Premises Pointers - Volume III, No. 11

As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

WHAT PREMISES POINTERS COVERS
Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
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

NOTE FROM THE EDITOR:

Since our last issue, we have all had to adjust to a new way of life that includes social distancing, working from home and uncertainty.  Our team of lawyers have been busy staying abreast of the legal developments, government guidelines and executive orders impacting our clients.  For a complete list of all Legal Updates, see Hurwitz & Fine’s COVID-19 Resource Center. 
 
As practicing lawyers, we have also been busy adapting to our new work environment that includes staying in touch with clients, colleagues and co-workers through video conferencing, appearing in court remotely and going completely paperless.  While there has certainly been a change in how we do our jobs, we are pleased to report it has been a smooth transition. We are all working remotely and available to handle all matters during this time.  Here are a few tips to help those adjusting to the new work from home platform:

1. Get dressed (this one might seem obvious but it really does help!)
2. Create a dedicated workspace
3. Set boundaries with your new “co-workers” ranging from spouses to children
4. Stick to your routine as much as possible
5. Create a to-do list for each day
6. Take breaks
7. Connect with your colleagues and clients via video conference (Zoom, Teams or Skype)
8. Overcommunicate – reach out to coworkers regularly and stay connected
9. Stop working at the end of the day
10. Make time for physical and creative activities

Hurwitz & Fine has also launched a timely new newsletter - Employment & Business Pointers.  This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business law developments. Contact Joe Brown at [email protected] if you would like to subscribe.
 
As always, please feel free to share this newsletter with friends and colleagues.  All of our lawyers are here to help in any way we can as we continue to navigate COVID-19 and the many ways it is impacting us.  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.

Jody

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

The current crisis is having a significant impact on the retail, restaurant and hospitality industries. I expect we will see litigation down the road from both employees and store patrons related to the manner in which retailers responded to COVID-19 in terms of safety policies and procedures.  Many grocery stores have installed plexiglass clear panels between cashiers and shoppers.  Walmart recently implemented one-way movement in their stores and has restricted the number of people that can be in the store at one time. Other retailers have taken similar steps.  Here’s a summary.  Restaurants have been hit particularly hard here in New York State due to Governor Cuomo’s Executive Order requiring all restaurants to close except for takeout business.  Here in Buffalo, two restaurants recently had their liquor licenses suspended for violating the Executive Order and serving alcohol to customers – coverage can be found here.  While some view this as a harsh penalty, others support the efforts to enforce the social distancing guidelines in place in New York State and elsewhere. 

3/24/20            Contreras v. Walmart Stores East, LP
United States District Court, Eastern District of New York
District Court issued Order adopting Report and Recommendation of Magistrate Judge which recommended the denial of Walmart’s motion for summary judgment.

In this slip and fall case, Walmart moved for summary judgment arguing it did not have notice of the water condition Plaintiff claims caused her to fall.  The parties agreed that the water was the result of rainwater that was tracked into the vestibule.  The Magistrate Judge concluded that notice could be inferred based on video surveillance that showed three Walmart employees walking through the vestibule 50 minutes before Plaintiff fell.  Walmart objected to this finding and argued that there was no evidence Walmart employees were ever aware the floor was wet.  The District Court disagreed with Walmart’s arguments and affirmed the Report and Recommendation.  The video evidence showing Walmart employees in the area of the spill convinced the court that questions of fact existed.
 

4/02/20            Rivera v. Red Robin
United States District Court, Southern District of New York
District Court refused to grant motion to amend to add non-diverse defendant to lawsuit.

Plaintiff claims he slipped and fell at a Red Robin restaurant.  Plaintiff initially filed his complaint in New York State Supreme Court.  The action was removed to Federal Court by the Defendant.  Once in Federal Court, plaintiff moved to amend his complaint to join Red Robin employee Fatima Z. Niass as a defendant.  Since Niass was a resident of New York State, adding him to the lawsuit would defeat diversity and require the case to be remanded to State Court.  Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” The Court concluded that joinder was sought principally to manipulate this Court’s jurisdiction. Therefore, the plaintiff’s motion was denied.

