Premises Pointers - Volume III, No. 10


Premises Pointers
Watch your step!

Volume III, No. 10
Thursday, March 12, 2020
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
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Municipal Liability
Nursing Home & Assisted Living Facility Litigation



In today’s issue, we bring you timely and critically important information about Coronavirus from our newest addition at Hurwitz & Fine, attorney Joseph S. Brown.  Joe has joined the firm as a member and concentrates his practice in employment and general business litigation.  He regularly defends private and public sector employers in disputes involving harassment, discrimination, wage & hour claims, restrictive covenants, employment contracts, whistleblower claims, defamation, and other tort claims. Joe’s Legal Alert on Coronavirus “What Employers Need to Know About the Coronaviruscan be found here.
Attorney Anastasia McCarthy (longtime Premises Pointers contributor) is covering Coronavirus from the legislative angle along with a case on the Child Victims Act involving a rural school district’s motion to dismiss.
There is also news from the Premises Pointers team.  You may have seen the press announcements that I have been named Managing Partner at Hurwitz & Fine, P.C., effective May 1, 2020, succeeding my good friend and colleague Ann Evanko, who has given our firm, and the legal community, 12 years of steadfast and dedicated service.  Ann will continue to chair the firm’s Employment Law Practice Group working with attorneys Joe Brown and Katherine Wood.
I am honored to be entrusted with the position of Managing Partner and excited to take on these new challenges. I did want you to know that I will be continuing to practice law while serving in this role and you can feel just as confident in the dedication and commitment of our Premises Team as you have in the past.
As always, please feel free to share this newsletter with friends and colleagues.  The entire Premises Pointers team and Employment Law group are here to help in any way we can as we all navigate the ever changing and serious situation involving Coronavirus.  Stay well.

And don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Products Liability Pointers: Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, product liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of product liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Brian F. Mark at [email protected] or V. Christopher Potenza at [email protected] to subscribe.



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

3/05/20            Salomon v. United States Tennis Association
Appellate Division, First Department
Food services contractor at the U.S. Open was kept in lawsuit based on evidence it created a wet condition that caused plaintiff to fall.

Plaintiff commenced this action alleging personal injuries caused by the negligence by Levy in the performance of its obligations under an agreement with defendant United Stated Tennis Association (USTA) to provide food services, as well as to manage and clean the venues, at the U.S. Open Tennis Center where its food services were offered. Levy contends that, as a contractor, it does not owe a duty of care to plaintiff, a non-contracting third party, and that none of the exceptions to the general rule apply (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Levy demonstrated that two of the Espinal exceptions do not apply, because the terms of its food services agreement with USTA show that it did not entirely displace USTA's duty to safely maintain the premises, and there is no evidence that plaintiff relied on Levy's performance of its contractual duties. However, plaintiff's factual allegations further claimed that Levy, in the negligent performance of its food services obligations, launched an instrument of harm by creating the wet condition of the carpet next to the tiled floor where she slipped and fell.  Since there was evidence in the record that the carpet on which plaintiff walked immediately prior to her accident was wet, that Levy's own representative acknowledged that air blowers were operating in the immediate vicinity where plaintiff fell, and that the source of the watery condition in the carpet was not established, Levy could not meet its burden by relying solely on the limited duty owed by a contractor

3/09/20            Blandino v. Guerrero, et al.
Supreme Court, Bronx County, New York
It’s not all fun and games when Mister Softee comes down the street: at issue is whether, as a franchisor, Mister Softee was liable for the negligence of the franchisee.

