Premises Pointers - Volume III, No. 7


Premises Pointers
Watch your step!

Volume III, No. 7
Monday, December 16, 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



From the entire Premises Pointers team, wishing everyone the happiest of holidays!  While the holiday season crept up on most of us, I think it’s safe to say we are all immersed in shopping, decorating and party hopping.  Speaking of which, we celebrated our Firm Holiday party at the newly restored Forbes Theater in downtown Buffalo last Thursday evening.  It was a lovely affair with plenty of holiday cheer for our entire staff and their significant others. 
With 2020 right around the corner, we have some exciting announcements at H&F.
First, this will be Marina Barci’s last column for Premises Pointers as she is moving over to Products Liability Pointers.  Our loss will be their gain, so look for Marina’s new column next  month in the inaugural issue of our newest addition to the “Pointers” family of newsletters.  And in January, we will have two new contributors joining our publication – Robert Hewitt from our downstate Melville office and Brian Webb who works in Buffalo.  More to come about Rob and Brian next month, but we are excited to have them on board!    

Hurwitz & Fine is also excited to announce the addition of 3 attorneys who will be joining us on January 2.  Diane Bucci is joining our Insurance Coverage Department and will be working on complex and sophisticated coverage matters.  Diane, who is admitted in both Connecticut and New York, is a wonderful addition to our downstate team of lawyers.  And joining our litigation department are attorneys Timothy Welch and Brenna Gubala.  Both Tim and Brenna come to us with significant experience in the areas of New York Labor Law, Premises Liability and Transportation Negligence.  We are thrilled to have them.
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.  Cheers to 2020!

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]

Below are two examples of summary judgment motions granted to a defendant retailer, one in Federal Court where the burden of proof proved key in the court’s decision, and the other in State Court based on the lack of a duty owed to the plaintiff. 

11/22/19     Monroe v. United States of America
United States District Court, Eastern District of New York
Slip and fall at United States Post Office resulted in summary judgment to defendant based on lack of proof establishing notice – another example of the how the burden of proof in federal court works to a defendant’s advantage in a premises liability case.  Practice Point:  always consider removal where appropriate.

Customer brought action against United States, alleging claim for negligence pursuant to the Federal Tort Claims Act (FTCA), arising from alleged slip and fall that occurred at the United States Post Office.  It had snowed several days prior and there was still snow on the ground outside. At the time, a long rubber runner mat was on the floor beyond the second set of doors leading to the service counters. Beside the runner was a yellow cone.   Plaintiff testified that, once she passed the second set of doors, she “went in the air and fell” and felt as though she “slipped on a banana.” Plaintiff got up from the floor and felt moisture on her coat sleeve and hands.  Plaintiff took photographs of the area where she fell. Those photographs display a runner and cone. The photographs provide no indication of whether the floors or Runner were wet or dry. Additionally, Plaintiff testified in her deposition that she did not recall whether she slipped on the floor or the runner and did not know what she stepped on that caused her to fall.  There was no suggestion that any errant items were on the floor.  The court noted the burden of proof on summary judgment is procedural and federal law applies.  Further, under federal law, the moving party need not make any affirmative prima facie showing on a motion for summary judgment, and may discharge its burden of proof merely by pointing to an absence of evidence to support an essential element of Plaintiff’s claim.  Given this standard, defendant successfully pointed to plaintiff’s lack of proof establishing defendant had notice of a dangerous condition and defendant’s motion was granted.
*E-mail us if you need a copy of the decision
11/27/19           Aupperlee v. Restaurant Depot, LLC
Appellate Division, Second Department
Jury verdict thrown out based on Court’s determination earlier summary judgment motion should have been granted because store did not owe the plaintiff a duty to protect her from the negligent actions of another shopper.

Plaintiff was a customer at Restaurant Depot when she was knocked to the floor by a U–Boat shopping cart, stacked high with items, that was being pushed by another customer.  Defendant moved for summary judgment but the motion was denied.  A jury trial followed.  Defendant was found to be 70% at fault.  Following the trial, Defendant appealed the denial of the summary judgment motion and argued the motion should have been granted because defendant did not have a duty to control the conduct of the shopper who struck the plaintiff with the shopping cart.  The court concluded that Defendant’s motion should have been granted, and the defendant did not owe the plaintiff a duty to protect her from the other customer’s negligent use of the U-boat shopping cart because it did not have control over that customer’s actions.  The jury verdict was thus overturned.