Nursing Home and Assisted Living Facility Litigation
By: Patrick B. Curran [email protected]

To our clients who are long-term care providers and insurance carriers, we wish you and your families good health.  To nurses, aides and physicians who are caring for our loved ones, we thank you.  We admire you.
 
We have already seen blogs by plaintiffs’ lawyers alleging that it may be medical malpractice for healthcare providers to adopt novel untested treatment plans or use hastily designed and manufactured patient care equipment.  Meanwhile, the Governor of New York issued Executive Order No. 202.10, which exempts health care providers from medical malpractice liability except in cases of gross negligence.  Our own Stephanie McCance provides an excellent analysis of the Governor’s Order here.
 
A year from now, will we continue to shower praise and gratitude on today’s heroes, or will we be defending them in a multitude of lawsuits?
 
There were a couple of interesting trial court decisions that came out last month before the entire court system went on pause.  The first discusses the interplay of statutory claims by the decedent pursuant to Public Health Law § 2801-d and wrongful death claims brought by the decedent’s estate.  The second trial court decision addresses the enforceability of mandatory arbitration agreements signed upon admission.  Both interesting reads.
 
Be well everyone and stay safe.


March 2, 2020             Bert Dwain Butler Sr. v. Fort Hudson Nursing Center, Inc. et al.
Supreme Court, Washington County
A decedent may recover under Public Health Law § 2801-d, wrongful death and survivorship statutes as all three are compatible and do not conflict.
 
In this wrongful death action, Defendant argued that decedent could not be awarded damages for his death under Public Health Law § 2801-d, because such award is contrary to the law of New York in that it is incompatible with wrongful death and survivorship statutes. This Court held that Public Health Law § 2801-d was designed to protect and deter, to benefit the victim while penalizing the offender. The wrongful death and survivorship statutes on the other hand were designed to provide a financial remedy to the decedent’s estate and its beneficiaries, and thus they fail to account for the policies and goals inherent to Public Health Law § 2801-d. Therefore, Public Health Law § 2801-d – while perhaps challenging the longstanding jurisprudence that a decedent has no cause of action to recover for his or her own death – may nonetheless coexist with the wrongful death and survivorship statutes, as they serve different functions and do not conflict with one another.
 
This Court held that damages could be awarded for those days that decedent was alive and suffering. Insofar as his death was concerned, damages could simply be awarded “in an amount sufficient to compensate” decedent for his injuries.
 
 
March 9, 2020             Bernadette Mitchell et al. v. Dewitt Rehabilitation and Nursing Center et al.
Supreme Court, New York County
An arbitration clause was deemed enforceable as it was clear and unambiguous, was signed by decedent’s attorney-in-fact and contained an opt out option.
 
In this action for medical malpractice and wrongful death, Defendant sought to compel arbitration pursuant to the admission agreement which contains an arbitration clause binding parties to resolve all disputes in this manner. Plaintiffs argued that since the admission agreement was signed by a non-party as decedent’s representative, it was not binding upon them. Alternatively, they argued that the arbitration agreement was invalid as it was a requirement of the facility to enter into the agreement as a condition precedent to admission.
 
This Court held that the arbitration clause was clear and unambiguous on its face and must be enforced according to the plain meaning of its terms. Moreover, according to the admission agreement, the non-party representative executed the agreement as attorney-in-fact, making her essentially an alter ego of the principal and authorized to act on behalf of the principal, this being decedent. Finally, Plaintiff’s argument that the binding condition precedent invalidates the agreement was unavailing, since the resident or their representative had the option to opt out of the agreement by written notice, and this option was boldly marked within the admission agreement.

