NOTE FROM THE EDITOR:
Since our last issue in April, we have all become more adept at working from home, adjusting to new co-workers (fur babies included), overseeing distance learning for our children (or perhaps homeschooling?), stepping up our culinary skills and appreciating our IT departments all that much more. We've also learned the ins and outs of remote depositions and mediations, and have managed to keep litigation moving. Speaking of which, we were all excited when NYSCEF began its return to e-filing last week, allowing us to file motions and some pleadings again. We are receiving more and more notices for pre-trial conferences and are feeling like it's almost business as usual (still no new complaints, but see Anastasia's column below for a full update regarding what's happening now and what to expect). Things are looking up and we are looking forward! Speaking of looking forward, I have had the privilege of taking over as Managing Partner of Hurwitz & Fine effective May 1st. This is an incredible honor for me as I began my legal career here 23 years ago in 1997. As Managing Partner, I could not be prouder of the lawyers and staff with whom I work and who have trusted me with this responsibility. They are navigating the challenges presented by COVID-19 with cooperation, collaboration and ingenuity, finding creative solutions in response to the daily tests we have encountered personally and professionally. This has allowed us to provide uninterrupted service to our clients even though our surroundings have changed.
I am also delighted to announce the advancement of attorneys Marc A. Schulz and Amber E. Storr to partners of the firm. Marc, a member of the labor law and premises liability practice groups, has been with Premises Pointers since our first issue and can always be counted on for his sports updates, particularly during the college basketball season. Amber is a commercial litigator and is also a member of our labor & employment practice group. Congratulations to both on this well-deserved accomplishment!
One thing we have found helpful as a law firm—more than anything else—is staying connected with colleagues, co-workers and clients. This takes different shapes depending on the day, but critical to staying the course. Resources like LinkedIn, Zoom and Skype are now part of our everyday practices and communications. In many ways, we are more connected than ever. We are also continuing to stay abreast of all legal developments and trends, government guidelines and executive orders impacting our clients. We have created the COVID-19 Legal Response Team, which is an interdisciplinary model comprised of firm lawyers from various practice groups designed to meet all COVID-19 legal needs. And for an up-to-date list of all Legal Updates, see Hurwitz & Fine’s COVID-19 Resource Center.
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 hopefully turn our attentions to reopening. 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.
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 litigation developments. Contact Joe Brown at [email protected] if you would like to subscribe.
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 v[email protected] to subscribe.
Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected]
The last two months have been slow in the Appellate Courts, but we expect things to pick up now that we’re filing briefs again. Federal Court, on the other hand, has continued with business as usual.
5/12/20 Cicera v. Costco Wholesale Corporation
United States District Court, Eastern District of New York
District Court denied in part and granted in part Costco’s Order motion for summary judgment despite claim of “sham” affidavit.
In this slip and fall case, which was removed to Federal Court, Costco moved for summary judgment arguing it did not have notice of the condition plaintiff claims caused her to fall. She alleges that upon entering the store, she saw a red piece of cake on the floor and told an employee who said he would take care of it. About 10 minutes later, plaintiff returned to the general area where the cake was seen and fell on something slippery. A Costco employee inspected the floor after the fall, and saw and photographed a strawberry. The plaintiff claims she slipped on a piece of cake, though she did not specifically see cake on the floor. After the fall, she claims she had cake crumbs on her shoes and clothes. The plaintiff also submitted what the court called an “unusual” correction sheet after her deposition making substantive changes to central issues in the case going as far as to change her answer from “no” to “yes” and submitted affidavits the defendant called “sham” affidavits. The Court found that the “post deposition adjustments will no doubt be fertile ground for cross-examination” but did not disregard them. Plaintiff’s original testimony that there was red cake on her shoes and pants after her fall—was deemed sufficient to defeat summary judgment. Because plaintiff did not respond to defendant’s arguments on constructive notice that claim was dismissed, but the court noted it would have been dismissed anyway.
Negligent Supervision, Municipal Claims and School Liability
By: Todd C. Bushway [email protected]
May greetings from the outpost located about 2 miles due north of Hurwitz & Fine’s offices in Buffalo’s Liberty Building. That outpost is also known locally as the second floor study in my home. Cheers.
Like almost everyone else, my family and I have been hunkered down since mid-March. Speaking just for my family, the biggest impact has been on our kids (the dog is thrilled with the attention). My oldest finished (remotely) her sophomore year in college last Friday. Half of her belongings are still in Philadelphia. My youngest had the end of his senior year in high school ko’d. He’s been good about it but I don’t know how you replace the events that usually accompany the end of senior year. I will say this - having a home with more space than perhaps we really need for 4 people has been a godsend – everyone can go to their own corner.
