Premises Pointers - Volume III, No. 5


Premises Pointers
Watch your step!

Volume III, No. 5
Tuesday, October 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



We have exciting news.  Products Liability Pointers is coming soon.  We are excited to announce the development of a new Hurwitz & Fine newsletter that will be devoted entirely to products liability.  Let us know if you want to be added to the distribution list.  We expect to release our first edition in January 2020 and will provide more information in the coming months. 
And speaking of products liability--there was another huge verdict last week.  A Philadelphia jury hit Johnson & Johnson with an $8 billion verdict over its marketing of the anti-psychotic drug Risperdal, siding with a Maryland man who argued that the health care giant downplayed risks that the drug could lead to breast growth in boys.  Click here for more information.
Finally, Happy Halloween to you and yours!
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.

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] to subscribe.



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

This month’s cases highlight the many ways retail and restaurant owners face liability in the operation of their businesses ranging from the way beverages are prepared, slippery parking lots and dangerous drivers (who happen to be employees operating vehicles in the course of their employment).
09/19/19           Stegner v. Milfa International Corp.
Supreme Court, Suffolk County
Hot tea lawsuit against Dunkin Donuts not dismissed because defendant failed to prove the lid was properly affixed to the cup before handing it to the guest.

The 10-year-old infant plaintiff and her mother visited a local Dunkin Donuts where they ordered a large coffee, two donuts and a small tea.  Once they received their order, they it carried out to the car. The tea was for the 10-year-old, who did not touch the lid on cup or take a drink while she walked.  However, as she got into the car, the hot tea splashed up and hit her wrist.  The shock of the hot water hitting her skin caused her to jump resulting in all of the tea coming out of the cup and landing onto her lap and stomach. 

A Dunkin Donuts manager testified the shop uses a Bunn machine to heat the water for use in hot tea and that his investigation revealed that the tea served to plaintiff was prepared in the usual, basic fashion.  The Bunn hot water machine is set to produce water that is between 196 and 200 degrees. There is also a process for placing the lid on the top of the cup.  Employees are required to press down on it and “then check on the side by the finger on the top of the lid” meaning that the employee is to take a finger and in a circular motion move it around the entire lid to ensure that it is sealed.

In support of their motion, defendants submitted three videos of the subject incident, showing the transaction from three different angles, as reported by the defendants’ surveillance system. It was undisputed that the lid to the hot tea cup did not become ajar while plaintiffs were in the subject Dunkin Donuts store. Defendants also submitted an expert report and sworn affidavit of Daniel C. Cox, the president and owner of Coffee Enterprises, who opined that 200 degrees Fahrenheit is a reasonable temperature at which to prepare and serve hot tea. Plaintiffs did not raise an issue of fact with respect to the temperature of the hot tea served at the subject Dunkin Donuts either by way of any evidence that it was hotter than it should have been, or that it exceeded the reasonable and customary standards for hot tea, nor did plaintiffs come forward with evidence that the hot water dispensed from the subject Bunn machine was not fixed at the industry standard of between 190 and 200 degrees.  Thus, the evidence established that the temperature of the hot tea was not excessively hot or considered dangerous for its intended use.  

The court however did conclude that Defendant did not establish the lid was affixed properly to the hot tea cup. Plaintiffs' expert opined that had the lid been securely fastened to the hot tea cup, it would not have come off of the cup had the cup been completely inverted, dropped from a height of 30 inches, or squeezed with a force of fourteen pounds and that moreover, if the lid had not been properly secured to the cup then a force of less than 4 pounds would not only crush the cup but also would “completely dislodge the lid allowing the hot beverage to splash all over the immediate area.” As plaintiffs' expert opines, the “tight seal cannot occur unless the lid is properly placed on the cup lid. Any slight deviation of the application will render the seal ineffective.” Inasmuch as there is no testimony or evidence to dispute the infant plaintiff’s testimony as to how the hot tea splashed up and hit her right wrist, plaintiffs’ expert created a question of fact as to whether the lid was properly secured to the cup. The expert further opines that “although the store videos show the employee placing the lid on the cup, it does not provide enough detail to rule out the improper securing of the cup lid to the cup.”  I am guessing that the defense attorney in this case will be making a trip to a local Appellate Division sometime soon – we will keep you posted.

