the girl’s finger was caught between the door and the doorjamb, an area referred to as a “pinch point,” at defendants’ restaurant.  The trial granted defendants’ motion for summary judgment dismissing the complaint and Fourth Department affirmed, but two justices dissented leaving open the opportunity for plaintiffs to appeal as of right to the Court of Appeals.  The majority found that the affidavit of plaintiffs’ expert was “speculative and not sufficiently probative to defeat defendants’ motion for summary judgment’ and that the bathroom stall door was also open and obvious, and therefore defendants had no duty to warn of any dangers.  Justices Whelan and Curran dissented on the basis defendants failed to meet their initial burden of showing that the subject door did not constitute an unreasonably dangerous condition.  The two dissenting justices found the testimony of a construction manager for McDonald’s Corporation, who stated that the corporation installs a device known as a “finger guard” on the doors of newly constructed restaurants to prevent pinch-point injuries, raises a question of fact regarding whether defendants were on notice that the door presented an unreasonably dangerous condition.  They further held that “the determination whether a condition is unreasonably dangerous “is generally a question of fact for the jury” and may, under the circumstances, require consideration of the extent to which the defendants’ duty to maintain a safe premises requires them to take into account the “well-known propensities of children to climb about and play.”


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

Greetings.  I haven’t come across any new music in the last month or so.  I’m sure its out there – I just haven’t had time to look for it.  I have attended a couple of good shows recently – Eilen Jewell and Ben Nichols.  Jewell fits into the Americana/traditional country/bar rock category.  She’s got a killer voice.    Check out Live at the Narrows.  Her secret weapon, guitarist Jerry Miller, is all over that record.  Nichols is the gravelly voiced front man for Lucero.  Lucero is plays story telling bar rock, personal songs about drinking, love lost and won and life on the road.  Every year or so, he goes out on a short solo tour.  Two hours of him playing off a set list and taking requests.  Nichols is very down to earth and personable and to hear the stories behind songs is great.  Good stuff.

Case wise, we have a trial court decision holding, contrary to long standing precedent, that a property owner might be responsible for harm to a guest who died at the property owner’s home after becoming intoxicated at the home, a prior written notice case where very clear and specific verbal notice of the alleged hazard was not enough to save the plaintiff from summary judgment,  a prior written notice case where a police report did serve to give notice to a municipal defendant and a case where plaintiff’s failure to get court permission prior to  serving a notice of claim was fatal, even though the defendant did not immediately object when the notice was received.
Enjoy.  TCB
June 10, 2019             Estate of De Leo v. Bauman
New York Supreme Court – Nassau County
Question of fact whether property owner responsible for the death of an intoxicated guest on his property.

This Supreme Court decision arises from the drowning death at the defendant’s property.  Plaintiff’s decedent was a 54 year old woman who drowned in a hot tub at the defendant’s property.  The decedent, a close and longtime friend of the defendants, was both extremely intoxicated (her BAC level was .25%) and under the influence of prescription anti-anxiety and sedative medications when she died.  Her estate sued, arguing the defendant had breached a duty to supervise or prevent her from harm while on the property.

Longstanding case law holds that while a property owner has a duty to protect a guest from harm while on the property, there is no duty to protect a person from injury or harm that results from their own intoxications.  The court found that the facts of this case were an exception to this rule, pointing to a property owner’s duty to take reasonable steps to protect a guest from harm.  The court found that the property owner awareness of the decedent’s intoxicated and drugged condition, coupled with their ability to take reasonable steps to exercise supervision and control over the decedent’s use of the property served  as an exception to the longstanding voluntary intoxication bar to recovery.

The court then found a question of fact as to whether the property owner had breached this duty.  I suspect that this decision will be appealed.

June 13, 2019             Cook v. City of Amsterdam
Appellate Division, 3rd Dept.
Specific verbal notice not enough to meet the requirements of the City’s prior written notice law.

