Premises Pointers - Volume III, No. 2


Premises Pointers
Watch your step!

Volume III, No. 2
Monday, July 15, 2019
A Monthly Electronic Newsletter


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


Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Swimming Pool and Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Toxic Exposures
Municipal Liability



Summer and summer vacations are finally here and in full swing.  Hope you are enjoying yours.  I just returned from 2 weeks in Italy and am slowly getting over a bit of jet lag, but it was well worth it!  Hard to say what the best part was – from the food to the history and scenery – it’s a beautiful country.
We are excited to introduce attorney Michael J. Dischley, who joins attorneys Brian F. Mark and Robert E. Hewitt in our Melville, NY office.  Michael’s background before joining Hurwitz & Fine includes handling premises liability and labor law claims, which makes him a great addition to our downstate team.  Brian, Rob and Michael handle matters in all five boroughs.
On the trial and verdict front in the world of slip and falls, last Thursday, a plaintiff in Tallahassee, Florida was awarded $2 million dollars, one of the biggest verdicts in Leon County, following a slip and fall in defendant’s store.  Plaintiff argued defendant knew its ice bins leaked causing an unsafe condition and did not take proper steps to repair the defect.  And on June 30th, an Ohio woman who tripped and fell on a wet floor sign at a casino was awarded $3 million dollars.  The sign had been placed there earlier in the day, but another guest had tipped it over and the plaintiff did not see it on the floor.  The casino argued the sign was visible and that it was the plaintiff’s fault for not seeing it, but the jury didn’t buy this claim, finding the casino failed to use ordinary care and failed to maintain a safe environment.
As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, e-mail me at [email protected]. Questions and comments always welcome!

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.



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

This month, we have two cases involving third-party assaults – one at a local McDonald’s restaurant and the other at Howard Johnson’s Hotel.  In both cases, the court determined more should have been done by the restaurant and hotel due to the history of prior criminal conduct at both locations.  Significantly, the plaintiff’s culpable conduct and potential involvement in the altercation at the hotel did not preclude summary judgment against the hotel under the Court of Appeals 2018 decision in Rodriguez v. City of New York.  Also covered in this month’s column are several summary judgment decisions and a store surveillance issue that resulted in an adverse inference against the store that failed to maintain all footage involving the plaintiff’s accident. 

06/17/19          Hegbeli v. The TJX Companies, Inc.
Supreme Court, New York County, New York
Store’s failure to maintain surveillance footage results in adverse inference ruling

Plaintiff claimed injuries while shopping at Marshall’s store when a table on display allegedly fell and struck her foot.  Plaintiff moved for sanctions claiming defendant failed to preserve video footage  and failed to produce other materials requested.  Defendant opposed the motion and cross-moved for summary judgment.  During discovery, two employees of Marshall’s testified to having viewed video that showed a woman in close proximity to a table holding her foot.  If the witnesses are believed the video did indeed exist that capture some aspect of the incident.  The video produced by defendant during discovery did not depict the scene testified to by the witnesses. In opposing the motion, defendant was not able to provide a satisfactory explanation for the discrepancy.  Therefore, the court ruled plaintiff was entitled to an adverse inference charge with respect to the missing surveillance video displaying the woman in the vicinity of the table as testified to by the witnesses.  The court denied plaintiff’s motion to strike defendants’ answer and denied plaintiff’s other requests for liability determinations in plaintiff’s favor.

06/20/19          Gagliardi v. Compass Group, USA, Inc.
Appellate Division, First Department
Melted ice cube not a dangerous condition created by defendant, nor did defendant have notice of it - Plaintiff’s complaint dismissed.

Plaintiff allegedly slipped and fell in defendant’s cafeteria. Defendants submitted evidence including their cleanup inspection schedule which indicated that the cafeteria floor was inspected every 15 minutes and was inspected about two minutes prior to plaintiff’s fall, and the testimony of the cafeteria manager that no liquid was observed on the cafeteria floor.  In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s claim that the cafeteria’s employees created the allegedly slippery condition by allowing an ice cube to fall on the floor is speculative. Plaintiff testified that he did not observe anything on the floor prior to his fall, he did not see the substance that he slipped on, and he had no idea how long the liquid substance was on the floor or how it got there.