09/27/19           Govenettio v. Dolgencorp of New York, Inc.
Appellate Division, Fourth Department
Retail store defendant’s storm in progress proof fell short and plaintiff’s complaint was reinstated.

Plaintiff slipped and fell in the parking lot of a Dollar General store between 5:00-6:00 p.m.  The trial court granted the storm in progress motion on behalf of the defendants based in part on the expert affidavit of a meteorologist.  However, the expert merely opined that one-tenth of an inch of snow fell after 3:30 p.m. on the day in question, and then relied on winter weather advisories that predicted, among other things, snow and freezing rain between 3:00 p.m. and 11:00 p.m. in several counties, including the one where the store is located. In addition, defendants submitted the deposition testimony of plaintiff, who testified that snow and rain had been predicted that day, but during the time leading up to his fall, it was merely overcast. Furthermore, defendants submitted the deposition testimony of an assistant store manager, who testified that there were “a few” “different” “slippery spots” in the parking lot when she arrived for her shift at 2:00 p.m. on the day of plaintiff’s fall. 

None of this was deemed sufficient to establish a storm in progress.  In fact, the court concluded that defendants’ own submissions raising issues of fact as to whether the slippery condition preexisted the alleged storm.  The trial court was reversed and the complaint was reinstated against the defendants.  Practice Pointer:  Merely retaining a weather expert is not enough to carry the burden on summary judgment – the expert affidavit needs to put forward objective evidence proving the existence of the winter storm event such as doppler radar footage, actual snowfall amounts versus just predictions, an analysis of ice formation based on temperatures, etc.

10/9/19           Higashi v. M & R Scarsdale Restaurant
Appellate Division, Second Department
Restaurant responsible for actions of employee who struck the plaintiff while operating a vehicle in the parking lot of the restaurant during the course of his employment.

Plaintiff, a pedestrian, was struck by a vehicle operated by the defendant Anthony J. Larosa. At the time of the accident, the defendant driver was operating the vehicle during the course of his employment with the defendant M & R Scarsdale Restaurant, LLC.  The Supreme Court denied the plaintiffs’ motion for partial summary judgment on the issues of the defendants’ liability and dismissing the defendants’ affirmative defenses alleging that the injured plaintiff was comparatively negligent. 

On appeal, the appellate court noted that to be entitled to summary judgment on the issue of liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence.  Although a plaintiff is not required to establish his or her freedom from comparative negligence, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence.  The defendant driver testified that his vehicle struck the injured plaintiff as he was making a left turn from the parking lot, that he never saw the injured plaintiff before his vehicle struck her, and that when the collision occurred his vehicle was in the process of accelerating into the lot. He testified that, upon impact, he felt a “slight bump” at the front center of his vehicle. He stopped and exited his vehicle, and observed the injured plaintiff lying on the ground.  The court held that a driver is bound to see what is there to be seen with the proper use of his or her senses.  Here, the plaintiffs established the defendant driver never saw the injured plaintiff before striking her.  Therefore, plaintiff’s motion for partial summary judgment was granted and defendants’ affirmative defense of comparative negligence was dismissed. 


