Premises Pointers - Volume III, No. 3


Premises Pointers
Watch your step!

Volume III, No. 3
Thursday, August 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



The one-year look back window for filing claims under the Child Victim’s Act, regardless of when the abuse took place, opened yesterday on August 14, 2019.  As expected, the filing of lawsuits began at 12:01 a.m. and continued throughout the day.  Over 100 actions have been filed in Erie County alone.  Attorney Anastasia M. McCarthy, who has been covering the CVA for Premises Pointers since the law was enacted in January, has prepared a Toolkit and offers advice on what to do if you or an insured is served with a Summons and Complaint.  Anastasia, along with our litigation and coverage teams, are available to answer questions and assist in navigating these claims. 
Another timely topic happening in real time is New York’s new Sexual Harassment Prevention Law.  Attorney Katherine L. Wood, Esq, who is an attorney in the firm’s Employment Law practice group where she focuses her practice in employment law counseling and litigation, covers the law in her most recent blog post: “New Sexual Harassment Prevention Law Enacted: What Employers Need to Know.”  We are also excited to have Katie as a guest contributor this month covering several employment law cases brought against retail and hospitality defendants.
And lastly, this week, we received word that 27 Hurwitz & Fine attorneys were named to the Upstate New York Super Lawyers and Rising Stars List, which recognizes no more than 5% of NY attorneys and no more than 2.5% for Rising Stars. In addition, 11 Hurwitz & Fine attorneys were recognized by Best Lawyers. We are proud to announce that many members of the Premises Liability team were included on these lists, which are compiled based on peer nominations, panel research, and attorney evaluations.
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.


By: Anastasia M. McCarthy [email protected]

Dear Readers,
Yesterday, the look-back window of the Child Victims Act opened in New York and our local court system in Western New York expects approximately 500 cases to be filed in the coming days. If you, or an insured, are served with a Summons & Complaint in the coming days, here’s where to start.  Special thanks to Dan Kohane for providing tip #1 below (and, if you are looking for more on insurance coverage, be sure to check out Coverage Pointers)!

    Child Victims Act Toolkit   


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

In addition to our traditional premises liability cases, i.e. slips, trips, falling merchandise and the like that I cover, this month employment law attorney Katherine L. Wood, Esq, is covering several employment cases for Premises Pointers.  Both matters involve discrimination claims – one against a retailer and the other against a hotel chain.    
08/09/19           MacAlister v. Millennium Hotels & Resorts, et al
United State District Court, Southern District of New York
Discrimination claim against company and company’s North American President not dismissed because Plaintiff alleged that individual defendants engaged in discriminatory conduct

Plaintiff, a Caucasian female over the age of 40, was employed by Millennium Hotels & Resorts as the Corporate Director of Sales and leader of the Global Sales Team of North America.  She was subsequently terminated from her position.  After her termination, she filed a lawsuit alleging discrimination and retaliation based on age, race, and gender under Title VII, the Age Discrimination in Employment Act, New York State Human Rights Law, and New York City Human Rights Law.  Her Complaint named the company as a defendant, but also named the company’s North American President, Vice President of Human Resources, and Senior Vice President of Human Resources as individual defendants.  While the Court dismissed the actions against the other two individual defendants, the case against the company’s North American President was not dismissed because the plaintiff alleged facts to support that he engaged in discriminatory conduct.  Among the relevant facts alleged were: calling the plaintiff a “nasty old white bitch,” moving plaintiff’s workspace to a converted closet, and not allowing plaintiff use of support staff.

08/13/19           Smith v. Macy’s Corporate, et al
United State District Court, Eastern District of New York
Pro se Plaintiff granted leave to file Amended Complaint despite failure to allege exhaustion of administrative remedies 

Plaintiff brought an action against her former employer, Macy’s Corporate, and its CEO alleging discrimination and failure to accommodate under Title VII and the Pregnancy Discrimination Act.  Discrimination lawsuits involve an exhaustion of administrative remedies requirement, which mandates that the party alleging discrimination must first file a Charge of Discrimination with the Equal Employment Opportunity Commission or local administrative agency (such as the New York State Division of Human Rights) prior to filing a lawsuit.  In this case, the plaintiff alleged only that she sent a letter to the company’s CEO complaining of discrimination but did not allege that she filed a Charge of Discrimination with an appropriate administrative entity.  Further, the alleged acts of discrimination occurred over two years before the filing of the lawsuit.  Administrative charges must be filed within 300 days of the discriminatory act.  Despite this, the Court permitted plaintiff leave to file an Amended Complaint to provide her with an opportunity to allege these facts.
07/31/19           Sarab v. BJ’s Wholesale Club
Appellate Division, Second Department
Wooden pallet at retail store not inherently dangerous and was open and obvious– summary judgment granted to defendant