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

Dear Readers,
 
I hope you are doing well and staying healthy.  For the last four weeks, the focus of the McCarthy household has been efficiently honing a daily routine, gratitude, and the silver-linings that may be found in being home together.  Josie, who is now 7.5 months old, has benefited from being home with both parents, even though it was initially a challenge to come up with an efficient routine that allows for childcare and working from home (pro-tip: trading off on baby duty every 2-3 hours helps).  Now that we have a good routine down, we are enjoying the time we get to spend with Josie on a day-to-day basis and are amazed at how fast she is growing.  She “dances” (best described as sitting up and violently rocking back forth when music is played), gets very excited to eat crackers and bananas, and is generally very chatty.  Josie has had visits through the glass of our front door with Grandma and Great-Aunt Becky, who both live nearby, and has recently embarked on an epic “listening series” with Mommy (aka me).  The goal is to listen to one full album a day—vinyl, CD, or digital.  We started with Supertramp’s "Crisis? What Crisis?" on vinyl.  Today, we listened to Paul Simon’s "Graceland" on vinyl.
 
If you are interested in reading about COVID-related legislation, I urge you to check out the various articles my colleagues have written over the last few weeks (available here).  This month’s column will focus its attention elsewhere.
 
The Governor’s 2021 State Budget Approved By Legislature
Outside the universe of pandemic-related Executive Orders and legislation, the biggest legislative news in NY is the Legislature’s recent approval of the Governor’s $177 billion 2021 State Budget. The legislative enactments included in the budget cover a broad array of issues.  Below you will find a quick summary of the more interesting new laws: 
 

• Requires employers to provide workers with paid sick leave—Depending on the size of the business, NY’s employers must provide their employees with some degree of job-protected sick leave.Businesses employing between five-99 people must provide at least five days of paid sick leave per year; businesses with 100 employees or more must provide at least seven days of paid sick leave per year.Small businesses (four or fewer employees) must guarantee five days of job-protected unpaid sick leave per year.
   
• Enacts the Josef Neumann Hate Crimes Domestic Terrorism Act—This is the first law in the U.S. to label “hate-fueled murder with the intent to cause mass casualties” as “domestic terrorism.” Persons convicted of the offense of “domestic act of terrorism motivated by hate” will be convicted of an A-1 class felony.Penalties for this crime are the same as those convicted of other acts of terrorism (up to life in prison without parole).
   
• Prohibits the sale or distribution of flavored e-cigarettes and vape products—Also prohibits the sale of all tobacco products, including e-cigarettes in all pharmacies, restricts the delivery of e-liquid products to NYS licensed vapor retailers, restricts the public display and sale of tobacco and vape products near schools, bans certain “carrier oils” determined to be harmful; band coupons and manufacturer discounts and displays in tobacco shops, and allows increased penalties for illegally selling tobacco to minors.
   
• Bans hydrofracking.
   
• Legalizes e-bikes and e-scooters—Local governments may (if they so choose) permit the use and rental of e-bikes and e-scooters on public streets.Riders must be at least 16 years old and those between 16-18 must wear a helmet.
   
• Legalizes compensated gestational surrogacy-Establishes the criteria for valid, enforceable surrogacy contracts and imposes protections for intended parents and surrogates.Creates the Surrogate’s Bill of Rights, which ensures (among other things) the Surrogate’s “unfettered” right to make their own healthcare decisions, provides access to comprehensive health insurance and access to legal counsel paid for by the intended parents. The Act also streamlines second-parent adoption (when one of the intended parents is not biologically linked to the child). Notably, surrogacy contracts must be court approved and will establish parentage of the child at the time of birth.
   
• Scales cash bail reform back—More than a dozen crimes were added back into the list of offenses eligible for cash bail, including burglary, failing to register as a level 3 sex offender.
   
• Bans the use of Styrofoam—The use and distribution of Styrofoam containers and packing materials will be officially banned, statewide, beginning in January of 2022.
   
• Enacts the “Student Mental Health Program”—Provides funding to school districts to improve student access to mental health resources and assist “students who have experience trauma that negatively affects their educational experience.” $10 million has been allocated to this program for statewide use.

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

Greetings Subscribers!
 
With the virtual NFL draft this month, I cannot wait to see how the use of technology will forever change the world after COVID-19, both in sports and in the courts. On a more serious note, with the added pressure to work virtually these days and be accessible 24/7 via email, telephone, Zoom, Skype, etc., please know we are here for you; it's ok to not know what is going to happen next. Do not be afraid to reach out and talk with someone if you are feeling overwhelmed as the world has not seen a pandemic like this for more than 100 years.
 