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

Sweatshirt weather, after a couple of false starts, has finally arrived.  Perhaps politically incorrect, but I think a 50°-60° F sunny fall day is ideal.  Not too cold, not too hot.  The fact that the Irish are winning is a bonus.  That several local, big box stores simultaneously installed their Halloween and Christmas sales displays is not.
Those looking for new music to pair with a crisp fall day would do well to check out North Mississippi Allstars’ Up and Rolling or the Menzingers’ Hello Exile.  Hard to believe the Allstars are going on their 3rd decade.  Without knowing much about them, I first saw them on their tour for their first record (2000’s Shake Hands With Shorty) and have been a fan ever since.  A chill mix of southern and hill country blues, rock and boogie.  There’s even a track with the indomitable Mavis Staples helping out on vocals.   Plus, Luther Dickinson is, for my money, one of the most talented guitarists of his generation.  Scary good.  I’ll have to decide whether to see the Allstars or another longtime favorite, Jesse Malin, on November 6thHello Exile offers up more of Philly rockers the Menzingers solid punk/bar rock - another set of respectable songs about everyday life, with enough wit thrown in to keep things from getting too serious. 
Three cases this month – the first dealing with the moving municipal entity’s prima facie burden in a prior written notice case, followed by a pair of late notice of claim cases, both of which show the court’s expectation counsel explain delays in filing a notice of claim.
I welcome any comments, questions or suggestions on any legal and musical topics send them along.

September 18, 2019               Kabia V. Town of Yorktown, et al.
Appellate Division, Second Department
Allegations contained in plaintiff’s pleadings will determine the burden of proof required of a municipality or other governmental entity moving for summary judgment on a lack of the required prior written notice,
Claimed she fell on ice while walking on the track at a recreational facility owned by the defendant. There was a pile of snow adjacent to the portion of the track where plaintiff fell.
The defendant Town of Yorktown moved for summary judgment, submitting proof that they had not received the required prior written notice regarding the icy condition.  Prior written notice requirements do not apply when the municipal or governmental entity “creates the defective condition through an affirmative act of negligence.”  Plaintiff, in opposing the Town’s motion, argued that the Town had not met its prima facie burden because it had only submitted proof on the question of whether it had received prior written notice, and had not submitted any proof to establish that it had not affirmatively created or caused the icy condition.
In overturning the trial court’s grant of summary judgment to the Town, Appellate Division, Second Department held that the burden a defendant moving for summary judgment in a prior written case must satisfy is dictated by the content of the plaintiff’s pleadings.  Here, plaintiff’s notice of claim, complaint and verified bill of particulars all contained a clear claim that the Town had created the icy conditions by allowing melting snow and ice to flow onto the track area when she fell.  Because of those allegations, the defendant bore the burden of establishing that it had not created the icy condition.  The failure to do so in this case meant the defendant’s motion was denied.
September 25, 2019               Perez v. City of New York, et al.
Appellate Division, Second Department
1.  The essential facts and circumstances underlying a claim include when the accident occurred, the claimed injuries and the theory of liability – knowledge of a defect alone is not sufficient.
Difficulty in identifying the appropriate defendant can only serve as a reasonable excuse for a late filing when the claimant can show a duly diligent effort to find that information
Plaintiff claimed she fell because of defects on an asphalt pathway on Staten Island.  Shortly before the one year and 90 day time period was to expire, plaintiff filed an application to serve a late notice of claim.  Attached to the application were two undated photographs showing the alleged defect.  In the application, her attorneys argued that the delay in filing was excusable because of difficulties in identifying the proper owner of the property. 
The three major factors to consider when reviewing an application to serve a late notice of claim are whether (1) the defendant obtained actual knowledge of the facts underlying the claim within 90 days (or a reasonable time thereafter), (2) the claimant has a reasonable excuse for the delay in filing and (3) the defendant would be “substantially prejudiced” in mounting a defense on the merits.
On the first point, the court held that while the photographs might establish the City had knowledge of the defect, that did not establish the City had notice of the essential elements of the claim – that required that the City have notice of the accident itself, the claimant’s injuries and her theory of liability.
Addressing whether the claimant put forth a reasonable excuse for the delay in filing, the court noted that a lack of due diligence in attempting to identify a proper party is not a reasonable excuse for a delay in filing.  The court then criticized claimant’s counsel for failing to show that there had been any effort to identify the owner of the property.  The court also offered a conclusory statement that the claimant failed to show the City would not be prejudiced by the delay.
September 27, 2019               Diaz v. Rochester-Genesee Regional Transp. Authority, et al.
Appellate Division, Fourth Department
Where the application to serve a late notice of claim was filed 180 days after the accident but counsel had been retained before the 90 days after the accident ran, the failure to explain the delay in filing was fatal.
Claimant was allegedly injured when the garbage truck she was working on was struck by a transit authority bus.  Shortly after the accident, an authority employee came to the accident site and spoke with plaintiff, who said she had not been injured.  83 days later, claimant retained counsel to pursue an injury claim against the transit authority.  Although counsel was retained before the 90 days following the incident expired, a timely notice of claim was not filed.  180 days after the accident, claimant filed her application to serve a late notice of claim. 
Noting that it was undisputed that the transit authority was not aware of the elements of the claim within the initial 90 days, the court held that counsel’s unexplained failure to timely file a notice of claim until three months after the time ran, despite being retained before the 90 day time period expired was inexcusable.  The court also held that there was no proof that the defendant had suffered undue prejudice, the trial court was within its discretion to deny the application.