Plaintiff fell in a hole in a roadway located within the City of Amsterdam and subsequently brought a claim against the City for personal injuries.  Following discovery, the City moved for summary judgment on the basis that it had not received prior written notice of the alleged hazard, as required by the City’s prior written notice statute.  Supporting the motion were affidavits from the records custodians at both the City Clerk’s Office and the Department of Public Works.  In response, plaintiff submitted proof that the City had received verbal notice of the alleged hazard on two occasions prior to his fall.  The City was granted summary judgment, as “verbal reports do not satisfy the prior written notice requirements.”

I looked up the appellate papers for this matter – according to the plaintiff’s brief on appeal, several months prior his fall, the City has placed sawhorses on the roadway in the area where he fell to guard or warn about “cracking, crumbling and caving in” pavement – plaintiff alleged that one of the sawhorses was 15-20 feet from where he fell.  He also submitted testimony from a named witness who stated that she reported the conditions along the roadway and had then met with an employee of the City’s Department of Public Works to show him the deteriorating edge of the roadway.  The City did not dispute it has placed the sawhorses in the area where plaintiff fell.

June 12, 2019             ML v. City of New York
Appellate Division, 2nd Dept.
Police report attached to a notice of claim gave the defendant the facts required as part of a notice of claim.

Plaintiff was injured when the school bus on which he was riding was involved in a motor vehicle accident. A timely notice of claim was then filed against the City, to which was attached the police report from the accident.  That report indicated a missing stop was a cause of the accident.  Plaintiff brought a motion to serve a motion to amend the previously filed notice of claim, or in the alternative to serve late notice of claim.  The amended/new notice of claim expanded on the theories of liability.  The City opposed the motion, arguing that it has not timely received notice of the claim.

This was rejected – while a police report from an accident is typically not considered notice of the facts and circumstances underlying a claim, the court found that the attachment of the police report to the original, timely filed notice of claim did give the defendant notice because that report identified that cause of the accident – i.e. the missing stop sign.  The mere fact that the report had been prepared itself was not notice – providing the report to the defendant did give the defendant notice.

June 5, 2019               Townsend v. City of New York
Appellate Division, 2nd Dept.
Failure to seek court leave before serving notice of claim fatal, even when defendant did not object when the notice was received.
Plaintiff sought to recover for alleged medical malpractice that occurred during treatment at the Kings County Medical Center, a hospital owned and operated by the New York City Health and Hospitals Corporation (HHC).

Plaintiff timely filed a notice of claim with the City of New York.  Although beyond the 90 days set for filing a notice of claim, plaintiff, without seeking leave, filed a notice of claim on the HHC days before the one year and 90 day statute of limitations expired.  The case then languished for nearly 15 years, when the HHC moved to dismiss because the plaintiff had failed to timely serve the notice of claim.  Plaintiff’s cross moved to serve a late notice of claim or, in the alternative, to have the previously served notice deemed timely nunc pro tunc.

HHC motion was granted, with Court noting that the City and HHC were distinct legal entities, each entitled to their own notice of claim, and that the notice of claim that had been served on the HHC shortly before the statute of limitations was a nullity because it was done without leave of the court.  The court also found that because the one year and 90 day statute had expired, it lacked the authority to make a nunc pro tunc ruling.  The court also found the plaintiff’s argument that the HHC, by not moving earlier, was not estopped from raising the untimeliness of the notice of claim.


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

Well June is here and school is almost out.  The routine of sending three kids to the same place every day for the same amount of time is over.  My twin boys will be “graduating” from kindergarten.  Not sure why kindergarten graduation is a thing, since they will be at the same school for another eight years?  At least it’s the same day as their birthday, so we can combine parties.

Ironically, I am writing this edition from gorgeous Seattle, WA, producing a corporate witness for deposition.  It’s a sunny 90 degrees here, while my wife reports from back home at my kids’ soccer practice that it’s rainy and miserable.  Sometimes there are perks to this job.  Also, a shout out to all the Dads out there, Happy Father’s Day!  Please feel free to share pictures of all the clay molded paperweights, art, and other gifts your children have crafted at school.

