Premises Pointers - Volume III, No. 12


Premises Pointers
Watch your step!

Volume III, No. 12
Thursday, May 14, 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

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 elseis 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 [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]

Dear Readers,
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:

What’s going on with the courts?
As many of you know, New York’s civil court system ground to a swift halt as the number of COVID-19 cases statewide rapidly increased and the NY PAUSE went into effect.  Not only have the courthouse doors themselves been closed, but the court system’s virtual doors have been barred too. Until very recently, absolutely no documents could be electronically transmitted to state courts—not Stipulations of Discontinuance, responses to pending motions, Answers to Complaints, or new claims.  All state court appearances were postponed indefinitely and motion and trial practice remained in limbo.
Slowly, signs of life are returning to the courts. The Appellate Division is allowing appeals to be perfected and trial court judges and judicial law clerks have started conducting virtual pretrial and settlement conferences by telephone and Skype. The Eighth Judicial District’s ADR program has resumed settlement negotiations as well.  The current focus for the trial courts is clearing the backlog of pending motions and brokering settlement where possible.  The court’s e-filing system has also, to a minor extent, re-opened for civil filings.  Parties can now file settlement documents to close out files, motion papers, and requests for court conferences.  Answers to Complaints and new claims remain on hold and, unfortunately, the question of when civil trial will resume remains an open question.
So, what does all this mean for the defense of claims? 
For the next several months, the court will be laser-focused on case resolution, whether by settlement or motion practice.  This means repeat settlement conferencing with the court, a push for mediation and arbitrations, and potential referrals to the State’s various ADR parts.  Although parties still have an unequivocal right to discovery and, ultimately, jury trials, there will be a concerted effort to resolve disputed claims through other means where possible. It will be expected that parties cooperate with efforts to move discovery forward to the extent possible, and clients with trial-bound civil claims should be prepared for delays in getting back onto the court’s trial calendar. 
What if the courts closed before an Answer could be filed or Discovery Demands served?
All pleadings, whether Complaints for new claims or Answers, are still outside the scope of permissive e-filings at this time.  Luckily, Governor Cuomo has tolled statutes of limitations and prohibited default judgments for the failure to timely Answer.  Even though we are unable to file Answers, it is still worth preparing and serving your proposed Answer and discovery demands on opposing counsel.  This will keep paper discovery moving and ultimately to allow for a more thorough analysis of liability and damages earlier in the life of a case.
What if a motion for summary judgment was pending on my case?
As the courts return to work, their first order of business is to clear as many pending motions from their dockets as possible.  This means that opposition papers can now be filed and that Judges will be issuing decisions and rulings as soon as practicable.  In some cases, Judges may want to hear oral argument from attorneys by Skype or telephone, however, we expect the majority of motions to be decided based on the papers submitted to the court alone.

What if my case was expected to go to trial in the next few weeks or months?

Hang in there.  While you may, of course, consider alternatives to trial (like Arbitrations, mediation, or other forms of alternative dispute resolution), parties still have the right to take their case to a jury.  Ultimately, civil litigants may be in for a lengthy wait, since criminal jury trials are currently set to resume before civil trials do.

**Since the writing of this article, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced that Upstate courts in counties where safety benchmarks required for re-opening have been met, will slowly return to work beginning May 18th.  This means that new case filings (and Answers) will be accepted in those counties.  Judges’ chambers and Clerk’s offices are set to re-open as well.  The following counties will begin the gradual reopening process on May 18th:  Broome, Chemung, Chenango, Delaware, Schuyler, Steuben, Tioga, Tompkins, Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates, Fulton, Herkimer, Montgomery, Oneida, and Schoharie.  And these counties will begin on May 20th: Clinton, Essex, Franklin, Hamilton, Jefferson, Lewis, and St. Lawrence.

A number of special safeguards will be in place for the foreseeable future, including: all courthouse visitors will undergo COVID-19 screening and will be required to wear a mask (the court will also provide masks as needed); areas of the courthouse, including courtrooms, will be marked to ensure physical distancing; hand sanitizer will be made available throughout the building; plastic barriers and other devices will be installed; buildings open to the public will be regularly sanitized.