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

Exciting times here at Hurwitz & Fine as we are in the production phase of a Products Liability focused newsletter, where this column will be moving.  Shoot us a note if you are interested in this publication or have any thoughts or ideas on content you would like to see.

We are also in the Halloween production phase at the Potenza household, and it looks like we are coming in under budget.  My daughter is going as a black cat, and my sons are dressing as a lion and a firefighter, all simple costumes and we have most of the components on hand.  To top it off, we were invited to fancy adult Haunted Mansion Halloween party, and my wife is up-cycling my daughter’s cat costume.  I just need to find a mumu dress and hair curlers to accompany her as a crazy cat lady.

There are no interesting decisions in asbestos, lead paint, or other toxics torts, so I would like to take this opportunity to remind everyone about an important aspect of lead paint litigation that often becomes a sticking point at mediation: Joint and Several Liability.

And now for this month’s dad joke:

What did the horse dress as for Halloween?
A Night Mare!
New York appellate courts have found that the injuries caused by exposure to lead paint are not capable of being apportioned.  See, LaFountaine v. Franzese, 282 AD2d 935 (3rd Dep’t 2001) and Tejeda v. 116 West Corp., 293 AD2d 261 (1st Dep’t 2002).  The courts who considered the issue found the plaintiff’s experts opined that the infant’s injuries were based upon a totality of the lead exposure and that present science is not capable of linking a specific injury to a specific exposure.  One court wrote “there is no evidence to support a non-speculative apportionment on this basis.”  The default rule of law in New York in such a situation is that “injuries not capable of reasonable or practicable division are not required to be apportioned and, as a result, may be attributable in such circumstances to all defendants.”  In other words, the traditional rule regarding joint and several liability applies to lead paint claims.  In many, if not most, lead exposure claims, there are lead exposures over multiple properties, and often multiple properties are either un-insured or the coverage is subject to a lead paint exclusion.  The practical impact of this is that even though an insured owner may have the lowest level of lead paint exposure (either in length of tenancy or elevated blood lead levels), that defendant could end up paying full freight on the claim if there is no coverage for the more culpable property owners.  If the case were to go to trial, and plaintiff obtained a verdict with even the slightest apportionment against the insured property, plaintiff would be entitled to collect on the entirety of that judgment against the insured property (up to its policy limits), leaving that insurer to attempt to recover contribution from the uninsured co-defendants, and recovery against uninsured residential property owners is typically a losing proposition.