There is quite a bit of toxic tort news this month, most notably, potential legislation to ban lead paint exclusions from liability policies in New York.

This is obviously very concerning to carriers.  This bill has just passed the Assembly and will be in the hands of the Senate.  This bill would apply to new policies, and thus cover new exposures, but would not apply retroactively to prior policies, exclusions, and exposures.  As there is still time to try to modify or amend this bill, please, please, please, send us your thoughts, concerns, and suggestions.  This is a hot political issue and it is likely that some version of the bill will pass.

There is a very interesting, and lengthy, decision from the Court of Appeals in an asbestos claim addressing the burning question of whether a large multi-story coke oven, built on site at the former Bethlehem Steel facility, is a building/structure, or a product subjecting the manufacturer to strict products liability. 

There are two First Department decisions demonstrating how difficult it is for defendants to obtain summary judgment in an asbestos claim.  It is especially difficult when prior documents contradict the moving affidavit of your corporate witness.

Lastly there is an odd decision from the First Department involving an overnight cleaning lady exposed to paint fumes.  It’s unclear what the defendant argued as the motion was denied for failure to address the issue of notice (which is the primary issue when addressing liability for a hazardous condition)?
And now for this month’s dad joke:

Why don’t fish get a summer vacation?
Because they are always in school.

6/11/19            Terwilliger v. Beazer East, Inc., et al.  
Court of Appeals
Court of Appeals addresses burning question:  Is a coke oven a product or a structure?