06/26/19          Flaccavento v. John’s Farms
Appellate Division, Second Department
Defendant’s motion for summary judgment granted by Supreme Court but reversed on appeal due to conflicting deposition testimony

 Plaintiff tripped and fell on a floor mat in the produce section of defendant’s store. The Supreme Court granted the defendants’ motion, and the plaintiff appeals.  On appeal, the Appellate Division found the defendants failed to meet their initial burden. In support of their motion, the defendants submitted transcripts of the deposition testimony of the plaintiff and their store manager, Marvin Rubio. Rubio’s description of the produce section, including the floor mats, contradicted the plaintiff’s description of the produce section and the mat at issue.  Therefore, the court found a question of fact existed.

07/03/19          Davis v. Commack Hotel, LLC
Appellate Division, Second Department
Appellate Court determined hotel should have done more to protect guests from assaults and criminal activity – summary judgment appropriate even if culpable conduct is assigned  plaintiffs’ decedent

Plaintiff’s 18–year–old son was stabbed to death during a party in a room at a Howard Johnson Hotel, who moved for summary judgment, which was denied by the Supreme Court.  On appeal, the Appellate Division held “a possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected, but the criminal conduct at issue must be shown to be reasonably predictable based on prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location” The plaintiff presented evidence establishing an extensive history of criminal activity at this Howard Johnson location; including: a gunpoint robbery of a guest; an assault with a clothing iron; a report of a masked individual attempting to gain entry to the hotel; large parties in hotel rooms with unruly and intoxicated guests in numbers exceeding the hotel’s occupancy policy; numerous thefts; prostitution; and drug use and sales.  Howard Johnson’s principal testified at his deposition that the hotel normally employs security, but on the night in question, the security personnel did not “show up.”  The court determined the criminal activity of the kind that led to the decedent’s death was foreseeable, and that Howard Johnson failed to take “minimal precautions” to protect visitors on its premises.  Significantly, contrary to Howard Johnson’s contention, the plaintiff was not required to demonstrate that the decedent was free from comparative fault to establish the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of Howard Johnson’s liability (see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 101 N.E.3d 366).

07/10/19          Martin v. The Home Depot
United State District Court, Southern District of New York
Dismissal of lawsuit required because complete diversity did not exist

Plaintiff filed a product liability lawsuit against Home Depot and General Electric due to injuries sustained at a Home Depot Store in Pennsylvania.  General Electric filed a motion to dismiss for lack of subject matter jurisdiction.  When filing the lawsuit, plaintiff attempted to invoke subject matter jurisdiction due to diversity jurisdiction.  Plaintiff alleged he was a citizen of New York.  Since General Electric was also able to establish it was a citizen of New York because it is incorporated in New York, complete diversity did not exist.  Therefore, plaintiff’s complaint was dismissed without prejudice.

07/10/19          Whittingham v. McDonald’s Corporation
Appellate Division, Second Department
A property owner must guard against criminal activity when same is reasonably foreseeable

As the plaintiff was waiting in line inside a McDonald’s, two girls in line behind him began to fight. The plaintiff tried to intercede to help break up the fight and was then assaulted by several other people who had been watching the fight. After the incident, the plaintiff sued McDonald’s, alleging the owner was negligent in failing to provide adequate security at the subject premises. The owner’s motion for summary judgment was denied.  On appeal, the Appellate Division held that “a property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so.”  However, “the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.”  In light of the multiple prior incidents, including 15 prior violent incidents, that had occurred at the subject location, there was a question of fact regarding whether the security measures taken by the defendant were sufficient to ensure the safety of the patrons on the date of the incident.  Thus, the defendant’s motion was denied.