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

Dear Readers,
For those of you who don’t know, the McCarthy family welcomed Josephine Etti Bates McCarthy (or the Hon. Josephine E.B. McCarthy, as we have been calling her) into the world almost eight weeks ago! Her current likes include long walks in her stroller, bottles, and frequent costume changes.  Most recently, she has started cooing, smiling, and making a strange belly-based noise that we are CERTAIN is a prelude to a giggle.
Fresh off maternity leave, I have returned to an absolute whirlwind of activity—gone are the days of all-day-baby-cuddling and eating-probably-too-many-Mega-Stuff-Oreos-while-holding-said-baby.  As many of you are sure to have noticed, we are living in a fast and furious world of legislative change in the State of New York.  This column has, for some time now, addressed “timely topics” such as legislative enactments and amendments—we will continue to bring you updates about the changes to New York’s black letter law under this column’s new heading (don’t worry though, Snow and Ice will not go away)!

Signed into Law August 30, 2019  
An act to amend the civil practice law and rules, in relation to the admissibility of images, maps, locations, distances, calculations, or other information for a web mapping service.
Introducing that age-old Google Maps print-out into evidence at trial just got a little easier.  Before Governor Cuomo signed the most recent amendment to Rule 4511 of the CPLR into effect, a plaintiff or defendant who wished to use information or images from a service like Google Maps at trial had to first establish a foundation for the material. This required the moving party to establish the validity of the application (i.e.) Google maps as well as the chain of custody. 
The new amendment to the CPLR now classifies information taken from web mapping services/global satellite imaging sites, and/or internet mapping tools as admissible so long as the “information indicates the date it was created and subject to a challenge that it does not fairly accurately portray that which it is being offered to prove.” If not challenged by an opponent, the court “shall” take judicial notice and admit the information into evidence.
A party who wishes to use a Google Maps image or some other information taken from an internet mapping service must, at least 30 days before the trial or hearing, provide notice of such intent by producing a copy of the materials to be used or by specifying the internet address at which such information may be inspected.  Opponents who receive such notice must object no later than 10 days before the trial or hearing, stating the grounds for such objection.  Unless an objection is timely made, “the Court shall take judicial notice of the materials submitted and admit into evidence such image, map, location, distance, calculation or other information.”

Signed into Law August 6, 2019
An act to amend the navigation law, in relation to enacting Brianna’s Law

This Act amends the State Navigation Law by requiring all persons applying for a boating license, regardless of age, to take an approved boating safety course. Previously, New York only required applicants born after May 1, 1996 to participate in safety training as a pre-requisite to a boating license. In its Legislative Findings, the Legislature stated that the majority of boat owners are middle-aged and therefore were exempt for the safety training requirement as previously written.

This law is named for Brianna Lieneck, an 11-year-old girl killed in a boating collision off the cost of Long Island.

Signed into Law August 8, 2019
Creates the crime of staging a motor vehicle accident.
Right now, you’re probably scratching your head and thinking “wait, that wasn’t already a crime?!”  The short answer is, no.
The new law, a Class E felony (punishable by up to four years in jail), states that a person is guilty of staging a motor vehicle accident in the second degree “when, with intent to commit and in furtherance of a fraudulent insurance act, he or she operates a motor vehicle and intentionally causes a collision involving a motor vehicle.”
Similarly, a person is guilty of staging a motor vehicle accident in the first degree (a Class D felony, punishable by up to 7 years in jail) “when he or she commits the offense of staging a motor vehicle accident in the second degree and thereby causes serious physical injury or death to another person, other than a participant in the offense.”
Signed August 13, 2019
Relates to child abuse in an educational setting.
School bus drivers, whether employed by a school district or an independent contracting company, are now mandatory reporters.  Specifically, a school bus driver is now required to contact his or her supervisor after receiving any oral or written allegation that a child has been abused by an employee or volunteer in the educational setting.  The driver’s supervisor is then required to prompt complete a written report of the allegation(s), including the full name of the child, the name of the child’s parent or guardian, the identity of the person making the allegation and their relationship to the child, the name of the employee or volunteer against whom the allegation was made, and a list of the specific allegations of abuse.  The supervisor is then required to personally deliver the report to the District Superintendent or school administrator.