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

Greetings and happy holidays. 
One of the hazards of working in an office is the ridiculous amount of goodies that arrive in the weeks before Christmas. The danger isn’t the consumption from Christmas Eve forward, it’s going to work from mid-December on.  It’s an 8 year old’s dream – no vegetables required, go straight to dessert. 
December also brings a veritable onslaught of best-of-the-year lists.  It should come as no surprise to regular readers of this column that my focus is on the best record/best song of the year offerings.   My vote for song of the year, hands down, would be Gary Clark’s absolutely blistering “This Land” from last February’s record of the same name.  If you haven’t heard it, I highly recommend a quick detour to YouTube.  Not exactly vapid pop music and no auto-tune or sequined dancers required.   I have also found myself regularly going back to J. Mascis’s Elastic Days, an album released at the end of 2018.  Great record by a seriously talented guitarist.
The cases this month are fairly basic but serve as a good reminder to pay attention to the details.  Cross your T’s and dot your I’s, that sort of thing.
Best wishes for a happy and healthy holiday season and best wishes for a terrific 2020.
November 20, 2019               Ahmad v. New York City Department of Education
Appellate Division, Second Department
Notice of Claim failures resulted in dismissal of plaintiff’s complaint for failure to state a cause of action.

Plaintiff was injured while working at a jobsite owned by the defendant Department of Education.  Because he did not timely file a Notice of Claim he filed a petition seeking permission to file that Notice.  That petition was denied and plaintiff did not appeal.   Before the 1 year and 90 days statute of limitations expired, plaintiff filed an Order to Show Cause seeking leave to renew his application for permission to file a late notice of claim and commenced his lawsuit against the defendants.   

The Order to Show Cause for leave to renew his application to file the late Notice was denied because plaintiff had not met the requirements for either a motion to renew (newly discovered facts) or reargue (facts or law overlooked or misapplied).  The defendant also moved to dismiss the summons and complaint for failing to state a cause of action was granted – a prospective plaintiff must not only file a notice of claim, he or she must aver in their complaint that filing has occurred.  That did not occur in this case.   The failure to state a cause of action ruling is in line with prior Court of Appeals caselaw noting that the General Municipal Law Notice of Claim requirements are a condition precedent to bringing a suit against a municipality. 
November 27, 2019   I.T.K. v. Nassau BOCES Educational Foundation, Inc.
Appellate Division, Second Department
Special education student’s home district not liable for assault occurring at an offsite special education high school attended by student because it did not have custody or control over her at the time of the injury; other claims dismissed for failure to include them in plaintiff’s Notice of Claim.
Plaintiff was a special education student in the North Shore Central School District who was placed in a high school for special needs students through Nassau BOCES.  While attending class at that school, plaintiff was sexually assaulted by another student.  Her family then filed suit against North Shore, BOCES and the special needs high school.  North Shore moved for summary judgment, showing that the special needs high school was an unrelated, independent entity over which it exercised no control and that plaintiff was not in their custody or control when the assault occurred (plaintiff did not dispute that she was not in North Shore’s physical custody).   This scenario, where a student, as part of their public education, attends a program or school other than one in their home district is fairly common and this decision’s focus on what entity has custody and control over the student at the time the alleged harm occurred is in line with prior caselaw.  That the student attended that program or school through their home district is not the determining factor.

In granting North Shore’s motion, the court also rejected any claim by plaintiff that North Shore was negligent in preparing plaintiff’s Individualized Education Plan because that claim had not been included in plaintiff’s Notice of Claim.
November 20, 2019               Otto v. Miller, et al.
Appellate Division, Second Department
Municipality moving to dismiss for lack of required prior written notice must establish that notice was not received by those entities or departments listed in the prior written notice law.

Plaintiff alleged she was injured after she tripped and fell on a sidewalk owned by the Town of Islip.  After discovery, the Town moved for summary judgment, including the deposition testimony of a project supervisor from the Town’s Department of Public Works that he had directed an aide to search the departments records for any such notice and an affidavit from the aide confirming she had done the search and found no notice.  The plaintiff had no proof to counter these statements.  Despite that clarity, the Court found that the Town had not met its burden of proof and denied the motion. 