Plaintiff allegedly tripped and fell over the corner of a wooden pallet which protruded from beneath a display of cantaloupes in the defendant's store. The defendant moved for summary judgment on the grounds the allegedly dangerous condition was open and obvious, and not inherently dangerous as a matter of law.  Defendant’s motion was granted.  The Appellate Division affirmed the decision finding the pallet was open and obvious and readily observable by the reasonable use of one's senses, and that the pallet was not inherently dangerous

08/07/19           Fortune v. Raritane Building Services Corporation
Appellate Division, Second Department
Summary judgment granted to defendant because plaintiff was unable to identify the cause of her fall

The plaintiff allegedly slipped and fell on the floor in the grocery store where she was employed at the time. As a result, she commenced an action against the contractor hired by her employer Whole Foods Market to clean the store.  The evidence relied upon by the defendant in support of its motion, which included a transcript of the plaintiff's deposition, establish that the plaintiff was unable to identify the cause of her fall and therefore defendant’s motion was granted.

08/07/19           Daniels v. Dairy Queen Grill & Chill
Appellate Division, Second Department
Appellate Court determined attack of restaurant patron was unforeseeable and unexpected – summary judgment granted to defendant.

Plaintiff was allegedly attacked inside the defendant's restaurant by four individuals. The complaint alleged the defendant was negligent in training its employees and failing to provide adequate security. In considering the claim and defendant’s motion for summary judgment, the court noted that an “owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.  Here, defendant submitted evidence that the attack was unforeseeable and unexpected.  are grounds for dismissal of the lawsuit.  While plaintiff claimed that the attack was orchestrated by the assistant manager on duty, the evidence submitted by the plaintiff was insufficient to raise triable issues of fact as to whether the assistant manager was acting in furtherance of the defendant's business and whether his conduct was reasonably foreseeable by the defendant and defendant's motion for summary judgment dismissing the complaint was granted.


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

Its mid-August, that magical time of the year for any household with kids.  The kids are keenly aware of just how many days of freedom they have left, trying to cram in all the things they planned for the summer (or perhaps thinking about starting that summer reading list).  The return of a definitive schedule sounds heavenly to household management.

It's been a good summer musically – more shows in the last 3-4 weeks than practical.  Got to see Philly rockers the Menzingers at the end of July (new album promised for the fall), an outdoor show by the Struts (unapologetic ‘70’s inspired rock and roll – think Queen, Led Zeppelin, The Rolling Stones and Aerosmith all rolled into one) and Texas Americana master Robert Earl Keen.  The next several weeks will bring a double bill of Social Distortion and Flogging Molly and a visit by Los Lobos.  If you ever get a chance to see Los Lobos, take it.  Everyone knows La Bamba, but that song barely scratches the surface of what they bring to the stage.

Not much to report on new releases – a swing through Ithaca on a college visit tour in July included a stop in a used record/CD store that focuses on punk/new wave/alternative/alt country/indie rock.  Great way to kill an hour or two and $20-30 bucks gets you 7-10 “new” discs.  You won’t find the newest releases in those places but there is always something interesting, especially if you can convince yourself that you really need to fill in those gaps in your collection.

I look at three case this week.  The first is a school supervision case that highlights the tie between physical custody of students and the duty to supervise.  The other two are late notice of claim cases.  In the first, a timely, on point investigations gave the defendants notice of the claim.  In the second, the failure to meet basic requirements in both the proposed notices of claim and the petition for leave to serve the claims was fatal.

As always, questions, suggestions, comments and/or pithy statements are always welcome.
August 7, 2019           R.L. v. New York City Department of Education
Appellate Division, Second Department
Department of Education not liable for a failure to supervise infant plaintiff’s dance group during unscheduled practice occurring off school property and when school was closed.

14 year old plaintiff was a member of a student dance group that was preparing to perform at a school event.  The school provided the group with space within the school to practice after classes and provided staff supervision.  Plaintiff was injured during a practice that took place on a school holiday, when the school was closed.  Because the school was closed, the group met to practice at another location (i.e. not at the school) and without school staff supervision.

Plaintiff’s claim that her injuries arose because of the school’s failure to supervise the practice was dismissed because the school’s duty to supervise arises from having physical custody of the students in its charge.  That custody did not exist where the practice occurred off school property and without any school staff involved with the practice.

July 24, 2019              Brown v. City of New York
Appellate Division, Second Department
Late notice of claim denied where petitioners failed to meet basic requirements for both the notices of claim and the application to serve them.

Over a several month period the City’s Fire Department conducted a series of training exercises in a residential apartment building. More than a year after the training ended, 5 residents of the building petitioned to serve late notices of claim, seeking to recover for emotional and property damages.  The trial court rejected all five notices of claim, a decision upheld by the appellate court. 