In a lengthy twelve-page decision that touches on nearly every aspect of product liability, the Court of Appeals addressed whether the defendant met its burden on summary judgment that the large, industrial coke ovens located in decedent’s workplace are not “products” for purposes of strict products liability, such that defendant did not owe a duty to warn of their harmful nature.
The decedent plaintiff alleged he was caused to suffer lung cancer due to asbestos exposure arising from work around the coke ovens at the former Bethlehem Steel site between 1966 and 1983. A “coke oven,” roughly 13 feet high and 1.5 feet wide, burns coal at high temperatures to create coke, a fuel then used in the production of steel. A “coke oven battery” is a collection of these individual ovens stacked in a long row to create the wall of the battery structure in which the ovens are housed. The batteries at issue here were located on the grounds of the coke oven plant, which “consisted of a number of other structures, including coal towers, coal conveyors, coke wharfs, screening stations, storage tanks, electrical substations, gas recovery systems, byproduct facilities, and quenching stations.”
The appeal pertained only to plaintiff’s second and fourth causes of action, which allege under a products liability theory that defendant Honeywell, as successor-interest to Wilputte, at all times relevant “engaged in the design, construction, maintenance, and repair of coke ovens and coke oven batteries, as well as in the sale of goods and contracting services for the construction of coke ovens” at the Lackawanna plant and “failed to disclose to plaintiff’s decedent and those similarly situated or warn them of the known dangers associated with the inhalation of coke emissions.”
Defendant moved for summary judgment, arguing that the coke ovens at issue are not products and hence, do not subject it to strict liability as a products manufacturer, and that it’s contract with Bethlehem Steel, under which it designed and built the ovens, was one for services, and that, as a service provider it is not subject to strict products liability.   
The Court of Appeals reversed the order of the Appellate Division, Fourth Department, finding that the defendant failed to meet its burden on motion that the coke ovens were not a “product.”  The Court noted that none of the prior strict products liability case law provides a clear definition of a “product,” however, it is for the court to determine as a matter of law whether something is, or is not, a product.  Intertwined with the analysis of whether something is a product is the more central question of whether the defendant manufacturer owes a duty to warn.
Thus, the Court evaluated whether the coke ovens are products within the broader context of the common-law principles of assigning a legal duty to warn.  The court’s overarching concern in assigning a duty to warn is to settle upon the most reasonable allocation of risks, burdens and costs among the parties and within society, accounting for the economic impact of a duty, pertinent scientific information, the relationship between the parties, the identity of the person or entity best positioned to avoid the harm in question, the public policy served by the presence or absence of a duty and the logical basis of a duty.  To that end, although the criteria for determining whether a duty should attach to a seller may be tied to the nature of the given transaction, the case law emphasizes governing factors such as a defendant’s control over the design of the product, its standardization, and its superior ability to know—and warn about—the dangers inherent in the product’s reasonably foreseeable uses or misuses.  
Based on the record before it, the Court of Appeals found that the defendant had not met its burden in showing that the coke ovens at issue are not products as a matter of law. Regardless of the alterations Bethlehem may have made to the scale and specifications of the battery at large, the ovens themselves served one function: the production of coke. This process was standard across all variations of coke ovens that Wilputte sold, ultimately placing the hazardous thing at issue squarely within the category of products to which liability has attached in the failure-to-warn context.  Furthermore, the record established that Wilputte was an expert designer and manufacturer in the market and sale of these coke ovens such that a duty to warn was owed. It was undisputed that Wilputte exerted full control over the manner in which the coke ovens were built. Wilputte was responsible for furnishing most if not all necessary materials in the production of the ovens, including the various parts and components of the operative machines specific to Wilputte’s proprietary design schematics. Although Bethlehem made specific requests to suit the Lackawanna plant’s needs, the coke oven designs—as evidenced in Wilputte’s advertising brochures and technical drawings—were complex and unique to Wilputte’s enterprise, and Wilputte was responsible for installing the ovens pursuant to those designs. Nothing in the record implies that Bethlehem could have created these ovens without Wilputte’s standard design and control over its product, nor could Bethlehem have altered the ovens’ hazardous nature.