Plaintiff was a passenger in a vehicle operated by defendant Perez. That vehicle was involved in an accident with an ice cream truck that bore a Mister Softee logo.  Plaintiff sued the driver of the vehicle in which plaintiff was a passenger (defendant Perez), the occupants of the ice cream truck (defendants Guerrero and Zambrano), and business entities associated with the ice cream truck including Mister Softee Inc.  Testimony revealed that Mister Softee Inc. is a franchise company that builds and sells specially fitted and painted ice cream trucks to Mister Softee franchisees. The Mister Softee defendants seek summary judgment dismissing the complaint arguing that they have no direct or vicarious liability for the subject accident. The Mister Softee defendants highlight that they did not own the ice cream truck at the time of the accident, and that neither defendant Guerrero nor defendant Zambrano was employed by or an agent of the Mister Softee defendants. The Mister Softee defendants highlight also that they have no contractual relationship with defendant Guerrero or defendant Zambrano. Because they are franchisors that neither owned the ice cream truck nor controlled the day-to-day operations of the truck, the Mister Softee defendants maintain that they are not liable to plaintiff.
Plaintiff opposed the Mister Softee defendants' motion as did defendants Guerrero and Zambrano arguing that issues of fact exist as to whether the Mister Softee defendants controlled the day-to-day operations of the franchisees' ice-cream-truck businesses. Defendants Guerrero and Zambrano argue too that triable issues of fact exist as to whether an apparent or ostensible agency relationship. The main subject in dispute on this motion is whether vicarious liability may be imposed on the Mister Softee defendants because they are the franchisors of the franchised business whose ice cream truck was involved in the accident. "The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee" The court ruled the Mister Softee defendants made prima facie showings that they did not exercise control over the day-to-day operations of the franchised business, generally, and did not exercise control over the manner in which the ice cream truck was driven by the franchisee and his lessees, specifically.  The motion was granted.


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

Greetings fair readers.  

For most online legal research, a basic understanding of the issue and 2-3 searches generally gets you on topic and on your way. That said, the results from even the most focused search will inevitably have a couple of cases completely off topic, such as a 2016 trial court family law/custody decision from Westchester County.  I don’t practice family law (and I’d like to keep that way). The opening paragraph, penned by Hon. Linda Christopher (now serving on the Appellate Division, Second Department bench) is proof the judge paid attention in her high school English classes.    Here’s that paragraph:
But for the fact that this case has no hero, it manifests many similarities to a Greek tragedy. The wife in this case exhibits the classic “tragic flaw”, similar to some of the Greek tragic heroes; namely “rashness”. Unfortunately, however, she has not risen from the ashes to restore peace and harmony to her family. Her acts of impulse led to her downfall and were never more apparent than when this case first appeared before the Court …