The Town’s problem was its own prior written notice law, which said that no suit could be brought unless prior written notice had been “given to the Town Clerk or Commissioner of Public Works” In its rush to the courthouse, the Town addressed only the Department of Public Works, omitting any proof that the Town Clerk had not received the required notice.  As the moving party, the Town bore the initial burden of proof to show the absence of the required written notice and its failure to include proof from the Town Clerk was fatal to the motion.


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

As we wind down 2019, this will be the final Toxic Exposures column in Premises Pointers.  With every ending there is a new beginning however as this column will be moving to our new Products Liability Pointers newsletter starting in January 2020!  If you don’t want to miss all the current news in asbestos, lead paint, and other toxic torts, please sign up for our newest publication.  Subscription fee waived for all subscribers! ?  As an added bonus, you will be treated to all the current news and decisions on design defect, manufacturing defect, and failure to warn claims.      

Speaking of new beginnings, the Potenza family was treated to an early Christmas present when this little rescue pup landed in our lap.

  Rosie is her name, cuteness is her game.

In toxic tort news, nothing of substance to report in the lands of asbestos and lead paint, but there is a very interesting (and lengthy) decision from the Third Department involving class certification for personal injury and property damage claims by residents of an upstate New York town exposed to microparticles in water discharged from a local manufacturing plant.

Happy Holidays to you and yours, and we hope you will continue reading, at least for the dad jokes, in our new format in January.

And now for this month’s dad joke:

What does a snowman do on vacation?

Chill out!

11/21/19          Burdick v. Tonoga Inc.
Appellate Division, 3rd Department
Not a “micro” claim: Third Department affirms class certification to claims of town residents exposed to microparticles from manufacturing facility.
This case involves claims against the defendant company that for more than 50 years owned and operated a manufacturing facility located in Rensselaer County that involved the use of the chemical compounds perfluorooctanoic acid and its predecessor ammonium perfluorooctanoate (hereinafter jointly referred to as PFOA), as well as perfluorooctanesulfonic acid and its predecessor perflourooctane sulfonate (hereinafter jointly referred to as PFOS) to make water resistant materials. This manufacturing process caused PFOA and PFOS to be converted to microparticles that were discharged into the surrounding soils and groundwater. The Federal Environmental Protection Agency (EPA) issued a provisional health advisory regarding the health effects of exposure to water contaminated by PFOA and PFOS in 2009, which was replaced in 2016, to require, among other things, remediation where the levels of the chemicals exceed 70 parts per trillion.
Testing revealed that PFOA concentrations in the municipal water supply exceeded the EPA's recommended minimum concentration, and that excessive concentrations of PFOA and/or PFOS were in well water in the area surrounding defendant's facility and in the leachates from the Town landfill. In May 2016, the DEC declared defendant's facility to be a State Superfund site and designated it to be a significant threat to public health.
Plaintiffs, residents of the Town, commenced this action as a proposed class action, alleging that defendant's use and improper disposal of PFOA and PFOS caused personal injury and property damage. In their complaint, plaintiffs proposed four classes: (1) a public water property damage class; (2) a private well water property damage class; (3) a private well nuisance class; and (4) a PFOA invasion injury class. Generally, the putative class members were individuals who owned or leased property in the Town or who ingested contaminated municipal or well water or inhaled PFOA or PFOS particulates in the Town and had demonstrable evidence of elevated levels of the chemical in their blood system.
NY CPLR § 901, which governs the prerequisites to a class action, provides that one or more members of a class may sue or be sued as representative parties on behalf of all if:

  1. The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
  2. There are questions of law or fact common to the class which predominate over any questions affecting only individual members;
  3. The claims or defenses of the representative parties are typical of the claims or defenses of the class;
  4. The representative parties will fairly and adequately protect the interests of the class; and
  5. A class action is superior to other available methods for the fair and efficient adjudication of the controversy.