The record also established that Wilputte was responsible for placing the ovens into the stream of commerce and that it derived financial benefit from its role in the production process. Indeed, by the time decedent began working for Bethlehem, Wilputte had sold hundreds of coke ovens to plants both in the United States and in Canada and Mexico. Wilputte also marketed its ovens with informational brochures showing the completed ovens and their functionality, indicating that Wilputte, not Bethlehem, was the commercial source of the product. Although the ovens were largely assembled and completed on-site, that merely speaks to the logistical realties of the market of which Wilputte had a considerable share.
Lastly, the record supported the conclusion that Wilputte was in the best position to assess the safety of the coke ovens because of its superior knowledge regarding the ovens’ intended functionality.  The brochures, technical designs, and defendant’s established market share clearly demonstrate that Wilputte could fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose, giving it the opportunity and incentive to make the ovens safe for its users at the time they were sold and built. There is no evidence in the record to suggest that decedent or Bethlehem was better-positioned to understand the dangers inherent to the coke ovens or decedent’s role as a lid man at the Lackawanna plant.
The Court expressly dismissed the defendant’s contention that because these ovens were built into the large structures that make up the oven battery, they are fixtures on real property and cannot be products as a matter of law. While these structures may be considered real property for tax purposes, other affixed taxable real property under the Real Property Tax Law, such as elevators and large turbines, have nevertheless been subject to strict products liability claims.  Defendant’s emphasis on the ovens’ size and immobility is irrelevant to the question of whether they are products for purposes of establishing a duty to warn.
The Court also similarly rejected defendant’s arguments that the contract between Bethlehem and Wilputte is a service contract which precludes liability in this case. Where a good is sold in the course of a transaction, the mere presence of a service component in that transaction does not mean that the furnished item is not a product to which a duty to warn may apply. construction services.  It is of no moment that the coke ovens at issue took many hours to build, or that the work required to complete the transaction between Bethlehem and Wilputte resembled tasks typically fulfilled by a general contractor. The apportionment of time between sale and service is not the test upon which defendant’s duty relies. Such a test ignores the inescapable fact that Wilputte crafted, marketed, and sold the coke ovens that allegedly caused the harm underlying plaintiff’s strict product liability claim.
This case provides an excellent blue print on how the courts are to address whether an alleged product is indeed a “product” for duty and liability purposes, but cautioned that each claim must be judged on its own facts and circumstances.  Interestingly, the Court of Appeals explicitly addressed the dissent’s concern that this decision would extend strict liability to general contractors who may be involved in the construction of buildings where defective products are housed. The Court reasoned that it was merely adhering to the tradition of evaluating such claims on a case-by-case basis and concluded that defendant has failed to meet its burden of establishing on this record that the article at issue is not a product.
5/9/19               Benson v .Barnes & Jones, Inc., et al.
First Department                          
5/16/19            Shanahan v Aerco Intl., Inc.
First Department                          
A tale of contradictions:  How prior records can derail a motion based on a corporate affidavit.
In Benson, defendant based its motion on its executive's affidavit and its manufacturer catalogs indicating that none of its steam traps warrant the use of flange gaskets such that they could not have contributed to plaintiff's injuries.  However, plaintiff's deposition testimony, together with Barnes & Jones's own interrogatory responses which admit that some of its pre-1975 steam traps contained asbestos gaskets, raised an issue of fact as to whether plaintiff was in fact exposed to asbestos dust while working on Barnes & Jones steam traps.
Similarly, in Shanahan, the defendant maintained that it established prima facie, through an affidavit of its principal, that it did not sell or distribute asbestos-core fire doors in the New York metropolitan area, where the decedent worked, and that therefore the decedent was not exposed to its product. The affidavit was based on the principal's personal knowledge but unaccompanied by documentation such as sales records substantiating the averment.  Not surprisingly, the court found an issue of fact since plaintiff testified explicitly to using this product in New York. Furthermore, minutes from a New York City Board of Standards meeting from 1978 contradict the defendant's principal's assertion concerning the sale of asbestos-core fire doors in New York.
5/30/19            Arias v. Recife Realty Co.,
First Department                          
Something smells: Defendant cannot win summary judgment on claim involving toxic paint fumes without presenting evidence on notice.