Since live music is shut down for the foreseeable future, its been all about the listening. Lots of good stuff I haven’t listened to in a while, plus a release from the fall that I somehow missed when it came out. Highlights from my audio library includes some of the early Waco Brothers records, Nikki Lane, 2004’s Gasoline from long time Cleveland rockers Rosavelt. Some days I just click on a band I know I haven’t listened to in a while – sometimes I wonder why I haven’t listened; sometimes I wonder what I thought was compelling.
In 1979, the Ramones released the classic Its Alive, recording of a show recorded in England on December 31, 1977. To make that record, the Ramones recorded the last 4 shows of their 1977 tour – shows on December 28-29-30 and the previously released December 31, 1977 show. This past fall marked the 40th anniversary of It’s Alive’s release and to celebrate that, remastered recordings of all four shows were released. All four discs are a blast – the sound is terrific and the band killed it all four nights. Definitely turn it up and let it fly.
On to the cases. The first is a late notice of claim case where the petitioner was able to establish the respondent wasn’t prejudiced by the late notice. The next pair look at the exception to prior written notice requirements when the municipal entity affirmative created or caused the dangerous condition. The final case, arising from a case against a school district for events
April 29, 2020 Brown v. New York City Housing Authority
Appellate Division, Second Department
Lack of prejudice from late notice of claim established through photographs included with notice of claim and defendant’s responding papers regarding repair of alleged defect.
Plaintiff fell on an allegedly defective step in the lobby of respondent’s building. Within 90 days of the accident, claimant filed a Notice of Claim on another proposed defendant and attempted to serve respondent but delivered the Notice to Claim to the wrong address. The error was identified approximately 60 days after the 90-day period to time file had run and petitioner immediately sought leave to serve a late Notice of Claim.
The decision focuses on whether the respondent was substantially prejudiced by the late filing. The appellate court agreed with the lower court, pointing to two things in finding the claimant met her burden. First, the Notice of Claim included as an exhibit photographs showing the allegedly dangerous condition, taken 2 days after the accident, which the court held depicted for the respondent what the area of the incident looked like at the time petitioner fell. Second, the court pointed to respondent’s response papers, which contained evidence that the condition had been repaired approximately 2 months after the incident. The court noted that due to respondent’s own actions, it “would not have been able to investigate the site of this transitory defect any more effectively than it could have had it been timely served 90 days after the accident.”
April 27, 2020 Brown v. City of New York
Appellate Division, First Department
Plaintiff barred on motion from raising exception to prior written notice statute that was not contained in Notice of Claim or Summons and Complaint.
Plaintiff sustained injuries as the result of a trip and fall accident caused by an allegedly defective condition on a city roadway. He timely filed a notice of claim and served a summons and complaint. After the completion of discovery, the City moved for summary judgment, establishing that the complained of condition was subject to the City’s prior written notice statute and that no such notice had been received.
Plaintiff did not dispute that the city had not received any prior written notice – in response to the City’s motion, plaintiff argued the city had affirmatively caused or created the allegedly dangerous condition. The Court rejected this argument and the City’s motion was granted. Plaintiff’s undoing lay in the fact that his claim that the City was affirmatively negligent in causing or creating the condition first appeared in his Bill of Particulars and was not included in neither his Notice of Claim not his Summons and Complaint. As noted by the court, a party, in their Bill of Particulars, “may not add a new theory of liability which was not included in the notice of claim.” That omission might have been corrected had plaintiff sought, at some time prior to the expiration of the one year and 90-day statute of limitation, sought to serve a late notice of claim adding the claim the City was affirmatively negligent.
April 23, 2020 O’Connor v. Tishman Construction Corporation, et al.
Appellate Division, First Department
Inconsistencies between City’s proof on its summary judgment and the testimony of City employee in similar case resulted in denial of City’s motion for summary judgment for lack of prior written notice.
Plaintiff sued several defendants, including the City of New York, after she tripped over the remnants of a street sign installation on a city sidewalk, fracturing her right knee. After the completion of discovery, the City of New York moved for summary judgment on the basis that the condition was subject to the City’s prior written notice statute and that no such notice had been received. Plaintiff alleged that the prior written notice requirements did not apply because the condition was either caused or created by the work of city employees.
In support of their motion, the City submitted evidence that it had not received the required notice and to counter plaintiff’s argument that the City was affirmatively negligent, attached records from the City’s Department of Transportation (“DOT”) that showed the City had not performed any work at the location in the two years prior to plaintiff’s fall and that the City had not installed, repaired or removed a sign from the location in the 20 years prior to the fall. These records were submitted through a sworn affidavit from the DOT’s Supervising Superintendent of Maintenance.
