Premises Pointers - Volume III, No. 6


Premises Pointers
Watch your step!

Volume III, No. 6
Monday, November 18, 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



As you know, from time to time, I like to mention verdicts that catch my eye and one certainly did on Friday due to an accounting error by the judge to the tune of $107 million dollars.  The Oklahoma judge who ordered Johnson & Johnson to pay $572 million to help address the state’s opioid crisis reduced that amount in his final order in the case by $107 million because of his miscalculation.  District Judge Thad Balkman’s latest order directs the company to pay the state $465 million.  He acknowledged that he miscalculated in his original award how much it would cost to develop a program for treating babies born dependent on opioids. He said the cost should have been $107,000 not $107 million.  Click here for entire story.

Don’t forget 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. 
As always, please feel free to share this newsletter with friends and colleagues.  The entire Premises Pointers team loves hearing from people so keep the questions and comments coming.  Last but not least, onto another holiday.  Happy Thanksgiving!

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] or V. Christopher Potenza at [email protected] to subscribe.



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

This month’s column provides a refresher course on removal to Federal Court, which is often sought by defendants in the retail and hospitality industries.  The practice pointer is to make sure the amount in controversy (the demand) is explicitly stated in writing in order to avoid remand back to State Court.
10/18/19        Johnson v. Home Dept U.S.A.
United States District Court, Eastern District of New York
Removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages - an oral demand is not sufficient and if relied upon, will subject the case to remand.

Framework for removal: Pursuant to § 1446(b), a notice of removal must be filed within 30 days after receipt by the defendant of an initial pleading or “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” The Second Circuit has established a “bright line rule” that the 30-day “removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought.”  New York civil practice provides a method for obtaining the necessary document.   A defendant can request a supplemental demand setting forth the total damages claimed and plaintiff is required to comply within fifteen (15) days of the request – see CPLR § 3107(c).
Facts here:  Defendant moved to compel Plaintiff to respond to the Damages Demand.  The Court ordered Plaintiff to respond.  On June 10, 2019, Plaintiff filed his response, indicating that he claims $150,000 in pain and suffering.  Defendant removed the action two days later.  Plaintiff moved to remand the matter to state court arguing that he “made a formal demand for settlement of $150,000 no later than October 5, 2018 and defendant failed to remove within 30 days.  Plaintiff’s counsel claimed he “personally conveyed” a demand to Defendant “no later than October 5, 2018.”  Plaintiff did not suggest or establish that the settlement demand was made in writing. The law is clear that “an oral demand is not a pleading or other paper that meets the requisites of 28 U.S.C. § 1446(b)Had Defendant removed the case based solely on an oral demand, it would have been subject to remand as premature.

10/18/19                Anderson v. Keystone Freignt Corp.
United States District Court, Eastern District of New York
Lawsuit removed to Federal Court remanded sua sponte by Court because amount in controversy was NOT established with an explicit written demand

The removing party has the burden of establishing that the amount in controversy exceeds the $75,000 jurisdictional threshold mandated by 28 U.S.C. § 1332(a).  The Second Circuit has cautioned district courts to “construe the removal statute narrowly, resolving any doubts against removability.  In this case, the Defendants failed to meet their burden.  Defendants' reliance on Plaintiff’s complaint, which did not allege a damages amount, was insufficient to establish the amount in controversy requirement.  Plaintiff’s general allegations that she “was severely injured, bruised and wounded, suffered, still suffers and will continue to suffer for some time physical pain and bodily injuries and became sick, sore, lame and disabled and so remained for a considerable length of time”; that she “was compelled to and did necessarily require medical aid and attention, and did necessarily pay and become liable therefore for medicines”; that she “has been unable to attend to her usual occupation in the manner required”; and that she “sustained serious injuries as defined in Section 5102 of the Insurance Law, and has sustained economic loss greater than basic economic loss as defined in the Insurance Law were not enough to support the notice or removal.

11/12/19           Hamilton v. National Amusements, Inc.
Appellate Division, First Department
Through its surveillance footage, Defendant movie theater established it lacked notice of oily substance on escalator steps. Practice pointer:  save the video!