As proponents of the class action, plaintiffs bore the burden of demonstrating that five prerequisites can be met.  The issues on appeal stem from Supreme Court's determination with regard to three of these prerequisites – namely, whether there are questions of law or fact common to the class which predominate over any questions affecting only individual members; whether the claims or defenses of the representative parties are typical of the claims or defenses of the class; ... and whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 
In support of their claim that there were common questions of law or fact, plaintiffs relied on the opinions offered by an environmental engineer, a physician, an epidemiologist and an economist. According to plaintiffs' experts, the “overwhelming source of PFOA contamination” in the Town's drinking water was defendant's facility and that it was “highly likely” that properties within a seven-mile radius of defendant's facility were contaminated by particulates that had been released from defendant's facility. Expert proof further demonstrated that it was “more probable than not” that there is an association between exposure to PFOA and kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, hypercholestemia and preeclampsia. According to plaintiffs' economist, whether the contamination had an adverse impact on the local housing market could be determined on a class-wide basis using established statistical methods.
In opposition to plaintiffs' motion, defendant submitted countering opinions by an economist, toxicologist, a geologist and a physician. The Appellate Division determined that plaintiffs' submissions establish that there are common questions of law or fact regarding whether defendant negligently discharged PFOA and PFOS and whether such negligent conduct caused property values to fall or the quality of life to suffer. Defendant's argument that individual class members will have different damages, though likely true, does not alter this conclusion. Even if, after determining the answers to these common questions, it is clear that questions peculiar to each individual may remain or that there are varied damages suffered among class members, class certification is still permissible. 
Plaintiffs also sought to certify an “invasion injury” class of plaintiffs who seek consequential damages and injunctive relief requiring defendant to fund a medical monitoring program. The proposed class includes individuals who have ingested water contaminated with PFOA or PFOS sourced from either a well located within a seven-mile radius of defendant's facility and who have blood serum levels elevated above the recognized average background levels. The Court determined that the common factors shared by the proposed class members are exposure to contaminated water from a well or municipal source within a seven-mile radius of defendant's facility and demonstrable evidence of PFOA blood levels far in excess of average levels, with no present PFOA-related illness or injury.  Each of the class representatives either resided in the Town for several years or currently resides in the Town on property that they own or lease.  The Third Department agreed with Supreme Court's determination that, in addition to those questions common to the property classes, the answers to certain additional common questions will be applicable to all members of the invasion injury class, for example: (1) whether medical monitoring is an available remedy; (2) the extent of the health hazard presented by exposure to PFOA; and (3) whether the members of the class are at significant increased risk for disease based on the excess accumulation of PFOA in their bodies. Under these circumstances, the Third Department agreed that the Supreme Court properly certified the invasion injury class to seek consequential damages in the form of medical monitoring, and noted going forward, that the Supreme Court has “considerable flexibility” and may create subclasses to resolve certain issues or decertify a class at any time.
The Third Department also agreed with the Supreme Court's determination that the proposed property classes and the medical monitoring class met the typicality and superiority class certification prerequisites. The typicality prerequisite is met where a plaintiff's claim derives from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory.  The affidavits by the putative class members each demonstrate that the claims of those that owned property and resided on property in the affected area are based on the same alleged conduct, that is, defendant's discharge of PFOA and PFOS into the air and soil surrounding its facility. The affidavits further demonstrate that they were exposed to PFOA while residing in the Town on property that they leased or owned. Though the damages alleged by the representative plaintiffs are dissimilar, this is not relevant to determining typicality.   
Finally, because certification will allow one action to do a job, or a good part of it, that would otherwise have to be done by many, and avoid multiple lawsuits involving claims duplicative of those asserted in this action and inconsistent rulings by various courts in this state, and thus conserve judicial resources, the Third Department affirmed the Supreme Court's determination that class certification is superior to adjudicating claims individually.