E.R.S. v. B.C.S., 51 Misc. 3d 1210 (Sup. Ct. Westchester Co. 2016)
I caught a good, high energy show by Toronto pop/punk outfit PUP (the name is supposedly taken from a band member’s grandmother's statement that playing in a band was a “pathetic use of potential”).  The good – there’s hope/guitar rock’s not dead – a sold out 1,200-person Asbury Hall crowd made up mostly of people under the age of 22, pretty good for a young band making it on word of mouth, relentless touring and good reviews.  The bad – nothing like a Friday night show with a 16+ age limit to make you feel old.  I’m sure that killed the bartenders’ tip income as well.  One cool moment – 3 of the 4 members went to school together (the latter went to school nearby).  Their school music teacher was at the show and got a shout out from the band and a thanks for at least two members' first musical instruments lessons. 
A terrific new record is Spanish Love Songs’ Brave Faces Everyone, released in early February.  Call it what you want – punk, pop punk, indie, etc.  It’s got guitars and wry, intelligent (if not morose) lyrics and that works for me. I’ve got tickets in hand for 5 solid shows in April and May.  The first week of April brings a pair of double bills – Brian Fallon (Gaslight Anthem) and Justin Townes Earl on April 4 and Bad Religion and Alkaline Trio on April 8.  May brings long time Philly punks/rockers the Bouncing Souls (with Toronto rockers Pkew Pkew Pkew as an opener – whatever’s in the water in Toronto, keep drinking it) a co-headlining bill from Dropkick Murphy’s and Rancid and a show just east of Rochester by Jason Isbell and the 400 Unit.  I’ll see Isbell every time he comes around – my vote for the most talented songwriter in rock music today.  Bering a terrific guitarist and having an absolutely killer band doesn’t suck either.
Three cases this month, two of which look at late notices of claim. The first highlights two distinct issues that can arise in those cases, the second illustrates the differences in factors considered on applications to file a late notice between General Municipal Law §50-e(5) and Court of Claims Act §10(6).  The final case looks at the “affirmative creation” exemption to prior written notice requirements and what can happen if the proof is put before the jury at trial.
Critiques, comments, musings and rants (and legal questions as well) are always welcome. 
February 13, 2020            Matter of Chodkowski v. County of Nassau, et al.
Appellate Division, Second Department
Because the issues are distinct, an order dismissing cause of action for failing to file a required notice of claim did not address whether the petitioners could seek leave to serve a late notice of claim.
County employees sought to recover on multiple employment related claims against their employer, the County of Nassau.  Several of those claims required the filing of a notice of claim, which petitioners did not do within the required 90 days.  (They did file a notice of claim within the one year and 90 statute of limitations, albeit without court permission.)    The petitioners initially filed suit in Federal court, met promptly by a defense motion seeking to dismiss those causes of action requiring a notice of claim.  The court agreed, issuing an order dismissing those claims.
The petitioners next move was to file a petition in state court for an order deeming their notice of claim, served while the motions on the federal action were pending, as timely served nunc pro tunc – essentially a petition to file a late notice of claim.  The Supreme Court, citing to the federal court decision, denied the application and the petitioners appealed.  On appeal, the Appellate Division, Second Department reversed, holding that the issue before the state court was different from that decided in federal court.  The federal court decision addressed jurisdiction – notice of claim requirements are a jurisdictional predicate, absent which a court does not have jurisdiction over the claims.  The issue in the state court action was whether the petitioners were entitled, on the facts of the case, to serve a late notice of claim. 
January 31, 2020              Phillips v. State of New York
Appellate Division, Fourth Department
Petition to serve a late claim on State of New York granted because the State was able to timely investigate the underlying accident.
Claimant was injured on at a state property, requiring him to seek recovery in the New York Court of Claims.  Court of Claims Act §10 requires an injured person to file his/her claim or intention to file a claim within 90 days of the underlying event.  As with the General Municipal Law, the Court of Claims Act, at §10(6), permits the court to allow a late filing. 
This straightforward decision highlights the differences between applications for late service between General Municipal Law §50-e(5)   and Court of Claims Act §10(6).  In addition to the looking at the excuse proffered for the delay and whether the putative defendant knew of the incident/potential claim and was/was not prejudiced by any inability to investigate, a Court of Claims judge has two significant, additional factors to consider - whether the proposed claim(s) has merit and whether the claimant has some other remedy available to them
In Phillips, the application for a late filing was denied by the Court of Claims.  On appeal, the Fourth Department stated merit was the “most significant” factor, and on the facts of this case, not all the proposed claims passed muster.  The court also noted that the claimant’s eligibility for worker’s compensation benefits was a factor that “mitigate[d} against granting claimant’s application.  However, since the state knew of and had been able to investigate the event, it was not prejudiced and the application as to the potentially meritorious claims was granted. 
February 26, 2020           Creutzberger v. County of Suffolk, et al.
Appellate Division, Second Department
(1) Making a claim is not enough – proving it is also required.  (2) Make sure the verdict sheet contains questions tailored to the claims in the suit.
Unlike the overwhelming majority of notice of claim and prior written notice decisions, this case arises from a trial and not motion practice.     Creutzberger was injured when he was separated from his bike after failing to navigate the transition between a grass path and an “elevated” boardwalk (about 5”). In his subsequent suit, Creutzberger made two claims against the County: (1) the County negligently cut the grass at the same height as the boardwalk, thereby masking the height difference, and (2) the County failed to properly illuminate the area.   The boardwalk and path fell under the County’s prior written notice statute.  Because that notice did not exist, Creutzberger argued the County affirmatively created the hazard by cutting the grass even with the boardwalk, thereby exempting his claim from the prior written notice requirement.
At trial, the only proof on the height of the grass was the testimony of a park supervisor, called by Creutzberger, that the grass was cut low to the ground and not even with the boardwalk.  At the close of plaintiff’s proof, the County moved to dismiss the grounds that Creutzberger had failed to establish a prima facia case of affirmative negligence, i.e. that the County cut the grass at the same height as the boardwalk, necessary to avoid the stricture of the prior written notice statute.  The trial court denied the motion and the jury subsequentially found the County partially at fault.
On appeal, the Appellate Division, Second Department agreed that plaintiff had failed to prove affirmative negligence, exempting his claim from the prior written notice requirement.  The problem was that the verdict sheet, despite plaintiff’s two distinct claims (the grass height and inadequate lighting), had only a single, yes or no question on the County’s culpability.  This meant the Appellate Court could not divine which theory was the basis for the jury’s verdict against the County, making a new trial on liability necessary.


Nursing Home and Assisted Living Facility Litigation
By: V. Christopher Potenza [email protected]

I am happy to be penning this column this week as Pat Curran is taking a break from fighting the good fight with some much-needed R&R.   Pat is currently wandering the Arizona desert, surely clearing his mind to fill with new and creative ways to defend our nursing home clients. 
It has been a busy month, with another successful resolution on the eve of trial.  Plaintiff’s law firm had demanded nearly a half million dollars to settle a claim against an assisted living facility in which it was alleged that an 84-year-old woman with severe dementia was punched by another resident, which led to a subdural hematoma and her eventual demise six weeks later.  Emphasizing that the patient was appropriately placed in assisted living, was properly cared for, and her injury was not traumatic but more likely a chronic subdural hematoma (which frequently occurs in older patients with brain atrophy), the case settled for a small fraction of the demand.  Even if the case does not go to trial, there is real and tangible value in preparing a strenuous defense.
The reported cases further highlight the value in a strong defense.  There is a First Department case and a New York County trial court decision in which summary judgment was granted to the defense based on the plaintiff’s expert’s failure to rebut the defense arguments.  There is also an interesting trial court decision in which the court denied damages to a domestic partner pursuant to Public Health Law 2805-q for violation of visitation rights where the healthcare decision was honored in good-faith.

February 25, 2020       Myers v. Americare Certified Special Servs. Inc. et al.
Appellate Division, First Department
Plaintiff’s failure to address decedent’s comorbidities results in summary judgment.
The First Department reversed and granted summary judgment to the defendant and dismissed the complaint.  Defendant had made a prima facie showing of entitlement to judgment as a matter of law, submitting an expert affirmation establishing that the treatment provided to plaintiff’s decedent, who had a sacral ulcer, comported with good and accepted practice, and that the failure of the ulcer to heal was a result of decedent’s many comorbidities rather than a failure on the part of the defendant.
In their opposition, plaintiff also filed an expert affirmation. This affirmation, however, set forth only general conclusions, misstatements of evidence and unsupported assertions which were insufficient to demonstrate that defendant had failed to comport with accepted medical practice, or that any such failure was a proximate cause of decedent’s injuries. Plaintiff’s expert failed to address decedent’s pre-existing conditions, or the fact that the ulcer failed to heal even after admission to a nursing care facility.

February 3, 2020         Henry v. Bezalel Rehabilitation & Nursing Center
Supreme Court, New York County
Expert’s speculative opinion paves the way for dismissal of cause of action.
Plaintiff alleged that defendants failed to timely and properly diagnose the patient with C. difficile, and that the delay in surgical treatment caused or contributed to the patient’s medical complications, as well as a claim for lack of informed consent.  In support of their motion to dismiss, defendants submitted an expert affirmation stating that the care the patient received was good and appropriate, and that there was nothing that was done or not done by them which caused or contributed to the patient’s alleged injuries. Specifically, the expert opined that by the time the condition could be diagnosed or treated, death was unavoidable.
In opposition to the motion, plaintiff submitted an expert affirmation stating that the hospital failed to provide timely and appropriate surgical intervention for the patient, and that the delay in appropriate surgery made her suffering worse and caused her to lose any reasonable opportunity for survival. However, plaintiff failed to point to any evidence supporting the claim of lack of informed consent.
The Court held that the plaintiff had met their burden for the medical malpractice cause of action but failed to produce any supporting evidence to meet the burden related to the lack of informed consent claim where the expert’s opinion was speculative and devoid of evidentiary proof. The motion was therefore granted in respect of this second cause of action only.
February 4, 2020         Delisi v. Memorial Sloan-Kettering Cancer Ctr.
Supreme Court, New York County
No damages awarded where hospital refused to allow visitation for life partner.
Plaintiff was the life partner of a patient at defendant’s facility until his death. Plaintiff asserted three causes of action for violation of Public Health Law 2805-q, tortious interference with contract and intentional infliction of emotional distress. Public Health Law 2805-q provides that “no domestic partner… shall be denied any rights of visitation of his or her domestic partner… when such rights are accorded to spouses and next of kin at any hospital, nursing home or health care facility.”
Defendant, in moving to dismiss, argued that they were immunized from liability under Public Health Law 2986(1), which states that “no health care provider or employee thereof shall be subject to criminal or civil liability… for honoring in good faith a healthcare decision by an agent.” Defendant further provided that hospital employees were acting pursuant to the directives of the patient’s health care proxy in denying plaintiff visitation, and further, that there was no statute or case permitting the spouse or next-of-kin of a patient to recover damages based on a hospital’s refusal to permit visitation.
The Court granted the motion and dismissed the complaint in its entirety.


Legislative Update for Litigators (and Friends)
By: Anastasia M. McCarthy [email protected]

Dear Readers,
There is much to write about in the world of legislation and current events.  From the various impacts of COVID-19 to the vetting of Governor Cuomo’s 2021 budget legislation, the discussion points are endless.  So, what’s new?
Lawyers and insurance carriers around the country are gearing up for what they believe will be a deluge of COVID-19 exposure and infection lawsuits in the coming months.  In fact, just yesterday, two passengers aboard a now infamous Grand Princess cruise ship filed a suit seeking compensation of $1 million dollars.  In their Complaint, the plaintiffs allege that Grand Princess knowingly “put profits over safety” and negligently exposed the ship’s passenger and crew to COVID-19 despite knowing that individuals with exposure to the virus had boarded the ship.  Experts expect more claims to follow, not just against Grand Princess, but against employers, hospitals, physicians, daycares, and virtually any other entity or place where people gather.
New Yorkers are also in the midst of budget season and this year’s budget includes numerous pieces of legislation.  Among other things, the 2021 Gubernatorial budget legislation covers topics such as the restructuring and overhaul of the New York State Court System, the Equal Rights Amendment, the legalization of gestational surrogacy, guaranteed access to paid sick leave, and a law prohibiting repeat and high-risk sex offenders from using any MTA bus or train for three years.
And of course, we continue to track the rollout of the Child Victims Act.  This month, I cover a lengthy opinion on a rural school district’s motion to dismiss. Among other things, the Court considered a now commonly advanced argument about lack of due process.

February 21, 2020
Torrey v. Portville Central School, et al.
Supreme Court, New York, Cattaraugus County
A motion to dismiss, converted to a motion for summary judgment, results in the dismissal of multiple causes of action in a CVA case (but where the lower court rejects constitutional challenges to the CVA).
Plaintiff, a former student at Portville in the late 1990’s, filed suit under the Child Victims Act, alleging that, while she was still a student in the District, she was sexually assaulted, abused, and/or had unpermitted sexual contact with a former band teacher employed the District.  The District moved to dismiss plaintiff’s claims against it.
Notably, in light of the various pieces of documentary evidence attached to the District’s motion, the Court converted the motion to dismiss into one for summary judgment. In other words, rather than determine whether the plaintiff stated her causes of action through her Complaint, the Court determined whether plaintiff actually has a cause of action.
Among other arguments, the District argued (and the Court ruled) as follows:
(1) That plaintiff failed to state a cause of action with regard to her first cause of action for negligent hiring, retention, supervision and direction, as well as her second cause of action for negligence and gross negligence, because the District lacked notice that the band teacher posed a risk of harm to the plaintiff.  Along with its underlying motion papers, the District attached an affidavit and produced documents collected during the hiring process as well as the plaintiff’s student records.  In response plaintiff produced several affidavits, which the Court viewed as “establishing that a significant dispute exists on the issue of notice.” Ultimately, the Court rejected the District’s first argument entirely and ruled that the documents produced by the District failed to establish a defense to plaintiff’s negligence claims as a matter of law.
(2) That the District was not responsible for the band teacher’s actions, as a matter of law, because the injurious conduct was outside the scope of his employment.  The Court agreed that sexual abuse was “a clear departure from [the teacher’s] scope of employment” and ruled that respondaeat superior could not be the basis of liability against the District, dismissing plaintiff’s second cause of action (negligence and gross negligence) against the District.
(3) That plaintiff failed to state a cause of action with regard to her third cause of action (breach of fiduciary duty).  The Court agreed and dismissed this cause of action, finding that the claim, as pled, was identical to the negligence claims. 
(4)  Similarly, with regard plaintiff’s fourth cause of action (breach of non-delegable duty), the District argued that the Complaint failed to identify the non-delegable duty and that the allegations set forth in support of the fourth cause of action were duplicative of the negligence causes of action. The Court agreed and dismissed the fourth cause of action as well.
(5) That plaintiff also failed to set forth a cause of action for her fifth cause of action (fraudulent concealment).  The Court determined that the Complaint failed to sufficiently allege that a misrepresentation had been made that was known to be false; that plaintiff relied upon that misrepresentation; and that the District owed a duty to the plaintiff to disclose the alleged material information in the first instance (and subsequently failed to abide by that duty).
(6) The sixth cause of action (negligent infliction of emotional distress), was dismissed as duplicative because allegations set forth in support of the claim were identical to plaintiff’s negligence claims.
(7) That the seventh cause of action, for intentional infliction of emotional distress, should not be entertained where the conduct at-issue falls within the “ambit of other traditional tort liability.”  Because the plaintiff asserted causes of action for negligence, the Court dismissed plaintiff’s seventh cause of action.
(8) Plaintiff’s eight cause of action, breach of in loco parentis, was also dismissed by the Court.  More particularly, the Court clarified that in loco parentis defines the duty owed by the District to its students in a negligence cause of action; it does not give rise to a cause of action separate and apart from a traditional negligence claim.
(9) With regard to the tenth cause of action (breach of statutory duty to report abuse under the Social Services law), the District argued that the cause of action was also duplicative of plaintiff’s negligence claims and that it is not liable under the Social Services law because it lacked notice of the underlying abuse.  The Court, however, disagreed and found that the cause action was not duplicative and, moreover, that the District failed to establish the lack of a significant dispute on the issue of whether the failure to report was knowing or willful. 
Defendant also argued that the CVA did not revive claims for breach of duty to file a mandatory report (nor gross negligence claims).  The Court again disagreed, citing to the statutory language “all civil claims or causes of action brought by any person for physical, psychological, or other injury or conduction suffered by such person as a result of conduct which would constitute a sexual offense committed against such person who was less than eighteen…such action may be commenced against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of such conduct…”
(10) With regard to the eleventh cause of action (declaring that plaintiff’s action was exempt from debt discharge in bankruptcy), the Court dismissed the claim on the grounds that (a) it was moot (the District has not declared bankruptcy) and (b) the New York State Supreme Court has no jurisdiction over bankruptcy matters. 
(11) Additionally, the District argued, and the Court agreed, that plaintiff’s punitive damages claim should be dismissed as a matter of law because a municipal entity cannot be liable for the punitive damages “’flowing from its employees’’ misconduct absent express legislative authority.”  In other words, school districts, as public corporations, cannot be assessed punitive damages absent a statutory mandate. 
(12) Finally, the District argued that the CVA deprived the District of due process provided by the New York State Constitution.  The Court categorically disagreed, citing “a claim-revival statute will justify the Due Process Clause of the State Constitution if it was enacted as a reasonable response [to] remedy an injustice.”


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

Greetings Subscribers!
March madness is indeed here, if only for the remaining college basketball conference tournaments. This month, I report on a variety of interesting cases, including spoliation, social media, and failure to appear for a continued deposition where the trial court granted defendant’s motion to strike plaintiff’s complaint under CPLR § 3126(3). The Casserta case is significant because it is the Second Department’s first time citing to Forman v Henkin, which longtime subscribers will recall is the Court of Appeal case I came out swinging with in my initial guest appearance. If you would like to chat about spoliation, social media discovery or the Casserta case, feel free to send me an email. Until next issue…

02/13/20          N. H. R. v Deer Park Union Free Sch. Dist.
Appellate Division, Second Department
Defendant’s failure to preserve video footage did not warrant spoliation sanction because it lacked an obligation to preserve the video at the time it was destroyed 30 days after plaintiff’s alleged incident.
Plaintiff was injured on a playground during recess when another student allegedly pushed her from behind, causing her to fall and break her arm. The School District’s Superintendent reviewed video footage of the playground from that day, which did not show the incident as it occurred “off camera.” More than two months later, plaintiffs served a notice of claim. During the lawsuit seven months later, plaintiff served the School District with a notice to produce the video footage. The School District’s response advised that it was not in possession of that video because it was automatically deleted after 30 days.
The trial court granted the School District’s summary judgment motion and denied plaintiff’s cross-motion to strike the answer as a sanction for spoliation of evidence. The Second Department affirmed as plaintiff failed to sustain her burden of demonstrating the School District had an obligation to preserve the video at the time of its destruction, that either the video was destroyed with culpable state of mind or that plaintiff was deprived of her ability to prove her claim.
When defense counsel moved to enforce the second stipulation, pursuant to CPLR § 3126, by moving for summary judgment seeking dismissal of the complaint, the trial court granted the motion as plaintiff was precluded from presenting evidence establishing her prima facie case.
The Court further found that plaintiff advanced no arguments on appeal addressing the trial court’s decision to grant the School District summary judgment, and thus upheld that trial court’s decision.

02/18/20          Caserta v Triborough Bridge & Tunnel Auth.
Appellate Division, Second Department
Plaintiff was compelled to provide defendants with access to his social media accounts, including photographs, videos, and other postings regarding social and recreational activities that might contradict his claims of disability because the discovery sought is relevant, useful, and reasonable.
The trial court granted defendant’s motion for a so-ordered subpoena compelling access to plaintiff’s social media accounts only to the extent of directing plaintiff to provide “those items which show or discuss plaintiff attending and/or performing in concerts or playing musical instruments since March 6, 2015.”
The Second Department modified that decision by granting defendant’s motion without the subject matter limitation because defendants sought discovery, including photographs, videos, and other social media postings for plaintiff’s social and recreational activities that may contradict his claims of disability. As a result, the Court held the discovery was relevant, useful, and reasonable (see Forman v Henkin, 30 NY3d 665 [2018]; Vasquez-Santos v Mathew, 168 AD3d 587 [1st Dept 2019]).
02/19/20          Turiano v Scwaber
Appellate Division, Second Department
Plaintiff’s repeated failure to appear for her continued deposition along with her failure to demonstrate a reasonable excuse for that failure supports an inference that her conduct was willful but did not warrant to drastic remedy of striking the complaint.
After a motor vehicle accident and lawsuit, plaintiff appeared for her deposition. She thereafter underwent a surgical procedure, causing the note of issue to be vacated. Plaintiff served a supplemental verified bill of particulars alleging she received surgeries on her right foot as a result of the accident. Plaintiff appeared for a second deposition regarding the injuries related to her surgery, but they were unable to complete her deposition, so all parties agreed to continue it at a later date.
The trial court directed the continued deposition to be completed before the next conference, but plaintiff’s counsel requested an adjournment. Plaintiff’s counsel failed to appear at the conference, as well as the next date agreed to for the deposition, and the next court conference. The trial court then issued an Order directing plaintiff’s counsel or another on his behalf to appear at the next conference and have the deposition completed by the conference or else the trial court would “entertain a motion to dismiss the case.”
After plaintiff failed to schedule her deposition before the next conference, defendant moved under CPLR § 3126(3) to strike the complaint. Plaintiff opposed by an affidavit from her attorney’s paralegal trying to explain the defaults. The trial court granted defendants’ motion.
The Second Department held plaintiff’s repeated failure to appear for her continued deposition, coupled with her failure to demonstrate a reasonable excuse for that failure, supports an inference that her conduct was willful. Despite plaintiff’s claim that her attorney’s health condition prevented her from appearing for her continued deposition, the Court found no medical evidence was submitted to support such a claim or explain why his per diem was unable to attend the deposition.
Nonetheless, the Court held that since plaintiff complied with disclosure except for completing the continued deposition relating to newly alleged injuries, striking the complaint was too drastic a remedy. The Court thus modified the decision by granting defendant’s motion only to the extent of precluding plaintiff from offering evidence at trial with respect to any of the new injuries alleged in her supplemental verified bill of particulars. 


Slip-and-Fall Law
By: Brian M. Webb [email protected]

Greetings Readers:
It is only appropriate that, as the author of the column on slip-and-falls, I am pleased to report that I now witness slip-and-falls on a daily basis.  Just this weekend, my seven-month-old daughter has become mobile and is crawling (or attempting to crawl) all over my house.  As a result, I am in a constant state to witness someone fall down.  Luckily for her, she only falls a few inches and only onto a carpet.  Luckily for me, she (a) is not failing due to any latent or patent defects that were created by her father and (b) is arguably assuming the risk of falling with every move that she makes. 
This month, I highlight a trio of cases that all come out of the First Department’s recent batch of decisions.  The first deals with a situation that, on its face, presents a case that one would surely think could be disposed of by a defense summary judgment motion.  However, the Court highlights a few deficiencies in the defense’s argument in order to allow plaintiff’s case to proceed.  Given the facts as described in the decision, I find it very unlikely that plaintiff will be able to prevail at trial, however, as all of us know, sometimes surviving the summary judgment motion is enough leverage to allow for a plaintiff to obtain some form of settlement.
The final two cases both deal with the popular “storm in progress” defense to a slip-and-fall on ice.  The interesting thing to me about these two cases is that they were decided only two days apart, by the same Court, yet come to essentially opposite conclusions.  While the facts appear to be just different enough to justify this result, the point to take away from this is that the Appellate Courts can be quite unpredictable when it comes to ruling on dispositive decisions in slip-and-fall cases.

March 3, 2020                        Matos v. Azure Holdings II, L.P.
Appellate Division, First Department
First Department overturns trial court’s grant of summary judgment to landowner defendants on a variety of grounds including the concept of “open and obvious” and the ability of the plaintiff to identify the dangerous condition.
Plaintiff was injured when he slipped and fell on “wet and slippery” conditions outside of the bathtub/shower in the apartment that he rented from the defendants.  This condition was allegedly caused due to the failure of defendants to repair the brackets that held up the shower curtain.  This resulted in apparently the bathtub/shower not having a curtain and water pooling on the floor of the bathroom.
The trial court granted summary judgment to the defendants on two grounds: (1) that the plaintiff was unable to identify the condition that made him fall and (2) that the water on the floor was “open and obvious.”  The First Department held that the trial court was wrong on both counts.
First, regarding the condition of the floor, the First Department noted that even though plaintiff testified that he did not actually notice water on the floor prior to his fall, that was not fatal to his claim.  The Court held that it was perfectly reasonable for a jury to infer that the floor of the bathroom was wet due to the lack of a curtain and that plaintiff did not need to explicitly state the same.
In terms of “open and obvious,” the defendants’ argument was quite simply that, of course the ground was wet if there was no shower curtain.  The Appellate Division held that an open and obvious condition “merely eliminates the property owner’s duty to warn of the hazard” it does not eliminate the duty to keep the property safe.  Here, the Court determined that whether or not the condition was “open and obvious” was better left for a jury to decide as the owners may have breached their duty to keep the property in a safe condition given the circumstances.
March 3, 2020                        Ross v. Lewis
Appellate Division, First Department
First Department reverses lower court’s denial of summary judgment in favor of defendant on the basis of the “storm in progress” doctrine.
Plaintiff was injured when she slipped and fell on snow and ice on the front steps of her residence, which was owned by the defendant.  Plaintiff testified that she fell at approximately 8:00AM on the day in question.
The defendant offered evidence, through weather records and an expert affidavit, that demonstrated that it had snowed approximately 27 inches the day before.  The records further indicated that it snowed in measurable amounts until 11:00PM the night before.  Additionally, it snowed “trace” amounts until 2:30AM on the day of the fall.  There was no evidence that it snowed at any time between 2:30AM and 8:00AM when plaintiff fell.
The Court held that the five-and-a-half hour window between 2:30AM and 8:00AM was not a reasonable enough period of time to allow for defendant to clear the property of snow of ice “given the blizzard” conditions and thus the defendant could not be held liable for breaching his duty to maintain the property in a safe condition.
March 5, 2020                        Ruhland v. 130 FG, LLC
Appellate Division, First Department
First Department reverses lower court’s grant of summary judgment in favor of defendant on the basis of the “storm in progress” doctrine.
Plaintiff was injured when he slipped and fell on ice on the sidewalk in front of a building owned by defendant.  The plaintiff testified that there was “fresh snow” on the ground at the time of his fall, which fell sometime around 7:30AM on the date of the fall.  While not explicitly in the decision, he must have fell prior to 11:00AM because the Court cited colon v. 36 Rivingston St. Inc., 107 A.D.3d 508 (1st Dep’t 2013) for the premise that “[b]ecause it snowed overnight, defendant had until 11:00AM to clear any fresh snow and ice.”  (Astute readers will wonder why this same Court did not cite that case in the case discussed above…).
Regardless of the evidence of “fresh snow,” the First Department nevertheless held that defendant was not entitled to the “storm in progress” defense in this case.  The basis for this finding was that the plaintiff’s testimony, together with some non-party witness affidavits, established that the ice that he fell upon was “dirty and trod upon, and had been present for days.”  The meteorologist data submitted by defendant also indicated that the temperature remained below zero for “much” of the six days prior to the fall.  The Court determined that this evidence was sufficient to raise a question of fact as to whether the ice that caused plaintiff’s fall was from the weather the day of the accident, or if he had pre-existing that morning’s snow.


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]

Brian M. Webb
[email protected]

Rob E. Hewitt
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]

V. Christopher Potenza
[email protected]


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