Defendant established its entitlement to summary judgment in this action where plaintiff was injured when she slipped and fell as she walked up the escalator in defendant's movie theater. Defendant submitted plaintiff's deposition testimony, in which she stated that she did not see the alleged oily condition on the escalator steps before she fell. Only after the accident, when plaintiff detected what she believed to be an oily substance on her pants and shoe, did plaintiff surmise that she had slipped on oil. Defendant's managers averred that they saw no oily or other foreign substances on the escalator steps on the date in question, and received no reports or complaints about the escalator on that date.  Defendant also submitted surveillance video footage showing that numerous persons rode the escalator without any problem for 40 minutes before and about 50 minutes after plaintiff's fall. Accordingly, defendant showed that it did not have actual or constructive notice of the condition that allegedly caused plaintiff’s fall.

11/15/19           Hernandez v. Denny’s Corporation
Appellate Division, Fourth Department
Arrest at Denny’s restaurant resulted in lawsuit filed against Denny’s and security guards involved in arrest.

Plaintiff was arrested by security guards at a Denny’s restaurant.  Following discovery, multiple summary judgment motions were filed.  Plaintiff moved for summary judgment on his malicious prosecution claim [elements: a criminal proceeding was commenced, it was terminated in favor of accused, it lacked probable cause and proceeding brought due to actual malice], which was denied.  The evidence showed that prior to his arrest, plaintiff was swearing, belligerent, hostile and would not leave when directed. Thus, plaintiff’s motion was properly denied based on the existence of probable cause.  Plaintiff also moved on his claims for false arrest and assault and battery.  Since the court found there was a question of fact regarding probable cause, summary  judgment on the false arrest claim was improper.  With regard to the assault and battery claim, the reasonableness of a particular use of force takes many factors into account and it is for the jury to determine if the force was reasonable.  Lastly, the court ruled the trial court erred in denying defendant's cross-motion seeking summary judgment dismissing plaintiff’s causes of action for negligent hiring, retention, supervision and training.


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

Greetings.  I flew in an out of Boston’s Logan airport yesterday and the absurd holiday “display” in the building housing the rental car counters made my cold, cynical heart race a bit.  The space is huge, I would guess at least 300 feet long, with 75-100 feet from between the front entrance wall to the counters and open to the roof 3-4 stories above.  (Just how many people do they expect to line up at any one time?).  Hanging about 25 feet above the front door was a large and obviously artificial holiday wreath, adorned with blue and silver ribbons and decorations.  To each side of the door, two forlorn, artificial Christmas trees in the same color scheme. No fake presents underneath, just a scrap of white felt.  And that was it for the entire space.  Just a wreath you wouldn’t see unless you were some distance back from the door and two lonely, lifeless trees standing sentinel over a section of cold tile floor.

Musically, I haven’t come across any new releases that I found particularly intriguing.  Next week will bring a treat – the Jayhawks, a band typically tossed into the alt country/Americana hopper, are making their first Buffalo appearance in years.  Great songwriting and gorgeous vocal harmonies.  The Jayhawks' first record was released in 1986; their latest in 2018.  My favorites, and great starting off points for those new to the band are 1992’s Hollywood Town Hall and 2003’s Rainy Day Music

This month brings a series of cases dealing with applications to serve a late notice of claim against a municipal defendant, with a couple of points not normally found in the run of mill late notice of claim cases.
Best wishes for a happy thanksgiving.


October 23, 2019       Kmiotek v. Sachem Central School District, et al.
Appellate Division, Second Department
Denial of a proposed late notice of claim is appropriate where the underlying claim is “patently meritless”.

This case arose from a tragic accident that occurred during a high school football practice.  5 players were engaged in a strength and conditioning drill that required them to carry a heavy log above their heads.  During the drill, the players were unable to control the log, resulting in one player sustaining a fatal head injury. 

Approximately ten months after the accident, three of the players involved in the drill filed an application to file a late notice of claim.  Since the three proposed claimants had not suffered any physical injury, the proposed notice of claim sought only damages for the intentional and negligent infliction of emotional distress.  The petitioners also alleged the districts’ failure to continue the mental health care and counseling services it had provided in the aftermath of the accident contributed to their injuries. 