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

Dear Readers,
In preparing my column this month, I spent a considerable amount of time thinking back on 2019 and am left wondering how so much change has been packed into a single calendar year.  It’s hard to view 2019 as anything but a year of absolutely sweeping change—changes in the law, changes in practice, and changes at home. 
In June, Governor Cuomo issued a press release declaring the six month flurry of legislative enactments by the New York State Legislature “the most productive legislative session in modern history.”  In total, 935 bills were passed by the bicameral legislature between January and June; 618 of those bills have been signed into law by the Governor and 127 still await his signature; only 70 have been vetoed by Governor Cuomo.  The subject matter addressed by lawmakers was broad—indeed, this year, New Yorker’s saw the enactment of legislation: intended to address climate change, eliminating the gay and trans “panic defense,” a state-wide ban on conversion therapy, prohibiting discrimination on the basis of gender expression (the Gender Expression Non-Discrimination Act aka “GENDA”), expanding protections against sexual harassment, codifying Roe v. Wade (the Reproductive Health Act), tightening rules and regulations related to gun purchasing and ownership, providing for early voting and other electoral reforms, expanding the statute of limitations for criminal and civil actions arising from rape, and expanding the statute of limitations and reviving old claims arising from childhood sexual abuse (the Child Victims Act).
In my own personal practice, the passage of the Child Victims Act has had the most profound impact.  Not only does it raise basic procedural questions (which are not actually so simple because of more complicated questions and concepts like due process, see Doe v. MacFarland below), but it plays to a trend we are seeing more and more often—attempts at social justice through the alteration of procedural, legal rules. 
In the 2020 legislative session, I expect the number of “big tickets” to rise—I expect the Legislature to revisit the idea of legalizing marijuana, to contemplate major overhauls to the New York State Court System, and to spend considerable time on bills intended to extend protections for the victims of abuse, neglect, and domestic violence. I would not be surprised to see the debate surrounding e-cigarettes and vape products continue to ramp up as well.
As we leave 2019, it’s hard not to feel like one’s head is on a swivel—this is especially true if, like me, your personal life and career have also continued to evolve.  This year has provided me with excellent opportunities to grow as an attorney (presentations, my first solo trial, a growing case load) and as a human being (now known as “mommy”). And so, as I bid adieu to 2019 (and to the office until the end of the last half of my maternity leave ends in February), I leave you with this last bit of well-loved advice—"Life moves pretty fast.  If you don’t stop and look around once in a while, you could miss it.”

December 10, 2019    Doe v. MacFarland, et al .
New York State Supreme Court, Rockland County
An extremely in-depth analysis of a petition to proceed as “Jane Doe” in a CVA case; it’s not as simple as you think.
The Court’s opinion and analysis relates to a plaintiff’s petition to proceed under the pseudonym, Jane Doe, in a CVA case against her former guidance counselor (MacFarland) and the School District that employed him (Clarkstown Central School District).  According to the Complaint, beginning in May 1984 and continuing for five years (including a time after the plaintiff had reached the age of consent and graduated) MacFarland engaged in sexual activity with the plaintiff while she was a minor. Plaintiff claims that the relationship was open and well known to school officials, but that no one interceded on her behalf.  MacFarland denies engaging in a sexual relationship with the plaintiff while she was a minor and states that the two participated in a consensual relationship only after plaintiff turned 18. 
The School District did not oppose plaintiff’s petition to proceed anonymously, however, MacFarland did, arguing that allowing the plaintiff to proceed anonymously is injurious to his reputation and prejudicial to him; that plaintiff has placed her own credibility at issue by bringing suit; and that allowing plaintiff to proceed anonymously negatively impacts his ability to defend the action and impugns his state and federal due process rights.
Since August, there has been considerable confusion about some of the procedural “blind spots” of the Child Victims Act, including the “right” of the plaintiff to proceed with a civil suit anonymously.  Indeed, the ink wasn’t even dry on the page when attorney advertising began advising potential clients that victims of child sex abuse could proceed with civil lawsuits anonymously.  “So ubiquitous have these advertisements become that it is likely that the public perception is that plaintiffs have a nearly absolute right to proceed in these cases without revealing their identity…[even] counsel bringing these actions and applications to proceed anonymously often fail to submit an affidavit or other showing of the necessity for anonymity.”
As the Court points out, other trial level courts throughout the state have similarly addressed this thorny issue in the early days of CVA litigation, and with varied results—some courts have granted applications to proceed anonymously where the application is unopposed and plaintiff submits an affidavit stating that the case is likely to draw attention from the media and, if not allowed to proceed under a pseudonym, the media attention may inhibit the plaintiff and other victims from coming forward; other courts have denied the application with leave to renew where the application was made without an affidavit from the plaintiff.
Interestingly, Judge Marx also criticized some of the previous trial court decisions on this topic (including the one covered in this column last month), stating that the sparse analyses of those opinions tend to make dangerous presumptions (“first…that a plaintiff who seeks to proceed anonymously should be granted that status…presumably without any real showing that such treatment is warranted in a particular case [and] second…that a “plaintiff as the alleged victim of sexual abuse has undoubtedly suffered great emotional distress” [which] “sounds perilously close to being an evaluation on the merits of plaintiff’s claim in that case and indeed, of all claims filed by plaintiffs seeking damages for alleged child abuse, even before any proof has been tendered.”)
After conducting an extensive survey of the federal and state case law available on this topic, the Court came up with the following 15 factors (which are not exhaustive) to consider in deciding whether any party, plaintiff or defendant, should be allowed to proceed anonymously (indeed, the fact that defendant MacFarland had not also moved to proceed anonymously appeared to be an additional factor in the court’s decision to ultimately grant plaintiff’s petition):