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

Greetings.  its summer – here’s hoping that everyone can carve out some sitting on the deck, listening to music, beer in hand time.  Things are running at a different pace this summer, mostly because the kids are getting older.  My oldest is working a job that doesn’t get out until 9:30-10:00 pm, meaning she leaves during the day and isn’t around for dinner.
Musically, I had the opportunity to see both Jason Isbell and the 400 Unit and Little Steven and the Disciples of Soul in the past week.  The next two weeks brings three good shows - the Struts, Psychedelic Furs and the Menzingers.  My niece’s wedding on the 27th takes Lyle Lovett and His Large Band off the table.  The Struts and Furs’ shows are outside – here’s hoping for good weather.
The three cases discussed below all address the same issue – a negligent supervision claim and a defense argument that the injury producing incident was spontaneous and therefore no amount of supervision could have prevented the injury.
July 10, 2019              MP v. Central Islip Union Free School District
Appellate Division, 2nd Dept.
Because incident between kindergartners was spontaneous, the defendant school district was negligent in how it supervised the students.
Infant plaintiff was a kindergartner student at the defendant’s school.  She was injured when another kindergartner pushed her while the class was lining up in the hallway to go to the next activity.  On motion, the defendant established a prima facie case that the incident happened in such a short period of time that no level of supervision could have prevented the incident.  Plaintiff was unable to raise a question of fact and the matter was dismissed.
The decision makes no mention of any claim that there was a prior history involving the student who allegedly pushed the infant plaintiff.

June 19, 2019             Jackson v. Brentwood Union Free School District
Appellate Division, 2nd Dept.
Locker room incident was occurred so quickly that the district could not be liable for a lack of supervision.
The infant plaintiff was a fourth grade student who was injured in an accident occurring in a school locker room. Another student accidently bumped into plaintiff’s out stretched arm, causing plaintiff to fall and break his wrist. The district was granted summary judgment, with the court holding that the accident was “inadvertent and unanticipated, and that no amount of supervision would have prevented the spontaneous and accidental collision.”
June 26, 2019             C.M. v. Gasiorowski
Appellate Division, 2nd Dept.
Plaintiff’s inability to state what caused her fall meant she could not raise a question of fact in response on defendant’s motion for summary judgment based on adequate supervision.
Infant plaintiff was injured when she fell from a swing in the back yard of defendant’s home.  Defendant moved for summary judgment arguing that the incident was spontaneous and that the accident was not caused by a lack of supervision.  Plaintiff could not identify what had caused her fall. And therefore any suggestion as to what had happened was speculation and therefore could not be used to raise a question of fact to rebut the defendant’s motion.


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

Happy belated Independence Day and Canada Day to our friends north of the border.  The holiday week was spent on the Canadian shores of Lake Erie with various Potenzas flying in for a mini family reunion.  It was glorious week of food and sun, except for a “minor” skirmish between 400 or so American and Canadian youths that occurred around midnight on the beach directly in front of the cottage.  The Mounties were called, and the beach was cleared, but the fight merely continued through the streets of town.  Apparently, it all started with a debate over how to spell center (centre?).

There is no summer shut down just yet on toxic tort news.   With the Legislative Session having just wrapped up, carriers can rejoice, at least for the time being, that two important bills, bad faith and a ban on lead paint exclusions, did not pass this time around.   A very interesting piece of legislation did pass however involving a change in how defendants can obtain a set-off for a co-tortfeasor’s liability pursuant to General Obligations Law § 15-108.  Defendants will now be required to elect prior to trial whether to take the monetary offset from the settled tortfeasor, or the yet-to-be established percentage of liability to be determined by the jury.  I am very interested to see how this plays out in asbestos litigation, where settlements are highly confidential and pretrial disclosure of settlement amounts prior to a verdict have always been denied.  Will defendants be forced to make this decision without knowing either the settlement amount or liability percentage?  Read more here

There are a few interesting asbestos decisions, including the Court of Appeals addressing the burning question of whether a coke oven is a product or building.  The First Department issued three defense friendly decisions, significantly reducing damages in two excessive mesothelioma verdicts, and reversing a plaintiff’s verdict in an asbestos talc claim.

In lead paint news, a potentially dangerous decision from the Fourth Department denying a defendant’s statute of limitations motion for failure to establish an accrual date for a latent injury.

And now for this month’s dad joke:

Where was the Declaration of Independence signed?
At the bottom.

6/20/19            DiScala v. Whittaker Clark & Daniels, Inc., et al.  
First Department
Causation opinion derails plaintiff’s verdict is asbestos talc claim.