Moreover, all persons employed by a school (other than a school district or public school) in titles equivalent to teacher or administrator and any school bus driver employed by a school or independent contractor providing transportation services for children, “shall be required to complete two hours of coursework or training regarding the identification and reporting of child abuse and maltreatment.”  Such coursework must include information about the physical and behavior signs of child abuse and maltreatment as well as the legal reporting requirements set forth in the Social Services Law (i.e. when a report must be made, what other actions a reporter must take, the legal protections for reporters, and the consequences of failing to report).
Finally, a person employed by a school will be deemed to have complied with his or her reporting obligations where he or she reports an incident of child abuse in the educational setting to the Vulnerable Persons’ Central Register OR the Statewide Central Register of Child Abuse and Maltreatment


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

Greetings Subscribers!
Fall is a great time of year for sports fans and is even better for those (like me) cheering on the Yankees as they are still in the World Series hunt. Hopefully, the Bills will not make the same mistake as the Cowboys (boo) against the New York Jets this week, but as a -17 favorite, I am nervous. Keep working the waiver wire for your fantasy teams, fight until the very end, and feel free to reach out for any tips should you so desire!
The theme of this month’s cases is that if you file a motion to strike and/or preclude for failing to comply with discovery, document your file, know that demands that are palpably improper do not require any response, it is highly unlikely your case will be dismissed unless you can establish willful and contumacious behavior. If you want to know what qualifies as “willful and contumacious” conduct, just send me an email and we can have a laugh together.
See you next month.

09/18/19          Kiernan v Booth Mem. Med. Ctr.
Appellate Division, Second Department
Plaintiff not entitled to the striking of answer or precluding evidence for defendant’s failure to comply with court-ordered absent showing that defendant engaged in willful and contumacious noncompliance with respect to its discovery responses.
Plaintiff’s decedent was admitted to defendant nursing home and then transferred to a hospital. Plaintiff claimed the nursing home was negligent in its care, which resulted in injuries to decedent, and served discovery demands requesting the names, last known addresses, and color photographs of all personnel who worked on the floor where decedent resided on the days of treatment. After the nursing home objected to the demands on the grounds that it was overbroad and unduly burdensome, the trial court granted plaintiff’s motion to compel to the extent of directing it to provide identifying information regarding certain employees highlighted in decedents’ medical records.
Although the nursing home complied with the trial court’s directive, plaintiff moved under CPLR § 3126 to preclude it from producing evidence at trial and to strike its answer for its alleged willful failure to comply with their discovery demands. The trial court denied plaintiff’s second discovery motion and the Second Department affirmed, finding the nursing home timely complied with the court-ordered discovery and adequately explained that it previously disclosed the information sought.

09/18/19          Kiernan v Booth Mem. Med. Ctr.
Appellate Division, Second Department
Plaintiff not entitled to the production of additional discovery where the demands are overbroad and unduly burdensome, and, thus, are palpably improper.
The trial court denied plaintiffs’ motion to compel to the extent it sought color photographs of the nursing home’s personnel and insofar as it sought the production of additional information and color photographs of certain employees, reasoning that proper disclosure had already been completed.
The Second Department initially noted that the nursing home’s failure to object to plaintiff’s discovery demands with the time period set forth under CPLR § 3122(a)(1) does not foreclose review of its challenge to that demand on the basis that the demand was palpably improper. Here, the Court deemed plaintiffs’ request for additional information and color photographs of nursing home personnel who worked on the floor where decedent resided was palpably improper because it was overbroad and unduly burdensome.