The First Department affirmed the denial of defendant/third-party plaintiff’s motion for summary judgment dismissing the complaint and for summary judgment on its indemnification claims against third-party defendant subcontractor Island Painting.
Plaintiff, an evening cleaner in an office building, alleges that she was injured from inhaling toxic fumes from a paint stripping product used by the third-party defendant Island Painting, the subcontractor of defendant, during a renovation project in the building.  The court found that the defendant failed to meet its burden as it submitted no evidence with respect to notice. There was evidence in the record that defendant had superintendents on site who oversaw the subcontractors’ work and that defendant had a duty to notify and warn the building owner and its occupants of hazardous work undertaken on the project site so as to safeguard the building’s occupants against exposure to such hazards. Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper and of the product’s toxicity and yet failed to warn the building owner and occupants to prevent harm to them. These issues of fact as to negligence also preclude summary judgment in defendant’s favor on its claim for contractual indemnification by Island Painting.


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

Dear Readers,
As many of you know, New York state has seen a flurry of new law making, much of which directly impacts our clients here at Hurwitz & Fine.  We have continued to follow the roll out of the Child Victims Act, particularly as the Court system begins to develop administrative rules governing claims filed during the year-long look back window opening this August.  In this month’s edition of Premises Pointers, however, I’d like to draw your attention to a new law passed just last week, which repeals religious exemptions to New York’s otherwise mandatory vaccination requirements for children entering schools and daycares throughout the state.  
What does the law now require?
School principals, teachers, owners, or other persons in charge of the school must inform the parent(s) or guardian(s) of a child seeking admission (or currently enrolled but without acceptable proof of immunization) that the child must be immunized.  More importantly, no principal, teacher, owner or other person in charge of a school can permit a child without acceptable proof of immunization to be admitted or to attend school. Students entering or attending school have 14 days to provide adequate proof of immunization (or in the case of transfer students, a maximum 30 days); alternatively, a child may enter and/or continue attending school if their parent or guardian can demonstrate that the child has had at least the first dose in each required immunization series and has age appropriate appointments scheduled to the complete the immunization series.
Who does the law impact?
Students entering or already enrolled in any daycare, Head Start, nursery school, pre-K, or public, private or parochial school.  The law also places a burden on school administrators to ensure that all students have appropriately produced proof of compliance with State vaccination requirements.
What legislative findings were attached to justify the repeal of the religious exemption?
The Bill’s sponsors in the State Assembly attached a number of interesting factual, legislative findings.  Data collected in 2013-14, 285 schools in New York had a vaccination rate below 85%; 170 of those schools had a vaccination rate lower than 70%.  According to the Centers for Disease Control, a goal of 95% vaccination is essential in preventing the spread of illness.
What exemptions exist now?
The only valid exemption from the mandatory vaccination requirements are for those children who are medically ineligible for a vaccination series.  Proof of ineligibility must be provided by the child’s physician.
When does the law go into effect?
Immediately.  Currently enrolled students previously claiming a religious exemption have 30 days to produce acceptable proof of immunization.
Can a school district and/or district personnel bear liability for the spread of illness?
In some cases, yes.  These cases are premised upon a negligence theory.  The newly passed legislation will hopefully lessen the opportunities for the spreading of illness, however, it may also allow negligence claims to arise where employees do not properly discharge their duty to keep unvaccinated children out of schools.


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

Greeting Subscribers!
Congratulations goes out to our colleague Brian Barnas, Esq. on his Raptors winning the NBA finals; respect. However, if Klay Thompson does not get injured, I believe we were headed for a Game 7. Alas, it was not the Warriors year but man, what a way to close out the final game in their long-time arena!
This month, I report on a social media case seeking access to post-accident accounts and other information to contradict a plaintiff’s claim for loss of enjoyment of life. If you have any questions about social media discovery (e.g., demands or admissibility), we have lots of great information and practice pointers, just send me an email if you want to learn more. I also report on a run-off black ice case involving a discovery motion to inspect defendants’ property, where plaintiff’s theory of liability is premised upon a diversion of water from private to public property.
Until next time…

05/21/19          Doyle v Temco Serv. Indus., Inc.
Appellate Division, First Department
In a post-Forman v Henkin decision, the First Department granted defendants’ motion to compel seeking plaintiff’s post-accident social media to rebut her claims of loss of enjoyment of life because social media is discoverable if it “contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses and other claims.”
Plaintiff allegedly slipped and fell at her work, causing, in addition to other injuries, a loss of enjoyment of life. The trial court denied defendants’ motion to compel plaintiff to provide copies of all passports held after the accident and access to any social media accounts she maintained after the accident.
The First Department unanimously reversed, citing to Forman, and granted defendants’ motion to compel to their limited demand for “only plaintiff’s post-accident social media records regarding social and recreational activities that she claims have been limited by her accident.” The Court further held the demand for passports post-accident was reasonable and relevant to plaintiff’s claim that her injuries have restricted her from traveling long distances.

06/05/19          Kayantas v Restaurant Depot, LLC
Appellate Division, Second Department
Plaintiff’s CPLR § 3126 motion to conditionally strike defendant’s answer granted where defendant failed to provide material and necessary information in response to discovery demands and defendant’s conduct justified the imposition of a conditional order of preclusion.
Plaintiff allegedly sustained injuries when he tripped and fell over a forklift in the aisle of a Restaurant Depot store owned by defendant. After two discovery motions in response to defendant’s failure to comply with discovery demands, plaintiff obtained a conditional order of preclusion if defendant did not produce a witness for a deposition by a date certain and defendant thereafter failed to do so.
The Second Department held that because defendant failed to comply with demands for material and necessary information and during litigation and demonstrated a history of lack of compliance with discovery demands by provoking two motions, it affirmed the trial court’s decision to grant the conditional order to strike defendants’ answer if the demands were compiled timely complied with.