The application was denied.  While the merit of the underlying claim is not “ordinarily” considered, denial of an application to serve a late notice of claim is appropriate where the underlying claim is “patently meritless.”  New York allows a person not physically injured to recover for emotional distress only when that person is (1) threatened with injury as a result of the defendant’s conduct (i.e. within the “zone of danger”) and (2) witnessed the death or serious physical injury of an immediate family member.   In this case, the three proposed claimants were not related in any way to the decedent and therefore had no basis for seeking recovery.

October 30, 2019       Nunez v. Village of Rockville Center, et al.
Second Department
Ignorance of the law and fear of retaliation are not reasonable excuses for failing to timely file a notice of claim.

Claimant Nunez was arrested and charged with second degree assault for allegedly hitting, with his motorcycle, the Village police officer who stopped him for a number of traffic violations.  Then charges were ultimately dismissed, followed by Nunez seeking permission to file a late notice of claim alleging both a violation of his federal constitutional rights (pursuant to 28 USC §1983) and a host of state law claims - malicious prosecution, false arrest, excessive force, etc.  He argued the reports from his arrest provided actual notice to the respondent of the material facts underlying his claim and that his ignorance of the law (he claimed his attorney on the criminal charges never told him about the notice of claim requirements, which he learned for the first time when he retained civil counsel) and fear that filing the notice while the criminal charges were pending would negatively impact the resolution of those charges.
The court held:

  1. Notice of claim requirements do not apply to claims made under §1983;
  2. A malicious prosecution claim accrues when the charges are dismissed, and not on the date of the arrest, making that part of the notice of claim timely;
  3. As it had stated in its 1984 decision Casselli v. City of New York, for “a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation.
  4. Ignorance of the law did not serve as a reasonable excuse, and
  5. Neither “[u]nsubstantiated claims of fear and intimidation” nor ignorance of the lawconstituted a reasonable excuse for a delay in filing.

November 6, 2019     Molme v. City of New York
Second Department
Whether a proposed defendant had the opportunity to conduct a timely physical exam of the petitioner is a factor in determining if the proposed defendant will be unduly prejudiced by the late filing of a notice of claim.

Claimant sought to file a late notice of claim for injuries allegedly sustained in a collision between her car and a New York City Transit Authority bus.  Petitioner’s argument that the police and incident reports filed for accident provide notice to the City was rejected. For police or incident reports to serve as timely notice regarding the underlying claim, the report must provide “actual notice of the facts constituting the petitioner’s claim that she sustained serious injuries as a result of the NYCTA’s actual negligence.”  A report documenting that the accident happened isn’t enough - the report(s) must show that the putative defendant engaged in wrongful conduct that caused an injury. 

Not only does General Municipal Law §50-h permits the respondent to take the claimant’ testimony (the ubiquitous 50-h hearing) but allows for a “physical examination of the claimant by a duly qualified physician.”  Without getting into any detail, the court stated that the delay had unduly prejudiced the respondent because it precluded their ability to “promptly” conduct such an exam - presumably the passage of time precluded the assessment of some element of the claimed injury.
October 29, 2019       Montero v. City of New York
First Department
A triple threat: (1) Ignorance of the notice of claim requirements in not an acceptable excuse for a late filing.  (2) Neither is one’s medical condition absent proof on the record supporting that claim.  And finally, (3) the respondent cannot rely on a “bare” claim that it will be unduly prejudiced if the late filing is allowed.

Claimant tripped and fell in a hole at a soccer field located in a City park.  The decision doesn’t indicate when, but sometime after the 90 day period for filing a later notice of claim expired, plaintiff filed to serve a late notice and offered as his “reasonable excuse” for failing to timely file both his ignorance of the filing requirement and that his injuries had prevented him from filing.  Case law is settled that ignorance of the law is no excuse.  Medical capacity can serve as an excuse for a late filing, provided the petitioner provides medical documentation (i.e. records, a physician’s affidavit, etc.) to support the claim.

Because the proof showed the City had actual notice of the claim within the 90 day filing period, the lack of an excuse was not fatal.  Addressing prejudice to the respondent, the court noted that although “petitioner does not address whether anyone saw the accident, the bare claim that the delay would make it difficult for the City to locate witnesses is insufficient to establish prejudice”. 

The message here?  Having (and showing) proof to back up a claim on a key issue is fundament to effective representation of your client.