09/25/19          Lopez v Bell Sports, Inc.
Appellate Division, Second Department
Plaintiff not entitled to striking of defendant’s answer or deeming the relevant issue resolved where she failed to demonstrate defendant’s failure to comply with discovery demands was willful and contumacious.
Plaintiff allegedly was injured when her bicycle struck a defective condition. Plaintiff submitted a FOIL request to the Town, seeking all permits, complaints, contracts, or other documents concerning the intersection where her accident occurred. Plaintiff commenced proceedings for pre-action disclosure of those items and the Town responded that it does not possess any responsive documents.
In the subsequent lawsuit against the Town, plaintiff served similar discovery demands. At the deposition of the Town’s representative, he testified that one year after plaintiff’s accident, he conducted a field inspection of the site, and at a later date, using a metal detector, was able to detect a water main beneath the road’s surface which he believe the installation of which was the responsibility of the County’s Water Authority.
The trial court denied plaintiff’s CPLR § 3126's motion to strike the Town’s answer or deem that it had created or had prior written notice of the defect involved in the accident, arguing the Town failed to timely identify the entity that conducted the construction work at that site. The Second Department affirmed, finding plaintiff failed to demonstrate that the Town did not timely turn over materials that were in its possession and responsive to plaintiff’s discovery requests, or that it responses were otherwise inadequate.

10/09/19          Ferreira v Singh
Appellate Division, Second Department
Plaintiff not entitled to striking of defendant’s answer or deeming the relevant issue resolved where she failed to demonstrate defendant’s failure to comply with discovery demands was willful and contumacious.
Plaintiff allegedly tripped and fell over a defect in a sidewalk abutting premises owned by NYCHA. NYCHA moved for summary judgment dismissing the complaint as plaintiff could not identify the cause of her fall and because of plaintiff’s alleged willful and contumacious failure to provide discovery. The trial court granted the motion for summary judgment and declined to address that portion of NYCHA’s motion under CPLR § 3126. The Second Department reversed, finding NYCHA failed to establish that plaintiff could not identify her fall but ordered that the trial court must now determine that branch of NYCHA’s motion seeking dismissal of the complaint based on plaintiff’s alleged failure to provide certain discovery.


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

Dear Readers,
It’s officially fall and the weather is just what you’d expect for WNY – nice and temperate during the day down to pretty cold at night. It is the time of year that I take the air conditioners out of the windows and am immediately tempted to turn my heat on. However, we have held off thus far. Usually I try to make it until the end of October to turn the heat on, but with the house at a solid 60Fº it is a bit chilly for mine and my cats’ liking. I think last year I caved right around this time, so maybe I’ll make it a few days more this year!
It was a quiet month for the courts, at least from my perspective when it comes to elevator, escalator, or animal liability cases. I only have one short elevator case for you from the First Department. The case discusses the different standards for summary judgment as it applies to an elevator servicing company compared to a building owner.
Until next time,

09/17/19          Saunders v. J.P.Z. Realty, LLC
Appellate Division, First Department
Summary judgment granted to elevator service company based on duty; denied to building owner based on insufficient evidence.
The plaintiff was allegedly injured when the interior vertical rise gate of a manually operated freight elevator fell on his head due to a broken chain or master link. Plaintiff worked for a moving company and presumably was using the elevator to move items. He sued the building owner where the elevator was located, as well as the elevator servicing company. The servicing company was retained by the building owner to inspect and repair the freight elevator.
The Court found that the elevator service company owed no duty of care to the plaintiff. Since the service company did not have a written contract with the building owner, or plaintiff’s employer for that matter, and there was no proof otherwise that the servicing company undertook such a comprehensive and exclusive maintenance obligation that entirely displaced the building owner’s maintenance duties, the case was dismissed against them.
The building owner also attempted to get summary judgment, likely on the grounds that the had no notice of the alleged defective condition (the broken chain or master link). The Court found here that building owner did not meet its burden to show entitlement to judgment as a matter of law because they did not tender sufficient evidence of an absence of factual issues. The only evidence that the building owner submitted was the deposition testimony and affidavit of the co-president of the building. However, this person did not know whether the building had an agreement with the elevator service company to make repairs to the elevator, did not know how the servicing company was paid, and was not aware whether the interior gate at issue was ever inspected. Because the witness did not have any personal knowledge of the facts required to support the building owner’s summary judgment motion, the Court decided that the affidavit was conclusory and thus denied the building owner’s motion.


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
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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

Additional Offices
Albany | 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.
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1300 Liberty Building, Buffalo, NY  14202


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