06/12/19          Zupnick v City of New Rochelle
Appellate Division, Second Department
Plaintiff’s discovery motion seeking an inspection granted against landowners adjacent to where the accident occurred, as the main dispute is the condition of real property, and a landowner may be liable for injuries sustained from a fall on ice on a public roadway if the “ice condition was caused or created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway.”
Plaintiff allegedly was injured when he fell while bicycling due to the presence of black ice. He claims the Rizzetta defendants, who owned property near where he fell, contributed to the alleged hazard by artificially diverting water from their property into the public roadway. The trial court denied plaintiff’s motion to direct the Rozzetta defendants to permit access to their premises for the purposes of conducting and inspection, finding “the sought-after discovery is not material and necessary to plaintiff’s prosecution of this action.”
The Second Department reversed, finding the trial court improvidently denied the motion because a central issue in this litigation is the source of the water which allegedly caused the injury-producing ice condition. Although the probative value of the inspection may be weakened by time, the Court held such a temporal delay is not a basis for denying the discovery request where, as here, the inspection may still aid the parties in preparation for trial.
However, the Court limited the inspection to the exterior of the Rizzetta defendants’ property, including measuring, surveying, sampling, dye testing, testing, photographing or recording by motion pictures, if there is no damage or destruction to the property nor intrusion into the interior of the home.

06/13/19          Rinkler v 55 Motor Ave. Co., LLC
Appellate Division, Third Department
The trial court properly exercised its discretion in supervising discovery by denying defendants’ motion to preclude plaintiff’s use, “for any purpose”, of photographs taken prior to plaintiff’s deposition but not disclosed until one week after.
During discovery, defendant demanded all photographs of the accident scene of plaintiff’s slip and fall in the parking lot of defendant’s shopping center. Plaintiff gave 11 photographs to defendant during discovery and at his deposition about six months later, provided another four. Plaintiff’s counsel also advised at the deposition that additional photographs were taken of the scene a few days prior to the deposition and provided them to defendants one week later. The trial court denied defendant’s motion to preclude plaintiff from using the photographs provide after the deposition “for any purpose.”
The Second Department affirmed, as there was nothing in the record to support the conclusion that plaintiff willfully or deliberately failed to disclose the photographs prior to the deposition, which was well-before the court-ordered discovery deadline and afforded defendants an opportunity to further depose plaintiff regarding the photographs. That they were taken more than three years after the accident does not require preclusion during discovery because it only raises a question of admissibility, which must await trial. Finally, plaintiff was not required to serve defendants with a notice for discovery and inspection under CPLR §3120(1) because the photographs were taken in a public parking lot.


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

Dear Readers,
It is an exciting time of year for us here in WNY. The sun has finally decided to stick around and warm up the temperatures, allowing me to turn my heat off after having it on without interruption since October. With the sun also comes festival season, starting off with the Greek Festival two weeks ago and the Allentown Art Festival this past weekend here in Buffalo. The Allentown Art Fest is one of my favorites as there are a ton of really unique artists to peruse. I spent several hours wandering the festival and getting a really impressive sunburn, as well as some really great art. Next up is the Rochester Jazz Festival, which is always a hit, albeit a bit of a drive to enjoy.
I have no new elevator or escalator cases to report on this month, but I do have a few animal cases to tell you about. While I was searching for new animal cases, I came across this really interesting replevin action that discusses the ownership/custody of a cat. For those of you that are unfamiliar with replevin actions, they are actions to recover personal property that was allegedly wrongfully taken or detained and seek the return of the actual property itself as opposed to money damages. The case deals with Sylvester/Marshmallow the cat, discussions of what the term “property” means, and how the “best interests” standard may or may not apply. Not your typical premises liability case, but I think a stimulating property issue nonetheless. The second case I have for you is a dog bite case out of the Second Department wherein the Court addresses the vicious propensity standard versus what is considered normal canine behavior. Read on for more information. 
Until next time,