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

I am very excited and proud to be partnering with Brian Mark of our downstate office in publishing Products Liability Pointers starting in January 2020.  Our team has been drafted, a logo is in production, and we are all busy studying and researching all the latest trends and hot topics in product liability.  To that end, there was an important national decision from the U.S. Supreme Court permitting the families of the Sandy Hook tragedy to continue their litigation against the firearm manufacturer. 

In Remington Arms Co., LLC, et al., Petitioners v. Donna L. Soto, Administratrix of the Estate of Victoria L. Soto, et al., the United States Supreme Court denied Remington Arms’ petition to review the lawsuit filed by families of victims of the Sandy Hook school massacre seeking to hold Remington responsible for marketing a military-style weapon to civilians.  This denial leaves in place a ruling by the Connecticut Supreme Court permitting the lawsuit to proceed against the gun manufacturer for the Sandy Hook massacre. Of critical import, the Justices let stand the Connecticut ruling that a federal law protecting firearm manufacturers and dealers from liability for the “criminal or lawful misuse” of their products does not preempt the state’s consumer protection laws. The victims’ case will now, after years of appeals, return to the Connecticut Superior Court to proceed with discovery. Our very own Connecticut resident and true Nutmegger Lee Siegel has more details on that decision here.

In toxic tort news, there are just a couple of decisions this month, including a murky personal jurisdiction decision in an asbestos case from the First Department, and a reversal of an objectively odd summary judgment decision in a lead paint claim in the Fourth Department.

In late breaking news, on Friday afternoon, Lipsitz & Ponterio obtained an $8 million asbestos verdict in Monroe County (a traditionally conservative venue).  Details forthcoming….

Thanksgiving is approaching, which marks the beginning of all the hustle and bustle of the extended holiday season.  Holidays can be needlessly stressful, so I encourage everyone to just relax and enjoy the precious time we have with our friends and family. 

And now for this month’s Turkey Day dad joke:

Why didn’t the turkey eat on Thanksgiving?

It was stuffed!

10/15/19          Leavitt v. Rogers Corp.
Appellate Division, 1st Department
Plaintiff demonstrates a “sufficient start” in establishing personal jurisdiction over asbestos defendant to avoid dismissal.
Personal jurisdiction over out-of-state asbestos defendants is a hot but muddy issue and only got muddier with this brief decision from the First Department.  Although the record before the court was not sufficient to warrant a finding of personal jurisdiction over the defendant, plaintiffs made a “sufficient start” in demonstrating such jurisdiction, and accordingly, jurisdictional discovery is warranted with respect to this defendant.

10/04/19          Hannah v. Lanpher
Appellate Division, 4th Department
Plaintiff’s expert affidavit creates question of fact on alleged lead paint injury

The Fourth Department reversed what appeared to be a curious decision by the trial court to grant summary judgment to defendants in the face of plaintiff’s expert affidavit attesting to injury from lead paint exposure.  The Fourth Department agreed that the landlord defendants met their initial burden of proof by submitting plaintiff's own deposition testimony together with her medical and school records, which demonstrate an absence of cognitive deficits or mental health issues causally connected to lead exposure.  Plaintiff, however, raised triable issues of fact by submitting the report of an expert who diagnosed her with a major neurocognitive disorder due to lead toxicity and who concluded, based on scientific data and plaintiff's medical history, that plaintiff's cognitive deficits were most likely caused by childhood lead exposure.


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

Dear Readers,
Things have slowed down (slightly) in the New York State Legislature, so this month’s column brings news of a pending bill just introduced at the end of October.  It may be some time before we see it signed into law (and perhaps not even in its current form); nevertheless, it is a bill that has some interesting implications on the restaurant industry.  Also in this issue, we begin to see some rulings on issues arising under the Child Victims Act—recently, out of New York County, the Court engaged in a multifactor examination of a plaintiff’s right to litigate anonymously.

October 28, 2019        THE RIGHT TO REFILL, Senate Bill S. 6813
Introduced and referred to Committee.
The Right to Refill Act was introduced and referred to the N.Y. State Senate Rules committee on October 28th. The Act amends the public health law and prohibits “any food establishment that serves beverages or food in a single-use container” from “refusing a reusable beverage or food container supplied by the customer[.]” 
A “food establishment” is defined by the law as “a public place engaged in the preparation and service on the premises of food and open to the general public.”  A “reusable beverage container” is also expressly defined as “a bottle, mug, cup or other container that is designed and manufactured to hold beverages and is capable of multiple reuse.” Similarly, a “reusable food container” means “containers, bowls, plates, trays, cartons, cups, lids and other items that are designed and manufactured to hold food and capable of multiple reuse."  Receptacles made entirely of aluminum or polystyrene foam coolers and ice chests are expressly exempted from the definition of “disposable food service containers.”
Under the proposed law, employees of a food establishment may reject a container based on their own individual judgment that the receptacle is an improper size, dirty, or made of an improper material.  Employees are also obligated to dispense beverages “in a manner that prevents contact with or the contamination of beverage dispensing equipment” and/or package leftovers “in a manner that prevents contact with, or contamination of, the food-contact surfaces of the food serving equipment.”  
Food service establishments that serve beverages in single-use containers will be obligated to “conspicuously post” signs informing customers that “they are permitted to request the service of beverages in their own reusable containers.” Similarly, establishments serving food will be required to post signs stating that “the packaging of leftovers from partially consumed meals” may be done in the customer’s own reusable food containers.

November 14, 2019    ARK55 DOE v. Archdiocese of New York et al., ARK31 DOE v. Archdiocese of New York et al., ARK61 DOE v. Archdiocese of New York et al., ARK88 DOE v. Archdiocese of New York et al.
Supreme Court of New York, New York County
An analysis of a plaintiff’s right to litigate anonymously.
Plaintiffs in their respective Child Victims Act lawsuits moved the Court, by Order to Show Cause, for permission to proceed with their litigation anonymously.  Although the plaintiffs in each case were willing to share their identities with the defendants, they sought an Order from the Court requiring defendants to keep those identities confidential. One of the defendants argued that the request to keep plaintiff’s identity confidential constituted a due process violation.
Unsurprisingly, the Court granted plaintiffs’ application(s) in each action—what is unusual, however, is the lengthy analysis the Court conducted in arriving at its decision.  After a discussion of the statutory and common law justifications in allowing the victims of sexual assault to participate anonymously in legal proceedings, the Court walked through several factors that it found relevant in deciding to grant plaintiffs’ applications-(1) the claims were not raised against a municipal or governmental entity (“this case has not been brought against a government entity, a factor this court believes would militate in favor of the public’s right to know”) and (2) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature.” 
In applying the facts of each case, the Court held that, where a plaintiff is willing to privately disclose his or her identity to the adverse parties in an action (but does so confidentially), there is no violation of defendant’s due process rights.  Moreover, a grant of anonymity by the Court “impacts far less on the public’s right to open proceedings than does the actual closing of a courtroom or the sealing of records.”  Finally, quoting Aesop, the Court stated that the defendants do not enjoy the same entitlement to anonymity as that of a CVA plaintiff--“’the injuries we do and those we suffer are seldom weighted in the same scales.’ That principle applies here, where the legislature has codified specific protections for alleged victims of sexual assault that do not apply to alleged perpetrators of that abuse.”


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

Greetings Subscribers!
Winter arrived in Western New York earlier this week and that means Thanksgiving is rapidly approaching. It is one of my favorites holidays as it means a full day of family and football! It also means it's time to gear up my fantasy teams for the fantasy playoffs (except in that one league…) and I relish the opportunity to take advantage of the playoff schedules while my opponents are still worried about bye- week replacements.
This month, I report on two discovery cases. The Polakoff cases involves sketchy tactics that I thought were no longer used by attorneys as it almost always results in preclusion. Additionally, the Martin case provides a good reminder to all that if you disclose documents for the first time in support of your summary judgment motion, it is highly likely that your opponent will be allowed to conduct discovery on that new evidence. If you want to discuss strategy on producing or withholding various documents during discovery, or need help in preparing the privilege log, just send me an email and we can work through the issue together.
Until next month, Happy Thanksgiving.

10/29/19               Polakoff v NYS Hosps. Ctr.
Appellate Division, First Department
Plaintiffs’ surprise tactic in not complying with their discovery obligations under CPLR § 3101(i) to disclose video or audio tapes of defendants constituted willful and contumacious conduct such that plaintiffs were precluded from using the recordings at trial.
Plaintiffs failed to produce audio and video recordings of defendants until after their depositions and on the eve of the continuation of defendant’s deposition. The trial court granted defendants’ motion, pursuant to CPLR § 3126, to preclude plaintiffs’ use of the audio and video recordings at trial.
The First Department unanimously affirmed; finding plaintiffs’ conduct demonstrated willful and contumacious violation of the trial court’s discovery orders as well as plaintiffs’ duty of full disclosure under CPLR § 3101(i). The Court further held defendants were clearly prejudiced by plaintiffs’ conduct because it occurred 18 months after the preliminary conference order and after party depositions.
11/07/19          Martin v City of New York
Appellate Division, First Department
Plaintiff’s request for further discovery on documents the City submitted for the first time on its summary judgment motion granted under CPLR § 3212(f) as the City failed to comply with its discovery obligations to plaintiff.
Decedent was fatally injured after tripping and falling on a roadway defect in the Bronx. A scheduling order was entered into requiring the City to disclose, within 60 days, pertinent records for two years prior to and including the date of decedent’s accident. The City was again ordered to disclose these records in two subsequent conferences in 2013 and 2014. In support of their summary judgment motion, the City exchanged 200 pages of records regarding the location of the accident, and an affidavit from a DOT official who averred certain records they were ordered to search for were destroyed in Hurricane Sandy. In opposition, plaintiff argued that she should be permitted to conduct further discovery on the newly exchanged records, yet the trial court granted summary judgment to the City and Con Ed.
The First Department unanimously reversed and granted plaintiff’s request for further discovery; finding the City failed to comply with its discovery obligations and thus, denied the City’s motion, as premature, without prejudice to renew on the condition that, within 60 days, it produce a witness for a further deposition on the records and other discovery exchanged in support of its motion.
As to Con Ed, the Court denied its motion; finding its investigative report denying that it had created the defect, or was otherwise responsible for the defect, failed to establish its prima facie entitlement to judgment as a matter of law because Con Ed received a violation for a defect in the area where decedent’s accident occurred.


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

Dear Readers,
One month ago in this column I told you it was officially fall in WNY. Today I am here to tell you that it is officially winter here in WNY. Snow-on-the-ground, temperatures-in-the-teens, heat-on kind of winter already. Besides the change of weather, many exciting things have happened since our last issue: bar results are out – shout out to RPM and CJE here at H&F, plus my good friends Alex and Anna; trials have been won – shout out to co-columnist Anastasia; babies have been born – again, shout out to RPM (what a big month October was for him!); and good musicals and concerts have been seen – shout out to Come From Away (phenomenal musical, highly recommend) and Stevie and the Dynamites (H&F’s own SLM is the frontwoman). This weekend I am heading to my childhood best friend’s wedding in Rochester, NY, which should be a wonderful time to celebrate! Although there will be snow, it will at least make for pretty pictures.
Although the courts were quiet last month, they were pumping out decisions this month. I have four (4!) elevator cases for you, although one is more jurisdictionally focused, one escalator case, and one dog bite case. Two of the elevator cases deal with res ipsa loquitor, one finding that it may apply and the other finding it absolutely does not. One elevator case that deals with a foreign company as a defendant who succeeds in proving there is no personal jurisdiction over it. The other elevator case deals with property control and notice issues. Then we have the escalator case, which discusses notice. Finally, there is a dog bite case that reviews the notice a landlord must have to be liable for injuries from a tenant’s dog.  
Until next time,
10/16/19          Grandelli v. Hope St. Holdings, LLC
Appellate Division, Second Department
French brake manufacturer obtains dismissal on personal jurisdiction grounds in wrongful death action as a result of an elevator accident.
The plaintiffs, as administrators of the estate of Eran Modan, commenced a wrongful death action against Hope Street Holdings, the building owner, and Warner Electric, the elevator brake manufacturer after Mr. Modan died as a result of an elevator malfunction as he was attempting to exit an elevator. Warner Electric manufactured the brakes that were incorporated as component parts into the subject elevator’s A.C. drive – a device that controls the speed of the electrical motor in the elevator.
Warner Electric happens to be a French company. They moved pursuant to CPLR 3211(a)(8) for dismissal of the complaint and all cross claims against them for lack of personal jurisdiction. The lower court denied Warner Electric’s motion with leave to renew after discovery. The Second Department disagreed and found that there was no basis to allow discovery to continue since the opposing parties did not allege any facts which, if proven, would establish that Warner Electric may be subject to personal jurisdiction in NY.
Plaintiff argued that Warner Electric was subject to personal jurisdiction under the long-arm statute in NY (CPLR 302(a)(3)(ii)). In order to apply, the long-arm statute requires (1) that the defendant committed a tortious act outside the State; (2) that the cause of action arises from that act; (3) that the act caused injury to a person or property within the State; (4) that the defendant expected or should reasonably have expected the act to have consequences in the State; and (5) that the defendant derived substantial revenue from interstate or international commerce.
Warner Electric established that it did not expect, nor that it reasonably should have expected, its brake production to have consequences in NY. This element – contemplating in-State consequences – is met when the out-of-state tortfeasor expects, or has reason to expect, that his or her tortious activity outside NY will have direct consequences in NY and is intended to ensure some link between the alleged tortfeasor and NY to make it reasonable to require them to come to NY to answer for their conduct. Warner Europe established that it does not sell the elevator brakes it manufactures in France to any customers in NY or contract with any other company to distribute its elevator brakes to customers in NY. Instead, it sells its elevator brakes as component parts to other manufacturers which incorporate them into A.C. drives, which are then sold to other manufacturers that incorporate the A.C. drives containing the elevator brakes into elevator systems. Warner Europe also established that it has no knowledge of the end users of the elevator brakes, and that it does not sell replacement elevator brakes or component parts to the end-user customers who purchased the elevators into which they were incorporated. Warner Europe also established that its products were neither sold nor advertised online. Finally, Warner Europe showed that it has no real or personal property in NY, no registered agent or telephone number in NY, and no bank or investment account in NY, and that it does not advertise in NY. Thus, the record did support a finding that Warner Europe knew or reasonably should have known that its manufacture and sale of elevator brakes would have a direct consequence in NY such that long-arm jurisdiction could be exercised. Thus, Warner Electric was granted the dismissal.

10/24/19          Rivera v. 11 W. 42 Realty Investors, LLC
Appellate Division, First Department
Elevator operators denied summary judgment for failure to prove that they did not launch a force or instrument of harm.
This case involves four defendants – 11 West 42, Tishman, NTT, and Pritchard. It appears that 11 West 42 and Tishman are the building owner and property management company, respectively, while NTT and Pritchard were some sort of elevator operator. Plaintiff was somehow injured by counter tops that were placed in the elevator (it is unclear why plaintiff was in the elevator to begin with).
11 West 42 and Tishman were able to establish that they did not cause, create or have actual or constructive notice of the one-time unsafe condition in the elevator when plaintiff was injured. Although it was unclear from the record who put the counter tops in the elevator, there was no evidence in the record that it was either of these defendants as none of the witnesses testified that either defendant played any role in loading, unloading, or placing construction materials in the elevator, nor did anyone testify that they had any knowledge of complaints or accidents related to construction materials in the elevator. The plaintiff testified that the person who instructed the elevator operator to remove the materials from the elevator worked for the building, but the court determined this was merely speculative as it appeared to be solely based on the fact that the person was wearing a uniform. Therefore, the Court granted summary judgment for these defendants, dismissing the complaint against them.
By contrast, NTT and Pritchard failed to establish that they did not launch a force or instrument of harm in failing to exercise a reasonable care in performing their duties or that pursuant to contract they did not entirely displace 11 West 42 and Tishman’s duty to maintain the premises safely. The record showed that plaintiff was permitted to ride in the elevator by Pritchard’s employees when it was filled with unsecured construction material. NTT had a contract that gave them full responsibility for the operation of the elevators and a Pritchard employee testified that the elevator was not supposed to carry heavy loads between 8am and 6pm without permission of his supervisor, which he admitted to not obtaining. Another Pritchard employee, the relief operator, testified that people were not permitted to be in the elevator when its carrier construction equipment. Although some witnesses testified that 11 West 42 and Tishman imposed certain rules for the transport of heavy loads in the elevator, this was no more than a general supervisory control. As a result, the court denied NTT and Pritchard’s motions for summary judgment.

10/29/19          Carter v. New York City Hous. Auth.
Appellate Division, First Department
Issues of fact regarding notice of dangerous condition and plaintiff’s conduct in elevator preclude summary judgment.
Plaintiff was injured when the elevator door in the defendant’s building unexpectedly closed on her had as she attempted to exit. Defendant made a motion for summary judgment on the issue of res ipsa loquitor as well as notice and the court denied it. The court denied the motion because defendant’s failed to establish that res ipsa loquitor is inapplicable in this case. Res ipsa loquitor essentially means that the occurrence of this kind of accident necessarily means someone was negligent. In order for res ipsa loquitor to apply, three elements must be established: 1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of defendant; and 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Plaintiff’s claim for res ipsa loquitor is that she was injured while exiting an elevator and that the elevator malfunction was within the exclusive control of the defendant. The court found that there was a factual issue as to whether plaintiff’s actions may have affected the dangerous condition involved in the accident and whether the defendant had notice of the problem with the subject elevator since there was an affidavit that states complaints were made about the elevator door within a week of the accident. Because there were questions of fact, summary judgment was not appropriate.

11/07/19          Chambers v. Tilden Towers Housing Co. Section II, Inc.
Appellate Division, First Department
Defendants granted summary judgment by establishing they had no notice of elevators in building suddenly dropping.
Plaintiff was injured when an elevator in the building she lived in suddenly dropped five floors. Owner defendants established their entitlement to summary judgment as they showed that they had no notice of a problem with the elevators in the building suddenly dropping. Plaintiff failed to raise an issue of fact in opposition. She also attempted to rely on res ipsa loquitor to impute notice on the owner defendants, but it was misplaced here because the owner defendants did not have exclusive control of the elevators. Exclusive control of the instrumentality bringing about the injury is necessary for res ipsa loquitor to apply. Here, the owner defendants had ceded all responsibility of the maintenance and repair of the elevators to its elevator service contractor.

11/12/19          Hamilton v. National Amusements, Inc.
Appellate Division, First Department
Defendant did not have notice of any dangerous condition on escalator.
Plaintiff slipped and fell as she walked up the escalator in the defendant’s movie theater. During her deposition, plaintiff testified that after the accident she detected what appeared to be an oily substance on her pants and shoe and surmised that she slipped on oil, though she did not see the alleged oily condition on the escalator steps before she fell. Defendant’s managers asserted that they did not see any oily or other foreign substance on the escalator steps on the date in questions, nor did they received any complaints or reports about the escalator on the date of the accident. In addition, defendant submitted surveillance video footage showing that numerous people road the escalator without any problems for the 40 minutes before and about 50 minutes after the plaintiff’s fall. Thus, the defendant proved that it did not have actual or constructive notice of any condition that allegedly caused plaintiff’s fall and plaintiff failed to raise any issue of fact in opposition, therefore summary judgment to the defendant was granted.

11/12/19          Almodovar v. New York City Hous. Auth.
Appellate Division, First Department
Question of fact exists as to whether the property owner had notice of dog’s vicious propensities
Plaintiff alleges that, while returning to defendant’s building after walking her own dog, she was bit by a tenant’s unleashed pit bull. In order to hold a landlord responsible for injuries sustained in a dog bite accident, the plaintiff must prove that the landlord had knowledge of the dog’s presence and that the dog had vicious propensities, which may be established by proof of prior acts similar in nature that the landlord had notice of. Defendant moved for summary judgment regarding notice of the pit bull’s presence and vicious propensities. Defendant’s internal records however showed that a dog bite occurred at the same building three months prior to this attack. While the internal documents did not identify the dog or its owner involve din the prior attack, the plaintiff testified that she had seen the pit bull with the tenant on several prior occasions and that the dog acted “aggressively,” so there was a question of fact as to notice of the pit bull’s presence and vicious propensities.


Jody E. Briandi
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Todd C. Bushway
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V. Christopher Potenza
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Anastasia M. McCarthy
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Marc A. Schulz
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Marina A. Barci
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