Three of the claims were rejected because proposed notices of claim were not included in the petition to the court.  The fourth was rejected because the proposed notice of claim “did not provide the time when, the place where, and the manner in which her claim arose, the items of damages or injuries, or the total amount claimed.”  The fifth claim failed on three grounds – petitioner did not provide a reasonable excuse for the late filing, the fact that City employees (i.e. the fire department personnel) participated in the training exercises did not give the City notice of the claim and petitioner did not demonstrate the City would not be prejudiced by the delay.

July 25, 2019              Downing v. New York City Housing Authority
New York Supreme Court, Kings County
Late notice of claim permitted in lead paint exposure case where the contamination was investigated within 90 days after being reported to the City’s Department Health.

The infant plaintiff lived with his mother in an apartment owned and operated by the City of New York and the City’s Housing Authority.  When the infant was 10 months old, testing revealed elevated levels of lead in his blood, consistent with lead paint poisoning.  The City Department of Health was notified and conducted an investigation.  The Department of Health also notified the Housing Authority, which also conducted an investigation.  Both investigations were done within 90 days.

A Notice of Claim was served 14 months later.  The court found that the undisputed fact that the Department of Health and the Housing Authority both learned of the lead exposure and conducted investigation refuted any argument that the defendants were not aware of the potential claim, the essential facts or had suffered any prejudice because of the late notice.  The court also found that the infant’s age constituted a sufficient excuse for the late filing.


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

Greetings from Denver, Colorado, where I am presenting on “Dealing with Multi-Generational Jury Pools.”  Interesting dynamics at play with modern juries, as they certainly don’t look like this anymore:

It’s quick trip with a Chevy Chase style wave-by of the Rocky Mountains. Fingers crossed for no flight delays so I can make it home for my daughter’s 8th birthday. 

There is a complete summer shut on toxic tort news as there are no appellant decisions of any significance.  There is no shut down on claims, however, as we have been defending these claims in almost every courthouse in Upstate New York.

And now for this month’s dad joke:

Why did the dolphin cross the beach?
To get to the other tide!

Click here for additional information on multi-generational juries



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

Greeting Subscribers!
Its one of my favorite times of year, fantasy football draft season! I enjoy the camaraderie, the skill, the luck, smack talk, winning (obviously, it is why we play), and watching meaningless Monday Night Football games to everyone except the fantasy community. Good luck to those whose drafts has not yet started, and feel free to drop me a line with your sleepers, late-round value-picks, or any other questions.  
This month, I report on an interesting case involving a notice of claim under the General Municipal Law where the trial court overstepped its authority in granting sua sponte relief to the petitioner. I also report on a discovery case where plaintiff was precluded from offering any evidence of damages at trial for willful and contumacious conduct in failing to comply with discovery demands and court orders.
Until next time…

07/24/19          Matter of Velez v City of New York
Appellate Division, Second Department
Trial court should not have granted petitioner leave to amend his notice of claim under General Municipal Law § 50-e as to the facts and legal theories within 30 days of the filing of the note of issue in a subsequent action to recover for damages for personal injuries.
Plaintiff allegedly was injured while attempting to board a subway train operated by respondents. One month later and prior to serving a notice of claim, petitioner sought pre-suit discovery from defendant under CPLR § 3102(c) to “preserve and make available for inspection by a certain date any and all evidence currently in their possession and/or control” related to the subject accident.
The trial court granted the petition seeking a preservation order and sua sponte ordered that petitioner “shall have the right to amend his Notice of Claim as to the facts and legal theories within 30 days upon the filing of the note of issue in the action.
The Second Department reversed as the sua sponte relief granted a nearly unlimited prospective right to petitioner to amend a notice of claim that had not yet been served and thus it was dramatically different from the pre-action discovery that was the subject of the petition. The Court also agreed with respondents that they were prejudiced since the trial court set a permissive timeline for amending the notice of claim that potentially could be beyond the statute of limitations and after the completion of discovery.

07/31/19          Gafarova v Yale Realty, LLC
Appellate Division, Second Department
Defendants’ motion to preclude plaintiff from offering any evidence of damages granted where plaintiff repeatedly failed to comply with discovery demands and court-ordered discovery.
The trial court granted defendants’ motion pursuant to CPLR § 3126 to dismiss the complaint or preclude plaintiff from submitting evidence, based on plaintiff’s failure to provide discovery and appear for a medical examination, or alternatively, to compel plaintiff to provide discovery and appear for a medical examination. The trial court granted only that portion of defendants’ motion seeking to preclude plaintiff from offering any evidence of damages.
The Second Department affirmed, finding that plaintiff’s repeated failures to comply with defendants’ discovery demands and court-ordered discovery were willful and contumacious, and that the penalty of preclusion was warranted because plaintiff violated a court order to schedule and appear for a medical examination. The Court rejected plaintiff’s excuse that she was unable to comply with defendants’ notice of designation of physicians to perform a medical examination because the notice did not specify a date since she failed to provide any dates on which she would be available to come to New York.


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

On vacation! Check back next month for updates on elevator/escalator/animal liability cases! 


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


Read Past Editions of Premises Pointers




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