04/30/19          Finn v. Anderson
Jamestown City Court, Chautauqua County, New York
Marshmallow the cat’s true owner is…
This case requires some back story. Around September 2018, the Plaintiffs moved to Jamestown and noticed a white cat frequently wandering onto their property looking for food. To them, the cat looked very thin and had no identification tags, so they assumed the cat was a stray and named him Sylvester. The Plaintiffs began to feed Sylvester regularly and did so for several months before deciding to bring him inside. In January 2019, the Plaintiffs took Sylvester to the vet, where he was microchipped and received a number of shots and other care. The vet noted that Sylvester had not previously been chipped and estimated him to be around 4 years old. In early February 2019, Sylvester escaped the Plaintiff’s house and when they went looking for him they asked their neighbors if they had seen him. Apparently, the neighbor told the Plaintiffs that Sylvester was really Marshmallow and belonged to his girlfriend, the Defendant.
The Defendant was given Marshmallow in 2009 by a co-worker, and they have lived happily together since then. She said that Marshmallow was an “indoor/outdoor cat,” free to come and go as he liked and that other neighbors were familiar with him and regularly fed him. She was not immediately concerned when Marshmallow didn’t return home in January 2019 because he had wandered for weeks at a time before and didn’t think to ask the new neighbors about it. When her boyfriend found Marshmallow outside in February, he scooped him up and brought him home to the defendant.
The Plaintiffs argued that they were the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. The Defendant argued that she has been the rightful owner of the cat for 10 years and has fed and housed him for the duration of her ownership of him. Both parties claimed to love the cat and desire him to be a part of their family, so Plaintiffs filed this replevin action to recover possession of Sylvester a.k.a. Marshmallow from the Defendant.
Under New York law, irrespective of how strongly people feel about their pets, pets are view as personal property. In a replevin action, the standard for recovery is the one who has the “superior possessory right in the property.” Thus, it is the property rights of the parties rather than their respective abilities to care for the animal or their emotional ties to it that are ultimately determinative. However, New York and many other states have slowly tried to “de-chattelize” pets but are unwilling to extend the child custody best interests standard to them either. The Court discusses the reasons that the best interests standard has been rejected as it relates to pets including the difficulty in gauging what a pets true best interests are as there are no means of gauging an animals happiness or its feeling about a place or a person other than maybe a potential tail wag. So instead, as courts do, NY Courts have adopted a “quasi-interest based standard” that takes into consideration the intangible and highly subjective factors that are at issue when a cherished pet is the property issue, like why each party will benefit from having the animal in their life and why the animal has a better chance of prospering and being loved in their care.
This Court said that “it was time to declare that a pet should no longer be considered personal property like a table or a car,” and used what they called the test for what was “best for all concerned” (aka they took into consideration all the facts and circumstances available to them) to determine that Marshmallow (Sylvester) the cat was to remain the cat of the Defendant, as the Defendant had owned the cat for the last decade and had children that were attached to the cat. While the Court was convinced that Plaintiffs were genuinely concerned for Marshmallow/Sylvester and spent time and money on him and confused as to why the Defendant did not inquire with the Plaintiffs for the 2 weeks he was gone, they could not ignore that when the cat got out of the Plaintiff’s home he may have “voted with his feet to return to his home of ten years with the Defendant and her children.”

04/22/19          Bukhtiyarova v. Cohen
Appellate Division, Second Department
Code violations and destruction of evidence do not allow for a finding of summary judgment.
In this case, the Plaintiff allegedly sustained injuries when she was bitten by a dog residing in Cohen’s apartment and sued him, as well as the building owners, the building superintendent, and the property managers. All the defendants moved or summary judgment, arguing that the dog did not have vicious propensities, or that they did not know or had no reason to know of such alleged propensities.
As you may recall, the sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability, whereby “a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities.” Related to the building owners, superintendent, and property manager, in order to recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities; and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog. Vicious propensities are anything that a dog may do to engager the safety of a person or property of others in a certain situation, including: the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm.
Here, the building owners, superintendent, and property managers were unaware of any vicious propensities of the dog and the fact that the dog barked at her and strained on its leash toward her were insufficient to raise questions of fact to beat summary judgment, as those actions are consistent with normal canine behavior. Thus, the case was dismissed in favor of all the defendants.



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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