The First Department vacated a verdict against Whittaker Clark & Daniels in an asbestos talc claim, finding that plaintiff’s expert failed to establish specific causation.  Plaintiff failed to adduce evidence that the decedent was exposed to sufficient levels of asbestos in defendant's talc to cause mesothelioma. Plaintiff's causation expert merely opined that the decedent's exposure to unspecified “detectable” or “significant” levels of asbestos in the talcum product she used caused her mesothelioma. Plaintiff was not required to quantify the decedent's exposure level with exact mathematical precision, however the evidence failed to establish a level of exposure sufficient to cause the illness.

6/18/19            Matter of Murphy-Clagett v A.O. Smith Corp.
First Department                     
5/16/19            Ford v. A.O. Smith, et al.
First Department                          
First Department reduces excessive mesothelioma awards.

In Murphy-Clagett, the jury awarded the estate of the decedent plaintiff Pietro Macaluso $25 million for the decedent's pain and suffering, $17 million to the decedent's son for loss of parental guidance, and $18 million to the decedent's daughter for loss of parental guidance.  The First Department found that these damages awards deviate materially from what would be reasonable compensation and remanded for a new trial on damages unless plaintiff stipulated to reduce the damages for the decedent's pain and suffering to $4 million, the award for loss of parental services for the decedent's son to $1 million, and the award for loss of parental services for the decedent's daughter to $1 million.
Similarly, in Ford, the jury awarded the now deceased plaintiff Frank Gondar $12 million for past pain and suffering and $10 million for future pain and suffering.   After remittitur, plaintiff, stipulated to an award of $5 million for past pain and suffering over a period of 17 months, and $2 million for future pain and suffering for one month.  The First Department unanimously modified, and vacated the award for future pain and suffering only, and ordered a new trial of those damages, unless plaintiff stipulates to reduce the award for future pain and suffering to $500,000.  While this appears to be a victory as $500,000 is certainly well-below $10 or even $2 mllion, this case would nonetheless appear to set a pretty high bar for damages calculations on mesothelioma claims at $500,000 per month.

6/7/19  Chaplin v. Tompkins, et al.
Fourth Department                      
Defendants fail to establish accrual date of injury in seeking to dismiss lead paint claim on statute of limitations.

This is a potentially dangerous decision and quite frankly, I wish the Fourth Department had expounded on their reasoning a bit more.  Plaintiffs commenced this action to recover damages for injuries allegedly caused by their childhood exposure to lead paint in two apartments.  The trial court dismissed the claim against both property owners on statute of limitations grounds.  The Fourth Department reversed, finding that neither defendant established the relevant accrual date of plaintiffs' claims for injury caused by the latent effects of lead paint exposure and, in the absence of such evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on those claims.  This begs the question of how a defendant establishes an accrual date of a latent injury that occurred in a child decades ago? I am sure this issue will be continued to be litigated, but this vague decision certainly gives plaintiff’s fodder to pursue otherwise untimely claims.


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

Dear Readers,
Summer is in full swing and, with only FIVE weeks left until the arrival of the Littlest McCarthy, the McCarthy family’s air conditioning is on full blast. Also on full blast for the last six months? The NY State Legislature, which has passed numerous pieces of landmark legislation.  Here at Premises Pointers, we’ve talked about the Child Victims Act and a recent act in which NY abolished the religious exemption to mandatory vaccination requirements.  Now, even as the Legislature enjoys a summer recess, we bring you one more legislative update—this time about —"An Act to amend the vehicle and traffic law, in relation to bicycles with electric assist and electric scooters[.]”
What does the law do?
            Gives individual municipalities authority to decide whether (and if so, to regulate the use of) e-scooters and electric assist bicycles may be used and rented within the municipality’s boundaries—the law applies to such bicycles and scooters owned by individuals and those provided by ride-sharing companies. The law provides specific parameters for allowable scooters and bicycles, limits permissible operators and passengers to individuals at least 16 years of age, and further requires, prohibits, and/or allows:

  • Requires that “in addition to complying with all of the rules, regulations and provisions applicable to bicycles contained [in § 1242 of the VTL], bicycles with electric assist shall operate in a manner so that the electric motor is disengaged or ceases to function when the brakes are applied or when the rider stops pedaling, or operate in a manner such that the electric motor is engaged through a switch or mechanism that, when released, will cause the electric motor to disengage or cease to function.”
  • Prohibits operation and/or parking of said bicycles and/or scooters on public sidewalks except as authorized by local law or ordinance.
  • By June 2021, no person or corporation in the business of selling or leasing said bicycles or scooters shall lease applicable equipment unless such bicycle or scooter has the following information permanently affixed, in a prominent location:a manufacturer’s label with the class, maximum motor-assisted speed, and motor wattage (scooters must additionally display the number of persons the scooter is designed and equipped to carry).By 2021, manufacturers and distributors of such bicycles and scooters shall establish a process by which an owner of an electric assist bicycle may request and obtain a manufacturer’s label with the foregoing information.Failure to comply with these requirements is punishable by civil fine of up to $50.
  • For bicycles and scooters owned by ride-sharing companies (“shared bicycle systems”) and leased to individuals in the community, all trip data, personal information, images, videos, and other recorded images collected by the company must be obtained for the exclusive use of the company and cannot be sold, distributed, or otherwise made available for any commercial purpose and shall not be disclosed or otherwise made accessible except to the person who is the subject of the data, or if necessary, to comply with a court order, judicial warrant, or subpoena. The company may use the information obtained in the operation of the shared bicycle system.Personal information is defined as information that identifies an individual, including but not limited to name, address, telephone number, and the type and form of payment, including credit car number, debit card number or other payment.
  • Requires that traffic laws apply to persons using electric scooters, including local laws related to operating electric scooters, clinging to other vehicles (not allowed), riding on roadways, shoulders, and lanes reserved for non-motorized vehicles (must use bicycle lanes, or ride on far right-side curb lane, but must heed pedestrians, those moving at a slower pace, animals etc. and when riding in a group, must be single file); lamps (required at night), audible signals, (also required, but may not include a whistle or siren) and brakes (required); leaving the scene of an accident (this is a criminal offense). Ultimately “Every person riding an electric scooter upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle and the rider of a bicycle [except] as to those provision of this title which by their nature can have no application.”
  • No electric scooter may carry more persons than the number the scooter is designed and equipped to carry.Passengers may not be carried in a pack fastened to the operator or fastened to the electric scooter.
  • No person operating an electric scooter may carry any package, bundle or article that prevents the operator from keeping at least one hand on the handlebars or which obstructs his or her view in any direction.
  • Operators must yield the right of way to pedestrians.

What kinds of equipment does the law apply to?
            Bicycles and scooters with motors of 750 watts or less and operable pedals, which fall within one of three classes:

  1. Class One Bicycles with Electric Assist—Bicycles with electric motors that assist the rider only when the person using the bicycle is pedaling and ceases to assist once the bicycle reaches 20 MPH;
  2. Class Two Bicycles with Electric Assist—Bicycles with electric motors that are used exclusively to propel the bicycle and that is not capable of aiding the driver when the bicycle reaches 20 MPH;
  3. Class Three Bicycle with Electric Assist—Solely within cities with populations of one million or more, a bicycle with an electric motor that may be used exclusively to propel and that is not capable of assisting the driver when the bicycle reaches 25 MPH.
  4. And electric scooters, defined as devices weighing less than 100 pounds with handlebars, a floorboard that the operator stands upon, and powered by an electric motor and/or human power.The maximum speed allowed is 20 MPH on a paved, level surface when powered solely by the electric motor.

What are the concerns/risks for municipalities that choose to welcome these devices?
            Municipalities that plan to allow use of electric bicycles or scooters must examine and amend local ordinances to address additional safety concerns.  Specifically, municipalities should take care to safeguard public sidewalks to prevent collisions and clearly define when (seasonally and time of day or night) and where people may use electric scooters and bicycles.  Notably, critics of the law point out that the law does not require riders to utilize any kind of safety equipment, such as helmets or reflective clothing.


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

Greetings Subscribers!
It has been a crazy NBA offseason so far with all the duo stud pairings, especially in the Western Conference. I cannot remember this much action so early in free agency. There are only a few more weeks before we gear up for the (long) fantasy football season, so I am enjoying as much of my offseason as possible without work getting in the way.
This month, I report on a ice skating case involving reckless behavior that is over and above the usual dangers inherent in the activity of skating, where the issue of whether the proprietor was negligent in supervising the skaters turned on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision.
Until next time…

06/19/19          Nesbitt v Advanced Serv. Solutions
Appellate Division, Second Department
Defendants’ motion to compel should have been denied by the trial court because defendants were not entitled to an authorization seeking a Walgreen Pharmacy to provide “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information”
Plaintiff allegedly was injured as a result of a snow and ice conditions and refused during discovery to provide authorizations for records from Walgreens relating to “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information”, claiming that information was irrelevant. The trial court granted defendant’s motion to compel plaintiff to comply with certain discovery demands.
The rule is that “a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue.” However, Public Health Law § 2785(1) provides that “…no court shall issue an order for the disclosure of confidential HIV related information.” Here, the Second Department found the only exception to that prohibition that is pertinent in this case required a motion showing “a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.”
As defendants failed to proffer any showing of a compelling need for disclosure related to the “HIV-Related Information” nor submitted an expert affidavit or any other evidence that would establish a connection between it and the cause the incident or was linked to plaintiff’s ability to recover from his injuries or prognosis for future enjoyment of life, the Court reversed and denied defendant’s motion to compel the authorization for Walgreens pharmacy records.

07/03/19          LaBuda v LaBuda
Appellate Division, Third Department
The record did not allow the trial court to dismiss plaintiff’s complaint as sanctions for plaintiff’s failure to respond to discovery and preserve all information contained in his cell phone, since it was unknown whether the electronic information that defendant requested has actually been destroyed and, thus, whether and to what extent defendant has been prejudiced.
Plaintiff alleged defendant operated an ATV on his property without permission and struck him twice. After joinder of issue, defendant served plaintiff with demands seeking the video stored on plaintiff’s cell phone and all related metadata. In September 2017, defendant asked plaintiff to preserve all evidence involved in the incident, including the phone and any video taken of the incident. By the time plaintiff responded in May 2018 to the demands, he traded in his phone for a new one in February 2018.
The trial court granted defendant’s motion to dismiss the complaint for spoliation because plaintiff failed to comply with discovery, finding plaintiff was under an obligation to preserve the phone, that he failed to do so, and that the failure was prejudicial as it prevented defendant from examining the phone’s metadata to determine whether other photos and videos had been taken.

The Third Department reversed, since the record does not permit a full consideration of the extent that the spoliation of evidence may prejudice a party and whether dismissal will be necessary as a matter of "elementary fairness" by providing access to the alleged information the phone contained. Thus, the Court held the trial court will need to reexamine whether pertinent electric information has been lost as a result of plaintiff’s failure to preserve the phone, to what extent defendant has been prejudiced by that loss, and whether dismissal, an adverse inference charge or some other sanction may be appropriate.

07/10/19          Andriienko v Compass Group USA, Inc.
Appellate Division, Second Department
Defendants failed to establish their prima facie entitlement to summary judgment dismissing the complaint on the doctrine of primary assumption of risk.
Plaintiff, an experienced ice skater, allegedly sustained injuries when she was pushed down on the ice while skating at an ice rink owned by defendants. Plaintiff was injured by an unruly skater who had previously caused other skaters to fall. The trial court granted defendants’ motion for summary judgment dismissing the complaint, finding plaintiff assumed the risks inherent in skating at an ice rink.
The Second Department reversed as defendants failed to show that the incident was precipitated by a sudden collision common to skating which could not have been anticipated or prevented. Plaintiff’s deposition testimony was that, over the course of more than 20 minutes, two other skaters had been pushing each other, spinning, and skating against the flow of other skaters, which caused at least three other skaters to fall before plaintiff was injured.


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

I am happy to report that the Rochester Jazz Festival was a delight. The music was fabulous – we saw Southside Johnny & The Asbury Jukes, as well as the Empire Strikes Bass (ESB). ESB is a New Orleans traditional brass band that had several members jamming on trombones which was a lot of fun to watch. ESB also happens to be the initials of one of the members of our firm, so shout out to him for having the same initials as a fun band. The exciting cultural event for me this month is my trip to NYC to see Harry Potter and the Cursed Child play at the newly renovated Lyric Theatre. I am quite excited to see a large part of my childhood come to life on stage and will report back on my thoughts next month!
I have two elevator-related cases for you. The first case discusses the fact that a property owner is only liable for elevator-related conditions if they had notice, actual or constructive, of the alleged defect (which is the same rule that applies to most premises liability claims). The second case deals with another elevator accident, but actually tracks more of a procedural decision than a liability one. Read on for more information. 
Until next time,

06/26/19          Palladino v. New York City Hous. Auth.
Appellate Division, Second Department
Defendant had no notice of alleged elevator misleveling defect.
The plaintiff here is an EMT working for the NYC Fire Department when he was called to one of the defendant’s apartment buildings to assist in bringing a tenant to the hospital. While he was entering the elevator, as he was transporting the patient to the ambulance, he was injured when he stumbled stepping into the elevator allegedly due to misleveling.
Property owners can only be liable for an elevator-related injury when there is a defect in the elevator that the property owner has actual or constructive notice of. In this case, the defendant was able to establish that it did not have any notice of a misleveling defect in the elevator, thus the plaintiff’s claims were dismissed. The plaintiff also attempted to claim that res ipsa loquitur applied. Res ispa stands for the contention that the occurrence of an accident necessarily implies that there was negligence. The court did not find this argument had any merit however, because the plaintiff failed to show that the accident was one that would not ordinarily occur in the absence of someone’s negligence.

06/12/19          Shortt v. City of New York
Appellate Division, Second Department
CBA does not prevent plaintiff from pursuing judicial remedies
This case starts with the plaintiff allegedly sustaining injuries when she was in an elevator that began to jerk as it was ascending and ultimately came to a stop between floors above the third floor of the building. Plaintiff injured her back while the elevator was jerking up and down between floors and also when she had to jump to the third floor while being distracted.
The elevator was in a building (a school) that plaintiff worked in and she applied to the Department of Education (“DOE”) for a “line of duty injury” paid medical leave pursuant to the terms of a collective bargaining agreement (“CBA”) with the DOE. The DOE denied the application without providing plaintiff any reasons for its determination, but instead of appealing that decision through an arbitration hearing pursuant to the terms of the CBA, she commenced this action.
Thereafter, the DOE and the City of New York (hereinafter “the Defendants”) moved under CPLR 3211(a)(7) to dismiss the complaint on the basis that plaintiff failed to exhaust her administrative remedies under the CBA or that this action was barred by collateral estoppel and/or res judicata. Generally, an employee covered by a CBA which provides for a grievance procedure must exhaust the administrative remedies laid out before resorting to any judicial remedies. The Court found here however, that because the plaintiff sought to recover damages against the Defendants for pain and suffering based upon a negligence liability theory, not a contractual one, that her claims fell outside of the CBA. Thus, there was no need exhaust administrative remedies under the CBA. The Defendants contention that dismissal was also warranted under the theory of collateral estoppel and/or res judicata also failed because the Defendants failed to show that the issue the plaintiff sought to pursue was necessarily decided by the DOE when it denied plaintiff’s “line of duty injury” application. The claim was also not precluded under res judicata because it did not seek relief that she solely could have been awarded within the confines of the prior administrative hearing. Thus, plaintiff’s negligence claims against the Defendants are allowed to go forward.


Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Marina A. Barci
[email protected]


Read Past Editions of Premises Pointers




Hurwitz & Fine, P.C.
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874             

Long Island
535 Broad Hollow Rd., A-7, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313 

Corporate Woods, Albany, NY 12211
Phone: 518-786-1800, Fax: 518-786-1969

Additional Offices
Albion | Amherst | Niagara Falls | Palm Beach Gardens | Toronto
Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
© 2019, Hurwitz & Fine, P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.



Copyright © 2019, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202



Newsletter Sign Up