What is happening with the Child Victims Act’s look-back window?
Originally, the CVA provided potential plaintiffs over age 55 (or whose claims were previously dismissed for lack of timeliness) with one year, beginning in August of 2019, to revive claims for childhood sexual abuse. Earlier this year, a bill was introduced in the NY Senate to extend the window until August, 2021, but the bill’s progress through the legislative process was hampered by the COVID-19 outbreak in the state.
Now, with the disruption of the Court system and the inability to file new lawsuits, Governor Cuomo has extended the look back window by Executive Order, allowing claimants until January 14, 2021 to file their otherwise time-barred Complaints.  Calls for further extension of the deadline, to August 14, 2021, are already being heard from various NY State Legislators—whether that extension will occur by Executive Order or legislative action remains to be seen.

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Greetings Subscribers!
I hope this edition finds you and your families well. As we navigate the challenges of working from home and safe social distancing, know that we are here to help you in any way we can; just reach out. If you enjoy basketball like me and need some sports entertainment in your life, then I highly recommend you check out The Last Dance on ESPN about Michael Jordan’s last season with the Chicago Bulls!
Although courts are starting to slowly issue decisions these last few weeks, there is not much to choose from this month. I found the Ruiz case, which involved a motion to vacate the note of issue and certificate of readiness. It is very important to note the time requirements for such a motion, as defense counsel only has twenty (20) days after service of a note of issue to file such a motion demonstrating in what respects the case is not ready for trial. Please don’t be afraid to shoot me an email if you have any questions. Until next issue, stay safe and healthy…

04/09/20          Ruiz v Park Gramercy Owners Corp.
Appellate Division, First Department
Defendants’ motion to vacate Plaintiff’s note of issue granted as she filed the note of issue and certificate of readiness before providing defendants with authorizations enabling them to obtain her out-of-state medical records.
The trial court denied defendants’ motion to vacate the notice of issue. The First Department unanimously reversed and granted the motion. A note of issue should be vacated when it is based upon a certificate of readiness which contains an erroneous fact, such as that discovery has been completed (see Pua v Lam, 155 AD3d 487 [1st Dept 2017]; see also 22 NYCRR 202.21[e]).
In this case, the First Department held the motion should have been granted since plaintiff had not provided authorizations allowing her out-of-state medical providers to release her medical records to defendants, as well as certain receipts of expenses incurred as a result of the injuries, before filing the note of issue and certificate of readiness.
Slip-and-Fall Law
By: Brian M. Webb [email protected]