This month, I report on the Katz case, which involved defense counsel successfully asserting the materials prepared for litigation privilege in preventing the production of its IME doctor’s notes and records from the IME (but disclosing the IME report). The Aikanat case serves as a reminder to all practitioners that timely follow-ups on discovery requests is necessary as well as motion practice (where appropriate), or you risk a court telling you you’re too late, you waited too long, and your excuse is insufficient to warrant post-note of issue discovery. Stay safe and healthy until next issue…
 
Marc


03/18/20          Katz v Camp Bniseinu
Appellate Division, Second Department
Plaintiffs could not compel defendant to produce certain notes and records of the physician who conducted plaintiff’s independent medical examination.
 
Plaintiff was allegedly injured when she tripped and fell over a duffle bag at defendant’s summer camp. A judicial hearing officer denied plaintiff’s motion to compel the production of the notes and records of the physician who conducted an independent medical examination (IME) of plaintiff on behalf of defendant. The trial court denied plaintiff’s motion pursuant to CPLR § 3104(d) to review the order, then granted plaintiff’s motion for leave to reargue her prior motion, and, upon reargument, adhered to its initial determination.
 
The Second Department affirmed the trial court’s decision, upon reargument, to adhere to its prior determination denying review of the denial of that branch of plaintiff’s motion to compel. The defense only had to provide plaintiff with a copy of the IME report as the notes and records created by the IME physician were not discoverable because they were privileged under materials prepared for litigation. The Court noted plaintiff failed to demonstrate she had a substantial need for the material or that she was unable, without undue hardship, to obtain the substantial equivalent of the material by other means (see CPLR 3101[d][2]; Giodano v New Rochelle Mun. Hous. Auth., 84 AD3d 729, 732 [2d Dept 2011]).
 

03/20/20          Aikanat v Spruce Assoc., L.P.
Appellate Division, First Department
Defendants failure to follow-up on their discovery requests for over a year did not warrant post-note of issue discovery because they did not indicate why they were entitled to the late discovery nor explained why they waited so long to request the Facebook data.
 
The trial court denied defendants’ motions to vacate the note of issue and compel further discovery. The Fourth Department unanimously affirmed. Although defendants requested authorization to obtain plaintiff’s tax returns in 2015, they took no action to enforce their request until after the note of issue was filed. Additionally, they did not seek the Facebook Data until soon before the note of issue was filed, despite the purported need for the information based on plaintiff’s deposition testimony.
 
The Court noted defendants failed to indicate why they are entitled to the discovery they belatedly sought; why the information in the tax returns was not available from another less private source, like the employer’s payroll records; and why they waited so long to request the social media information.
 
Defendants claimed they were improperly denied the opportunity to depose a corporate witness from third-party defendant, who had knowledge of their claims for contractual indemnification and failure to procure insurance, and that the first witness produced by third-party defendant did not have the requisite knowledge. However, the Court held defendants failed to indicate why they waited until after the note of issue was filed to seek this discovery and, in any event, the additional discovery was superfluous since they moved for summary judgment on their contractual indemnity claims against BGC.

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

Greetings Readers:
 
Well wishes to everyone affected by the current health crisis. 
 
If there is a silver lining to everything that is going on, the quarantine situation has allowed me to spend a tremendous amount of time with my incredibly energetic eight-month-old daughter.  Good news – she is very mobile.  Bad news – she is very mobile.  She has gone from only crawling a few inches at the time of last month’s issue to now being in consideration for the 20-yard dash in the Baby Olympics (if such a thing exists).  Being able to spend more time with her during this time has helped me not only become a better father, but also has prevented me from getting too much cabin fever!  How long that lasts may very well depend on how fast my daughter ultimately becomes.
 
While the New York Civil Court System has grounded to a halt, there have been some recent decisions out of the Appellate Courts that are worth noting in my column.  Two in specific jump out.  First, there is a case from the First Department that deals with the application of the Espinal doctrine to a situation where a nurse was attacked by one of her patients.  The Court, following a detailed recap of the Espinal standard, determined that the security company hired by the facility did in fact owe the nurse a legal duty to protect her.  The next case is out of the Fourth Department and deals with the “storm in progress” doctrine, specifically in terms of the evidence necessary to meet one’s burden when trying to successfully use that defense.  Anyone familiar with the geography of Western New York would likely think that the weather in Albion would be identical to the weather in the Village of Medina, however, the Appellate Court saw it differently.
 
Again, best wishes that everyone is getting through everything as smoothly as practical.  Stay well!

 
April 2, 2020              Kuti v. Sera Security Services
Appellate Division, First Department
First Department affirms trial court’s denial of defendant’s summary judgment motion on the grounds that there is an issue of fact as to whether or not defendant, a security company, owed plaintiff a duty to protect her from attacks by patients at a healthcare facility.
 
Plaintiff, a nurse, was injured when she was attacked by a patient at the facility where she worked.  She brought suit against, among others, the company that was hired by the facility to provide security thereat.  The defendant moved for summary judgment arguing that, as plaintiff was not a party to the contract between the security company and the facility, the security company could not be liable to plaintiff because it did not owe her a duty in the first place.
 
In reaching their decision to affirm the lower court’s denial of defendant’s motion, the First Department performs a thorough analysis of the facts of the case through the framework of the Espinal doctrine.  The Court determined that issues of fact existed as to whether or not the language of security contract created a situation where the company had entirely displaced the facility’s duty to maintain a safe premises, one of the Espinal conditions to imposing a duty.  The contract at issue referenced the company’s obligation to “provide security services . . . which will ensure the safety and security of the facility” for 24 hours per day and 7 days a week. 
 
Additionally, as the description of services within the contract was sufficiently ambiguous, the Court looked to extrinsic evidence and found that the security guards routinely intervened to stop “fights” and other “altercations” at the facility and that such conduct suggested that the security company had entirely displaced the facility’s obligation to do the same.  The contract’s provisions that all of the company’s guard be trained to “handle emotionally disturbed individuals” and be trained in “arrest procedures” allowed the Court to find that it was completely foreseeable that the company was obliged to protect people from exactly the type of incident that was at the center of this case.
 
 
March 20, 2020                      Taylor v. Kwik Fill – Red Apple
Appellate Division, Fourth Department
Fourth Department affirms trial court’s denial of defendant’s “storm-in-progress” motion for summary judgment due to the lack of sufficient evidence concerning the weather condition.
 
Plaintiff was injured when she slipped and fell in a snowy parking lot in the Village of Medina, New York.  She brought suit against the owner of the property on the grounds that the defendant breach its duty to maintain its property in a reasonably safe condition.  The defendant moved for summary judgment arguing that its duty to maintain the premises was superseded by the fact that there was a “storm in progress” at the time.
 
In support of its motion, defendant relied on an affidavit from a meteorologist who reviewed weather data from Buffalo, Rochester, Niagara Falls, Lyndonville, Albion and Lockport, New York but not the village of Medina itself.  For readers not familiar with the general Western New York area, all of those municipalities essentially surround Medina, with Albion and Lyndonville specifically being only about 10 miles away.  Based on that data, defendant’s expert stated with reasonably certainly that it must have been precipitating in Medina at the time.  Plaintiff’s expert opined that there was no way to be certain as to the conditions in Medina without actual data from the Village itself.
 
The Fourth Department agreed with the lower court’s that defendant’s submission was inadequate to entitle it to summary judgment on this issue.  The Court noted that, given the lack of data from Medina itself, the defendant’s submission lacked the necessary evidentiary foundation to support the conclusion that it was precipitating in Medina at the relevant times.

Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Robert E.B. Hewitt III [email protected]

Dear Readers,
 
I hope you are all well in these unprecedented times. It is truly staggering how much life has changed in just a few short weeks. As we practice social distancing, you can count on us to still be here with full access to our files and full ability to meet your needs during these difficult times.
 
This edition there are only a handful of articles. In the first, summary judgment was properly granted in an elevator case where there was no proximate cause shown that the plaintiff infant’s death was caused by the emergency workers having to take the stairs instead of the elevator. Also,  in one slippery condition, the fact that a video showed a warning sign of a slippery condition was recently moved to a less visible space and that a fresh wet solution recently applied was not open and obvious led to the denial of summary judgment for defendants.
 