Co-defendant Tishman also moved for summary judgment, arguing that the City had created the defect. In support of their motion, Tishman submitted a deposition transcript taken in another case, which arose from an incident several months after O’Connor’s injury, when another person tripped and fell over the exact protruding signpost that caused O’Connor to trip.
The problem for the City was that the same DOT’s Supervising Superintendent of Maintenance who provided the affidavit in this case had given a deposition in the second case. And in that deposition, he testified that (1) in 2000 the City had performed work at the location that included work on parking meters and signs, (2) records showed repairs had been made to signs at the location in 2006, (3) the City had no records of any permits issued to any contractors to remove the signs, (4) that the City was responsible for maintaining and repairing the signs at the location and (5) that if the sign post installation was not flush with the sidewalk, the installation had been done improperly.
Well, that’s awkward. Not surprisingly, the court held that this directly contradictory evidence meant the City had not met its burden of establishing its workers were not responsible for causing or creating the condition.
March 11, 2020 Doe v. Ascend Charter School, et al.
Appellate Division, Second Department
Court found plaintiff adequately stated a cause of action for negligent supervision and denied defendant school’s motion to dismiss.
This is very contentious case that requires looking at the record below to understand the appellate court’s decision. This decision arises from what is listed as Motion #2. At the time I write this, Motion #10 is pending before the court.
Plaintiff was a 10 year student at the defendant charter school who was sexually assaulted by older students while riding a bus owned and operated by the codefendant Jofaz Transportation on her way home from school. Plaintiff’s summons and complaint alleged the school was negligent for, among other things, failing to adequately supervise its students while on Jofaz’s bus. Plaintiff alleged that Ascend Charter had contracted with/hired Jofaz to provide transportation for its students. Ascend Charted contends that Jofaz had been hired, as required by statute, by the New York City Department of Education to provide busing and it had no authority or ability to direct or control what occurred on Jofaz’s buses.
Prior to discovery, the school moved to dismiss plaintiff’s complaint for failing to state a cause of action, arguing the plaintiff’s allegations were entirely based upon the premise that the school had “hired, contracted with, retained, employed, supervised, or in some fashion controlled” Jofaz and its employees. Pointing to case law that limits a school’s duty to its students when those students are in its physical custody (there are numerous cases addressing this issue where the busing company is a wholly separate entity from the school), the school argued that it did not owe plaintiff a duty at the time of the incident and therefore, on the facts set forth in the complaint, plaintiff could not state a cause of action against it.
The trial court issued a simple order denying the motion, with leave for the school to move for summary judgment after the completion of discovery. In upholding the lower court decision, the the appellate court highlighted the difference between a motion to dismiss for failing to state a cause of action and a motion for summary judgment. The motion to dismiss requires the court to accept the facts as alleged and to give the plaintiff the benefit of “every possible favorable inference” in deciding if the alleged facts and circumstances fit within any cognizable legal theory. The focus is on whether the alleged facts support a cause of action – whether plaintiff can ultimately prove that cause of action and survive a motion for summary judgment is not before the court.
In support of its decision, the court found plaintiff had sufficiently pleaded their negligent supervision claim against the school by stating the school “had a duty to supervise the children within its custody”, “had contracted for bus services with Jofaz” and “had obtained prior written notice” of similar conduct occurring on buses transporting its students. If the school is correct about the busing contracts, a second similar motion will be forthcoming. My guess is that plaintiff will try to establish the school’s employees engaged (or failed to engage) in conduct supporting liability outside of the busing arrangement.
Nursing Home and Assisted Living Facility Litigation
By: Patrick B. Curran [email protected]
As we enter day whatever, and week whatever, of our quarantine, we continue to wish good health, both physical and mental, to you and your families. To all those on the frontlines, risking your own health and the health of your own families, to care for the sick and infirmed, we simply want to say THANK YOU!
In response to this pandemic, we have formed a COVID-19 Medical & Nursing Home Defense Team and have been providing weekly news alerts and legal updates to our friends and clients. This week’s alert addresses, among other things, executive “immunity” declarations and how they impact future litigation. I encourage you to contact us to subscribe to these news alerts to stay out front on what legal challenges face our medical and nursing home industries in the short and long term.
As the court system is slowly opening and becoming more functional in these remote settings, decisions are being issued and there are a couple of interesting ones at the trial court level from last month. Continuing a trend, a New York County trial court held that a cause of action to recover for damages for deprivation of rights under the Public Health Law § 2801-d is separate and distinct and involves considerations different to those that sound in medical malpractice or negligence. The case also addresses, as does a similar decision from Kings County, the interplay between a negligence/malpractice claim and a breach of contract claim when the allegation is that the defendant did not adhere to the written and agreed upon care plan.