Greetings Readers:
Hopefully everyone is staying safe and in good spirits while we all continue to weather the current health crisis affecting the World.
While being isolated certainly can trying at times, it is important to use this time to appreciate the little things in life.  As far as how things are going in my household, the current lockdown has coincided with truly remarkable time in the development of my nine-month-old daughter.  When all of this started, she was just starting to master how to effectively crawl and elude her mother and me.  Now, only about a month later, she is crawling up stairs and trying her hardest to stand on her own.  We have had to expedite our “baby-proofing” of the house which has provided a welcome distraction to the monotony of working from home.  If she continues to develop at this pace, there is a decent chance that she may be authoring the June edition of this column!
Given that the New York Courts are only just now beginning to try their hardest to resume normal operations, April did not produce a tremendous of a case law in the slip-and-fall realm.  As such, this month’s column highlights some cases from earlier this year that nevertheless stress some important legal concepts and can guide effective motion practice moving forward.  The first case deals with the troublesome situation presented when a plaintiff has a completely unwitnessed and, quite frankly suspect, fall.  Luckily the First Department concluded that a plaintiff’s own version of an incident, by itself, is not sufficient to sustain summary judgment in the plaintiff’s favor.  The second case addresses the “storm-in-progress” rule and holds that the same can absolve a landowner of a duty to clear their property up to five and a half hours after actual precipitation stops.  Finally, the last case deals with the odd situation of a plaintiff alleged that they were struck by a car due to a defect in a sidewalk, a unique but interesting fact pattern for sure.
Stay safe everyone and hopefully by the time of the June edition, we will be well on the path back to somewhat normalcy!
March 26, 2020           Pabon v. 940 S. Blvd., LLC
Appellate Division, First Department
First Department overturns lower court’s grant of summary judgment to plaintiff due to the lack of any corroborating evidence concerning his alleged fall.
Plaintiff was allegedly injured when he tripped and fell on a sidewalk abutting property owned by the defendants.  The wrinkle in this case is that plaintiff’s fall was unwitnessed and he did not even seek medical treatment until “several weeks” after the incident.  In move typically used by plaintiffs in rear-end motor vehicle accident cases, plaintiff’s attorney moved for summary judgment prior to any depositions taking place, presumably because the attorney figured there simply was no evidence to refute whatever plaintiff was going to testify to.  The trial court agreed and granted plaintiff summary judgment on liability.
In overturning the summary judgment order, the First Department reasoned that “since the manner in which [the event] occurred is within his exclusive knowledge… defendants should have the opportunity to subject plaintiff’s testimony to cross-examination to have his credibility determined by a trier of fact.”  In other words, the First Department appears to be doing exactly what it is not supposed to do when deciding summary judgment motions: weigh the credibility of a party’s testimony. 
March 3, 2020             Ross v. Lewis
Appellate Division, First Department
First Department unanimously overturns lower court’s denial of summary judgment to landowner defendants in “storm-in-progress” case.
Plaintiff was injured when she slipped and fell on snow and ice on the front steps of her apartment building.  She brought suit against the property owner on a theory of negligent maintenance of the property.  Defendant brought a summary judgment motion on the grounds that his duty to remove snow and ice from the subject steps was temporarily suspended due to the storm-in-progress rule.
The key facts of the case, as in all storm-in-progress cases, concern the timing of the weather conditions compared to the time when the incident occurred.  In this case, the plaintiff testified that she fell at 8:00AM on the day in question.  The weather records and accompanying affidavit from defendant’s expert established that approximately 27 inches of snow fell in a recent “blizzard” and that said snow did not stop until, at the earliest, 2:30AM on the day of the fall.
In the course of reversing the lower court’s denial of defendant’s motion, the First Department held that the five-and-a-half hours between 2:30AM and 8:00AM was not a reasonable enough period of time to require defendant to clear the property.  While not stating a clear cut time limit for what does or does not constitute a long enough time, the Court appears to have focused on the severity of the prior day’s storm and determined that the “blizzard conditions” played a role in absolving defendant of any duty to clear the snow and ice.
February 6, 2020         Gogu v. Gap, Inc.
Appellate Division, First Department
First Department affirms lower court’s denial of summary judgment to defendant landowners on grounds that sidewalk defect may have contributed to a pedestrian being struck by a car.
Plaintiff was injured when he was struck by a car that left a street and drove up onto a sidewalk.  In addition to suing the driver, the plaintiff also sued an adjacent landowner, claiming that plaintiff fell due to a defect on a sidewalk and, had he not tripped, he would not have been hit by the car.  The landowner moved for summary judgment on the issue of liability in the trial court and was denied.
In affirming that denial of summary judgment, the First Department focused on the specific facts of the case.  To wit, it highlighted how the plaintiff’s explanation for how tripping on the sidewalk caused him to not be able to avoid the car was “not inherently incredible” and “not so improbable as to render it physically impossible.”  To support that conclusion, the Court highlighted how plaintiff was specific in his testimony about the hole that he tripped on and identified it consistently throughout.  Lastly, the Court stressed that the fact that other pedestrians in the area, who did not trip, were all able to avoid the car precluded summary judgment on the issue of the driver being the sole proximate cause of plaintiff’s injuries
Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Robert E.B. Hewitt III [email protected]

Dear Readers,
I want to first express my congratulations to Jody Briandi, who is now Managing Partner of the firm. I know she will lead it to even greater heights in the years ahead. I hope all of you readers, and your families are safe in these uncertain times. There will be better days ahead.
Unfortunately, no cases involving dog bites, animal liability, or elevator and escalator accidents were issued since the last edition. Things seemed to have slowed down as part of the virus. The Appellate Courts are moving again and I expect to have some cases for you next edition.
Until next time,
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]

V. Christopher Potenza
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]
Read Past Editions of Premises Pointers
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