Be safe,
Rob
 

03/12/20          Matter of Estate of Archibad v. NYC Housing Dev.
Appellate Division, First Department
Plaintiff’s Claims that the Elevator Was Inoperable Contradicted by Claims She Rode the Elevator Down with First Responders and in Any Event There Was No Evidence Delay in Using Stairs By First Responders Contributed to the Infant Death
 
Plaintiffs' decedent (an infant) died after suffering a severe asthma attack. Plaintiffs alleged that inoperable elevators in the New York City Housing Authority (NYCHA) building where the infant lived with his mother, plaintiff Bethsaid Archibald, delayed emergency medical workers in reaching him, and that the City defendants were negligent in treatment. Plaintiff sued both the City of New York  and the NYCHA.
 
The First Department held that the motion court correctly found that the City defendants were entitled to summary judgment as they demonstrated they owed no special duty to plaintiff The City's employees, who responded to the 911 call regarding the infant's asthma attack, made no promises to the infant or to Bethsaid, nor did they give any assurances or advice that would create a special relationship.
 
As to the NYCHA, the First Department also found the lower court also properly granted it summary judgment for plaintiffs' claims arising out of allegedly defective elevators at their premises. Bethsaid's testimony that she and her son rode the elevator down with the first responding unit contradicted claims that both elevators were inoperable that day. Their claims that the elevators were inoperable minutes earlier, when emergency workers first arrived, are similarly belied by the testimonial evidence, and other hearsay statements to the contrary are insufficient alone to have created a question of fact. Furthermore, plaintiffs failed to adduce evidence that any delay caused by the emergency medical workers allegedly needing to take the stairs upon arrival was a proximate cause of the infant's death.
 

01/29/20          Monroy v. Lexington Ave. Partners
Appellate Division, Second Department
Summary Judgement Denied  Where Contractor Moved Warning Cones Away From Spill Area and Freshly Placed Wet Condition Was Not Open and Obvious
 
Plaintiff, employed by third-party defendant Mulligan Security Corp., was working as a security guard in a building located at 450 Lexington Avenue, in Manhattan. At that time the building was allegedly owned and operated by the defendant Lexington Operating Partners, LLC (hereinafter Lexington). During his shift on the date of the subject accident, the plaintiff took the freight elevator to the sixth floor of the building, and immediately after exiting the freight elevator slipped and fell. At the time the plaintiff fell, the floor in that area was in the process of being stripped and waxed by employees of the defendant ABM Building Maintenance (hereinafter ABM), a contractor hired by Lexington.
 
The plaintiff commenced the instant action against Lexington and ABM to recover damages for personal injuries, alleging, among other things, that they were negligent in maintaining the premises and in creating a dangerous condition.
 
The surveillance videotape shows that an employee of ABM moved a warning sign from directly in front of the freight elevator to the right side of the freight elevator, and then proceeded to mop the floor directly in front of the freight elevator. The plaintiff then exited the freight elevator and slipped and fell to the ground. The plaintiff testified at his deposition that he did not hear any warning or see any warning sign before he slipped and fell. Viewing the evidence in the light most favorable to the plaintiff, the First Department found the defendants failed to establish their prima facie entitlement to judgment as a matter of law. Further, contrary to their contentions, First Department held the defendants did not establish, prima facie, that the floor's wet condition, which consisted of freshly placed stripping solution, was open and obvious and not inherently dangerous. ABM also failed to establish, prima facie, that it did not create the alleged hazardous condition and Lexington failed to establish, as a matter of law, that it could not be responsible for ABM's alleged negligence pursuant to its nondelegable duty to keep the premises safe.  Neither Lexington nor ABM established their prima facie entitlement to judgment as a matter of law on the question of whether they provided adequate warnings of the wet condition of the floor prior to the subject accident.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSOCIATE EDITOR
Todd C. Bushway
[email protected]

ASSISTANT EDITORS
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]

V. Christopher Potenza
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]

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