  1. Is the application supported by an affidavit by a party with knowledge?
  2. Does the case involve matters which are ordinarily and customarily kept private because of their sensitive or personal nature?
  3. Does identification of the party seeking to proceed under a pseudonym present the risk of harm to him/her or other innocent individuals?
  4. Will the individual seeking anonymity/pseudonymity suffer the harm sought to be protected against by requiring his/her identity to be revealed to the public?
  5. Is the individual seeking anonymity/pseudonymity particularly vulnerable to possible harms of disclosure?
  6. Is the party seeking anonymity challenging any governmental activity?
  7. Will the defendant(s) be prejudiced by allowing plaintiff to proceed anonymously/pseudonymously?
  8. Has the identity of the party seeking anonymity/pseudonymity already been publicly disclosed?
  9. Is the dispute one in which a strong public interest is implicated or is the dispute strictly legal in nature?
  10. Are there other mechanisms by which the party seeking anonymity/pseudonymity can be protected?
  11. Will any of the parties be put to excessive cost in redacting a party's name from litigation documents?
  12. Will anonymity/pseudonymity affect the willingness of a party to proceed with his/her claims?
  13. Will allowing a party to proceed anonymously/pseudonymously create an imbalance in negotiating positions?
  14. Will allowing a party to proceed anonymously/pseudonymously encourage a party to admit to criminal activity?
  15. Are there any other relevant factors that the Court should consider in a specific case?


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

Greetings Subscribers!
Oh, what a Monday morning it is as the Buffalo Bills are back in the playoffs for the second time in the last three years! Additionally, I will be in the fantasy football championship in three of my four leagues after the Monday Night Football game tonight. Life is great. Happy holidays to you and yours.
This month, I report on two discovery cases and two involving CPLR § 5105 and default motions. Here is a free public service tip: a court may, under CPLR § 3126, strike “pleadings of parts thereof” as a sanction against a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed”. The trial court has broad discretion in determining whether a party’s conduct is willful or contumacious, which can be inferred from the repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for said failures. If you want to further discuss your discovery issue or spoliation sanctions and strategies for avoiding them, just send me an email as we enjoy working through your situations.
Until next month, Happy New Year!


12/12/19    Higgins v Williams
Appellate Division, First Department
Plaintiff’s failure to keep in contact with his attorney did not constitute a reasonable excuse for his default, resulting in discovery sanction of precluding him from testifying at trial or submitting an affidavit in opposition to any summary judgment motion.
The trial court denied plaintiff’s motion to vacate an order entered on default granting defendant 44th Enterprises’ motion for discovery sanctions to the extent of precluding plaintiff from testifying at trial or submitting an affidavit in opposition to any summary judgment motion.
The First Department unanimously affirmed; finding plaintiff failed under CPLR § 5105 (a)(1) to demonstrate a reasonable excuse for his default. The Court rejected his explanation that he changed his cell phone number several times and his attorney’s paralegal did not locate or contact him – in other words, plaintiff’s “failure to maintain contact with his attorney and to keep himself apprised of the progress of his lawsuit” – which is not reasonable. Since the Court held plaintiff failed to proffer a reasonable excuse for his default, it did not address whether he demonstrated a meritorious claim.
12/12/19          Abrew v Triple C Props., LLC
Appellate Division, First Department
Defendant’s request for discovery on a prior unrelated injury permitted because it was relevant to the injuries to the parts of the body that were placed in controversy in the lawsuit.
Plaintiff was injured when the ceiling in his apartment collapsed on him, which resulted in two back surgeries. According to his medical records, these back surgeries were complicated and protracted by a prior hernia surgery. The trial court denied defendants’ motion to compel plaintiff to provide unrestricted medical authorizations and for records relating to plaintiff’s prior sports hernia.
The First Department reversed and granted defendants’ request for authorizations for medical records relating to plaintiff’s hernia injury from the date of that injury to the present; finding the records from that injury are material and necessary to his claim for pain and suffering relating to the back surgeries. The Court rejected plaintiff’s argument that defendants failed to provide an affidavit of a medical expert linking the hernia injury to his back surgeries because the operative reports, written by doctors, noted the effect of the prior hernia surgery on the back surgeries.

12/19/19          Kalaba v Macy’s, Inc.
Appellate Division, First Department
Plaintiffs demonstrated a potentially meritorious negligence claim and defendants were not prejudiced by plaintiffs’ default such that the Court vacated default and held plaintiff’s claims should be resolved on their merits.
The trial court denied plaintiff’s motion, pursuant to CPLR § 5105, to vacate their default in opposing defendant’s motion to strike the complaint. The First Department unanimously affirmed; finding plaintiffs demonstrated that they were unaware their former counsel failed to respond to defendant’s initial discovery demands and to oppose the motion to strike the complaint. Additionally, the Court held plaintiffs’ affidavit set forth a potentially meritorious negligence claim, and given the absence of prejudice, plaintiffs’ claim should be resolved on their merits.

12/20/19          Adam v New York City Tr. Auth.
Appellate Division, Second Department
Defendant’s request for discovery on a prior unrelated injury permitted because it was relevant to the injuries to the parts of the body that were placed in controversy in the lawsuit.
Plaintiff, while on her way to work, alleged was injured when she slipped and fell on a clear liquid “like water” as she was entering a subway car at the Carnarsie-Rockaway Parkway train station. The trial court granted plaintiff’s motion, pursuant to CPLR § 3126, for sanctions upon defendants for spoliation of evidence to the extent of directing defendants to pay and produce eight individuals for depositions.
The First Department unanimously modified the trial court’s decision; findings defendants did not have an obligation to preserve the evidence plaintiff sought before it was destroyed in the regular course of business. However, rather than directing defendants to pay for the depositions of the eight subway car cleaners, the Court held plaintiff may depose whichever individuals who may have knowledge of the cleaning of the subject car they wish who are still employed by the NYCTA, albeit at their own cost.


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

Dear Readers,
December is flying by and the holidays are almost upon us! It is hard to believe that the end of a decade approaches. This is only the second decade I have lived through fully, but it was a big one! I started the decade in high school, graduated, went to college (didn’t like the first one I went to and transferred to another), graduated from the second college I attended, bought a house, went to and graduated from law school, got a job in my chosen career field (shout out to H&F), passed the bar exam, AND was admitted to practice law in NY. Wow, I’ve been busy. The new year comes with the milestone of my first full year in practice as an admitted attorney and I can only imagine my life will become even busier in the coming months and years. I look forward to seeing what a new decade brings and I hope that you all have a wonderful rest of the year celebrating with family and friends!
This month I have another good selection of elevator cases and one dog bite case. In the dog bite case, I discuss the never-ending topic of whether or not a dog had vicious propensities. Then, in the first elevator case, I discuss the dangers of jumping out of a stalled elevator, for both safety and legal reasons. In the second elevator case, I talk about why the elevator service and inspection companies are released from all claims while the building owner is not after a new tenant dies falling down an elevator shaft.
Until next time,

11/15/19          Modafferi v. DiMatteo
Appellate Division, Fourth Department
Issues of fact regarding dog’s vicious propensity and owner’s knowledge of same preclude summary judgement.
The Plaintiff was walking her small (breed unknown), leashed dog by the Defendant’s house when the Defendant’s two dogs escaped from their fenced in backyard. One of Defendant’s dogs attacked Plaintiff’s dog, and as Plaintiff tried to separate the gods, she was bitten by the Defendant’s dog. The only evidence presented about the Defendant’s dog’s vicious tendencies was the Plaintiff’s own affidavit that stated that after she was bitten the Defendant told her that she was aware of the risk that her dogs would attack small dog.
It is well established that “the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities" Such knowledge may be established by proof of prior acts of a similar kind of which the owner had notice. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation, which can include behavior that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at harm. Thus, the court concluded that there were questions of fact about the Defendant’s dog’s vicious propensities and whether the Defendant had notice of such tendencies.

11/21/19          Estrella v. Fujitec Am., Inc.
Appellate Division, First Department
Jumping out of a stalled elevator a few minutes after calling for help is a superseding cause of any accident or injuries as a result of the jump.
Plaintiff was injured when she attempted to exit a service elevator in the building where she worked after the elevator stalled near the top floor of the building. She sued, among other, the elevator maintenance company for negligent maintenance or repair of the elevator. The elevator maintenance company moved for summary judgment.
In support of their motion, the elevator maintenance company presented testimony of several witnesses. In the testimony, a coworker of Plaintiff’s said that the elevator shook and the lights went out for a few seconds. Plaintiff testified that she used the intercom in the elevator to contact the building's doorman, who said he would call the elevator mechanic. A few minutes later, another coworker, who was also in the stalled elevator, pried the door open. Plaintiff saw that the elevator was about 2½ feet above the floor level, and decided to jump out, believing she could do so safely.
Under these circumstances, Plaintiff's act of jumping from the stalled elevator was an unforeseeable, superseding cause of her accident, which terminates any potential liability of defendant elevator maintenance company for negligent maintenance or repair of the elevator. Given the evidence that the elevator had been stalled for only a few minutes and that the doorman had been contacted, there was no emergency situation necessitating plaintiff's jump from the elevator. Thus, the elevator maintenance company motion was granted.

12/12/19          Baez v. 1749 Grand Concourse LLC
Appellate Division, First Department
Death by elevator shaft requires jury determination on foreseeability and is not decided on law for building owners, while elevator maintenance and inspection companies get claims dismissed against them for no duty.
Plaintiff, while moving into his apartment at 1749 Grand Concourse (building owner), fell down an elevator shaft and died. Lemle was the property manager, Dunwell was the elevator maintenance company, and Municipal was the elevator inspection company hired to inspect the elevators once before the incident. All parties made motions for summary judgment. 
As to the building owner and plaintiff’s motions, the court found that there were issues of fact regarding whether the building owners were negligent in permitting the elevator to operate without door rollers, link arms, or a location indicator; in allowing the decedent to use the elevator unsupervised, without an elevator operator; and in moving the elevator while the decedent was still using it, without notifying him that it had been moved. Issues of fact also exist as to whether the slim jim (I googled an elevator slim jim and the first three items that appeared were a slim trash can from Amazon, slim jim the food aka the meat stick, and a photo of a fireman using a thin metal rod to pry elevator doors open, so I am assuming the thin metal rod is what we can consider the slim jim to be) that the decedent used to enter the elevator and instructions in its use were given to the decedent by a building representative; whether the building representative expressly advised the decedent that the elevator cab would be where he left it because he was the only one using it; and whether the building superintendent was aware of the decedent's profession as an elevator mechanic before the accident. The court determined that the resolution of these issues is necessary for a determination of foreseeability and thus of proximate causation.
Municipal’s motion to dismiss the building owner’s cross-claims against it was granted as Municipal fulfilled its contractual obligations to the building owner by performing an inspection and preparing an ELV3 form, which detailed the lack of door rollers and other deficiencies. There was no evidence in the record that any of the defects required Municipal to shut the elevator down. Dunwell’s motion dismiss the cross-claims from the building owner was also granted as Dunwell fulfilled its contractual obligations to the building owner by performing monthly maintenance and submitting a proposal to replace the missing door rollers. There was no evidence in the record that any of the alleged defects required Dunwell to shut the elevator down and this was not a situation where the elevator maintenance company completely assumed the building’s responsibility to maintain the elevator.
Finally, Dunwell made a motion to dismiss the plaintiff’s claims against it, which was granted because Dunwell could not be held liable to the plaintiff since it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them. Moreover, Dunwell did recommend that these parts be replaced, but its proposal was not accepted by the building owner and the governing maintenance agreement did not allow Dunwell to replace them without authorization. The maintenance agreement was not comprehensive and exclusive and therefore did not displace the building owner’s obligations to maintain the elevators in a safe condition. Additionally, an elevator maintenance company owes a no duty of care to members of the public. Thus, their motion for summary judgment dismissing the plaintiff’s claims against them was granted.


Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Marina A. Barci
[email protected]


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