April 10, 2020 Deborah Cameron v. 150 Riverside OP. LLC et al.
Supreme Court, New York County
Court holds that Public Health Law § 2801-d is separate from claims of medical malpractice and/or negligence, and that an admission agreement can constitute a contract and implied warranty.
This motion to dismiss arose from the allegedly negligent treatment of decedent while she was under the care of Defendants’ nursing home facility. Plaintiff’s complaint alleged eight causes of action, and Defendants moved to dismiss the causes of negligence per se, breach of implied warranty, and breach of contract, and to conditionally dismiss the entire complaint for failure to serve a Certificate of Merit.
Defendants first argued that the negligence per se claim should be dismissed because it was duplicative of the cause of action for violation of Public Health Law 2801-d. The Court held that it is well settled that a cause of action to recover for damages for deprivation of rights under the Public Health Law is separate and distinct and involves considerations different to those that sound in medical malpractice or negligence. For this reason, this cause of action was not dismissed.
Defendants then argued that the breach of implied warranty and breach of contract causes of action must be dismissed as legally insufficient because it is redundant of Plaintiffs claims sounding in negligence and/or malpractice. In opposition, Plaintiff submitted the admissions agreement, wherein Defendants agreed to provide certain specified services to the Plaintiff, which they then allegedly failed to provide. The Court held that this was sufficient to state causes of action for breach of implied warranty and breach of contract, and those causes were not dismissed.
Defendants finally argued that Plaintiff’s claims sound in medical malpractice, rather than negligence, and as such, the complaint should be conditionally dismissed for failure to provide a Certificate of Merit. However, Defendants failed to identify any specific allegations in the complaint where Plaintiff alleged a medical malpractice claim as opposed to a claim of ordinary negligence as the injuries complained of did not involve specialized expertise. Accordingly, the complaint was not dismissed.
May 5, 2020 Sonia Postrygacz v. Home Attendant Vendor Agency
Supreme Court, Kings County
Plaintiff’s expert opinion that Defendant did provide direct medical and nursing care to decedent supports a claim of malpractice that is not precluded by contract.
This motion for summary judgment arose from an action for negligence, medical malpractice, and wrongful death alleged against home health care aides rendering care to Plaintiff’s decedent. Plaintiff alleged that Defendant failed to prevent the development and worsening of decedent’s pressure ulcers while under their care.
In support of their motion for summary judgment, Defendant maintained that the Plaintiff’s cause of action based upon claims of negligence, medical malpractice, and wrongful death should be dismissed as a matter of law because the relationship that Defendant had with decedent is governed by contract – this being the terms of the decedent’s medical plan – and that they performed their duties in accordance with the contract. Defendant asserted that decedent had voluntarily enrolled in the medical plan by executing an enrollment agreement and was thereafter provided with a handbook detailing the enrollee’s rights and responsibilities per the plan. Defendant alleges that they did not undertake any tort duty to the decedent, and that a breach of contract should not be considered a tort.
Defendant further asserted that they developed a care plan for decedent which recommended that she be provided with a home health aide to assist with her daily living activities. However, as a Medicaid Managed Long Term Program (MLTCP), Defendant was not required or licensed to provide any direct patient care services. While Defendant’s nursing staff provided organizational and administrative services, they did not provide medical or nursing care treatment which was to be ordered and supervised by decedent’s personal physician.
Plaintiff’s expert opined that Defendant did provide direct medical and nursing care to decedent, as they visited, assessed and reassessed her medical condition, made specific determinations and arrangements related to her care and treatment, and coordinated her care, treatment and services. The expert further stated that Defendant did not meet the standard of care in its services to decedent.
The Court held that Plaintiff had raised triable issues of fact with the submission of the expert opinion, and that this poses the question as to whether Defendant may be held liable for medical malpractice as opposed to breach of contract. The Court therefore denied Defendant’s motion.
Legislative Update for Litigators (and Friends)
By: Anastasia M. McCarthy [email protected]
I hope you are all in good health and spirits. There’s not much new and exciting in the McCarthy household (unless the fact that it snowed 24 hours after we opened our pool is exciting). We’ve finally hit our stride in the work-from-home vs. childcare battle and have even had time to watch a few movies in the evenings. We highly recommend Onward (Disney Plus) and Knives Out (on demand).
This month’s column focuses on some state-wide developments that impact the day-to-day handling of civil tort claims. If you have any questions, or are looking for advice on the handling of a pending claim, please let us know. Although this column focuses on the happenings in state court, we are also able to answer your questions about the happenings in federal court as well.
And now, I will leave you with this meme, which has become relevant to the lives of many: