Premises Pointers - Volume III, No. 8

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Premises Pointers
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Volume III, No. 8
Wednesday, January 8, 2020
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
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Municipal Liability
Nursing Home Liability



Happy New Year and welcome to 2020!  We are very excited to be kicking off a new year (and new decade) and have a few announcements from our Premises Pointers team.  But before that, I want to welcome our three new attorneys who joined the Firm on January 2nd.  They are Diane Bucci, Timothy Welch and Brenna Gubala.  Diane is a welcome addition to our Insurance Coverage Department and will be working on complex and sophisticated coverage matters.  She is admitted in both Connecticut and New York and joins are ever growing team of downstate lawyers.  Both Tim and Brenna, experienced litigators, are joining our Litigation Department and will be practicing in the areas of  New York Labor Law, Premises Liability and Transportation Negligence.  We are thrilled to have all of them on board!

Now from the Premises Pointers front, joining as regular columnists are Robert Hewitt from our Melville (Long Island) office (see more information about our Melville team here) and Brian Webb who works out of our Buffalo office handling matters from Buffalo to Albany.  Rob has significant experience handling all types of premises liability cases, so if you have a question or a case pending in the New York City area, give Rob a call.  He would love to hear from you.  Brian focuses his practice on defending against claims of personal injuries resulting from motor vehicle accidents, as well as premises liability.  He is also a member of the firm’s 24-Hour Emergency Response Team for trucking and other accidents, as is yours truly.  All of our team members are experienced in conducting on site, immediate investigations of trucking, construction site and other catastrophic accidents (see more information about our team here).
We are also debuting a new column this month -  Nursing Home and Assisted Living Facility Litigation - written by our nursing home liability practice group team headed by attorney Patrick B. Curran, an experienced attorney who has successfully obtained more than 70 defense trial verdicts.
And lastly, while we at Premises Pointers are sad to say goodbye to Marina Barci, we can’t wait to see her new column in Products Liability Pointers next week – be on the lookout for the inaugural issue coming out on January 15th!  Let us know if you would like to be added as a subscriber to Hurwitz & Fine’s newest publication.

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!  It’s already off to a great start!

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]

What follows is the Tale of Two Cases - one case involves a rogue shopping cart and the other involves a rogue operator of an electric shopping cart.  Both cases were removed to Federal Court based on diversity.  Unfortunately for the shopping cart defendant, the motion was denied.  Fortunately for the electric cart defendant (this case was handled by our office), the motion was granted.
12/17/19           Cambria v. Costco Wholesale Corporation
United States District Court, Southern District of New York
Slip and fall allegedly caused by runaway shopping Court

Plaintiff alleges that she was injured as the result of a fall outside the Costco.  Plaintiff exited the store with a shopping cart.  While waiting for her husband to bring the car around, she stood with her hands on the shopping cart’s handle. The wind speeds were between 16 and 25 miles per hour, with gusts between 24 and 30 miles per hour at the approximate time of the accident.  Plaintiff observed that a Costco employee was having difficulty controlling a row of carts he was pushing.  Plaintiff then saw the employee in front of her, coming at her head-on.  She was standing still with her hands on the handle of her cart when she felt a jolt. The jolt pushed Plaintiff’s cart forward and to the right.  As a result, Plaintiff fell to her left, hitting the ground with her outstretched left hand and her left thigh. Before falling, Plaintiff felt a bang, which she further described as a jolt, from the impact of her cart being hit; she felt the impact come from the handle of her cart. Significantly, Plaintiff did not see the employee’s cart contact her cart. However, she believed that the side of employee’s cart contacted the handle of her cart.  Plaintiff testified that the Costco employee hit her cart and knocked her down.  She denied being unsteady on her feet due to gusting wind, and denied that she lost her grip on the cart due to the wind, though she thinks the wind pushed the employee which caused him to make contact with her cart.
In support of its motion for summary judgment, Defendant argued that Plaintiff was unable to identify the cause of her fall without resorting to speculation.  Defendant argued that (1) Plaintiff’s description of how the accident occurred “defies the laws of physics,” (2) Plaintiff never saw the employee’s shopping cart come into contact with her cart, (3) there is no circumstantial evidence supporting Plaintiff’s version of events, and (4) Plaintiff’s identification of the person in the parking as a Costco employee is vague, conclusory, and lacking specificity.
The court did not agree with defendant’s assertions citing to the numerous times plaintiff testified during her depositions that she saw a Costco employee coming toward her pushing several carts seconds before the accident.  Plaintiff testified that she believed the person she saw was a Costco employee because he was wearing a vest and name tag.  The court found Defendant’s contention that Plaintiff’s identification is lacking because she was unable to identify the person with more specificity as unavailing. Furthermore, Plaintiff denied that the wind caused her fall. The court stressed that the law does not require Plaintiff to have witnessed the contact to be able to offer evidence sufficient to survive summary judgment.  Thus, Defendant’s motion was denied.

8/20/19            Flynn v. Target Corporation
United States District Court, Western District of New York
12/26/19          Flynn v. Target Corporation – Report and Recommendation adopted by District Court Judge – send an e-mail for copy of decision
Shopper claimed injuries due to being struck by another guest using a motorized shopping cart

Plaintiff was standing near the end of an aisle when someone using a motorized shopping cart exited an aisle from her left, turned left, and made contact with her left hip and leg. The cart driver pushed Plaintiff to her right.  Plaintiff had a verbal exchange with the cart driver but otherwise let the driver "go about her business." Plaintiff did not know whether the cart driver purposefully tried to hit another shopper and guessed that the event was an accident and could not identify the cart operator.  She proceeded to check out with her items without reporting the incident, but returned to the store later in the day to do so.  By the time she reported the incident, there was no way to determine the cart involved or the identity of the operator.  There was no video footage of the incident and no known witnesses.  The court found Plaintiff’s testimony focused entirely on the conduct of the cart driver—how the cart driver made a turn into her and pushed her and then had a verbal exchange with her noting plaintiff did not sue the cart driver; she sued Target. With respect to Target, Plaintiff never testified to any visible defects with the motorized shopping cart and the motorized shopping cart involved in the incident could not be inspected because of the delay in reporting it. Plaintiff did not identify any deficiencies in Target's weekly inspections, such as a flaw in the inspection procedure or discrepancy in any inspection logs. Target's inspection protocol thus was uncontested. Plaintiff also did not testify as to any obstructions or problems with the floor area where the incident occurred and submitted no expert testimony regarding what warnings were missing from the cart or otherwise were not given to users of the cart, if any.  While Plaintiff attempted to rely on an unidentified staffer remarking about unidentified shoppers "driving like crazy" in carts at unspecified times, the court disregarded this statement as hearsay.  The court determined Target met its burden of proof and recommended granting Target’s motion.  The Report and Recommendation was then adopted by the District Court Judge.


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

Greetings.  Happy New Year.
I’m still waiting for winter to appear.  Mud does not equal snow.  I’m not looking for a blizzard, but a clean white coating would be nice.  And thanks to a drive back from the Albany area shortly before Christmas on a day when a forecast for ice and snow (which did not occur), my car has a thick enough coating of road salt to ensure I won’t have to worry about any snow or ice on my windshield for at least several more weeks.
My response to anyone repeating the by now tired trope that "rock is dead" remains the same – that you stopped listening doesn’t mean it’s dead.  Several relaxing hours were spent looking back at new music from 2019, including perusing the end of year best of lists to see if there was anything I missed.  If pop-punk is your thing, Toronto had a strong year, with Pup (Morbid Stuff) and Pkew Pkew Pkew (Optimal Lifestyles) releasing terrific records. On my list to listen to is Age Hasn’t Spoiled You from Toronto punk outfits Greys, which appears on a few best-of lists.  For those looking for something more mellow, Rodney Crowell’s Texas is gorgeous, as is Justin Townes Earl’s The Saint of Lost Causes.  Songwriter extrodinaires. 
Three cases for this month – the first addresses care and custody as it relates to supervision, the second a primary assumption of risk case that touches on whether motion practice or a trial should address an owner’s care of his/her property and the difference between naturally occurring conditions versus those resulting from lack of maintenance.  The third case looks at establishing notice of the essential facts and circumstances underlying the claim through a related filing – actual proof that reached the putative defendant is required. 
New columnist Brian Webb dissects the Fourth Department’s Beagle v. City of Buffalo, which looks at both a landowner’s duty to maintain a sidewalk abutting their property and the “caused, created or contributed to the allegedly dangerous condition” exception to prior written notice requirements. 

December 24, 2019    Mulligan v. Long Island Fury Volleyball Club
Appellate Division, Second Department.
Motion to dismiss negligent supervision claim denied where proof showed parents were not with team members during the entirety of the tournaments where the harm occurred.
Infant plaintiff alleged she was sexually abused on several occasions by her volleyball coach while at out-of-town tournaments when she was in middle and high school.  The abuse was alleged to have occurred at the team’s hotels during these tournaments.   Alleging a failure to state a cause of action, the volleyball club moved to dismiss plaintiff’s cause of action alleging negligent supervision.  The club argued that because plaintiff’s parents had attended the tournaments where the abuse occurred and had stayed at the same hotels as the team, the plaintiff was not in the care and custody of the plaintiff when the abuse occurred.
The court denied the club’s motion, pointing to the fact that while the plaintiff’s parents had attended her games during the tournaments, her nights were spent in hotel rooms with her teammates, under club supervision, at hotels arranged by the club.  That her parents may have stayed at the same hotels during the tournaments did not remove plaintiff from the club’s care and custody.
November 27, 2019   Ninivaggi v. County of Nassau       
Appellate Division, Second Department
Court finds primary assumption of risk applies, holding 14-year-old plaintiff was aware of the field conditions that lead to his injury.  In making its determination, the court highlighted a distinction between property that has fallen into disrepair and the natural features of the property.
14-year-old plaintiff was injured when he stepped into a depression while he and a friend were tossing a football around on a local school’s multipurpose athletic field.  The plaintiff admitted he was familiar with the condition of the grass field, which was described as choppy, wavy and bumpy, with several depressions.  Plaintiff claimed he was injured when he stepped into one of these depressions, measuring approximately 18 inches long, 6 inches wide and somewhere between 2-5 inches in depth.  The school district successfully moved for summary judgment, arguing that the doctrine of primary assumption of risk applied to the facts of the case.
The court upheld summary judgement, noting the plaintiff's testimony “demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed.”  In a lengthy dissent, Justice Joseph Maltese argued that by determining the field conditions were “open and obvious”, the majority had removed from consideration whether the property owner had met its duty to maintain its property in a reasonably safe condition.  He argued that plaintiff’s awareness of the field’s “state of disrepair” should not control and that the possibility of a serious injury was not an ordinary risk of “attempting to play ‘around’ numerous holes and depressions” on a field.  Noting Judge Maltese’s dissent, the majority pointed to a distinction between “premises having fallen into disrepair and those resulting from natural features of a grass field."
Putting aside the two sides' view of the field’s condition (“natural features” versus “State of disrepair”), it’s clear from his dissent that Justice Maltese views a trial, which would consider whether the property owner met its duty to maintain the property, as the preferred venue to determine potential liability for injuries resulting from the condition of a field or playing surface.  I think the question is where the tipping point lies – when, or under what circumstances, does the poor condition of the playing surface trump the use of that field by a knowing participant.
December 18, 2019    Barrer-Cohen v. Greenburgh Central School District
Appellate Division, Second Department
Petitioner’s application to serve a late notice of claim denied for lack of timely notice to the respondent of the essential facts and circumstances of the claim – petitioner could not show her related EEOC filing both occurred within the 90-day period after her claim arose or that the district received that filing.
Petitioner sought to pursue a state law claim against the district alleging breach of contract and violations of New York’s Human Rights Law against the district, her former employer. The either arose on June 20, 2017 (the district’s date) or July 1, 2017 (petitioner’s date), meaning the 90-day window to timely file a Notice of Claim expired on either September 18 or 28, 2017.  Petitioner served an (albeit late) Notice of Claim on May 14, 2018, followed by an Order to Show Cause seeking to either deem the May 14, 2018 Notice of Claim served nunc pro tunc or allow service of a late Notice of Claim.  That Order to Show Cause was granted.
Petitioner argued the district received actual notice of the essential facts of her claim via a “Charge of Discrimination” filed with the United States Equal Employment Opportunity Commission.  There does not appear to be any dispute that document contained the necessary information to put the district on notice – the question was when the district received that notice.   The EEOC filing is dated August 9, 2017 and does not include any notation that the district was copied on that filing.  The EEOC acknowledged the filing via a letter dated November 30, 2017, which the district acknowledged receiving, The district argues the acknowledgement letter was its first notice of the EEOC filing.  No proof was provided that the EEOC filing in fact occurred on or about August 9, 2017.  (Those familiar with late notice cases are well aware that notice to one entity does not constitute notice to a wholly separate and distinct legal entity, meaning the EEOC filing by itself would not serve as notice to the district.) 
The appellate court reversed, finding petitioner had not met her burden to establish (1) that the district had notice of the essential facts underlying her claim, (2) a reasonable excuse for the delay in seeking to serve a late notice, and (3) the district was not substantially prejudiced by the late filing.  The decision is based almost entirely upon a lack of notice to the district.  A look at the papers below (made easy by the wonders of e-filing) show petitioner’s counsel simply argued that August 9, 2017 EEOC filing occurred within 90 days of the accrual of her claim and provided no proof that the document was filed on or about that date or that the district received it prior to the November 30, 2017 acknowledgement letter.  Petitioner’s supporting affidavit did not even touch upon the EEOC filing, referencing only the commencement of a related federal court action in February of 2018.  This left the court with only the November 30, 2017 date for notice to the district and the petition denied.  The court summarily found petitioner had not provided a reasonable excuse (no excuse was even offered below) or established the district would not be prejudiced by the late filing.  Petitioner’s argument that the automatic referral to ADR and discovery process from the related federal suit, as well as the hearing pursuant to General Municipal Law §50-h would provide any information or evidence for the district to mount a substantive defense does not appear in the appellate decision. 


Nursing Home and Assisted Living Facility Litigation
By: Patrick B. Curran [email protected]

We are very pleased to introduce a new column for Premises Pointers addressing a burgeoning area of law: Nursing Home and Assisted Living Facility Litigation.  With this column, we hope to keep our readers apprised of new developments and legal decisions and provide pointers on how to respond to advancing litigation. 
Claims against skilled nursing and assisted living facilities, senior living residences and home care agencies are on the rise, bolstered by a zealous plaintiffs’ bar and aggressive advertising.  Statutes enacted in New York encourage litigation by providing remedies beyond traditional tort claims.  These claims have a tremendous adverse effect on the industry, leading to spikes in insurance premiums and limiting the financial resources to provide care.
Here at Hurwitz & Fine, we have been doing our part to push back.  Our team, including my Partner Chris Potenza, attorney Stephanie McCance, and dedicated paralegals Amanda Kielach and Levi Bourdette, has over 50 years of combined trial experience.  We have been successful in this push, obtaining defense trial verdicts and resolutions far below plaintiff’s asking price.  In fact, we were prepared to start a trial this week for an assisted living facility.  Plaintiff claimed the resident fell 18 times and sustained a hip fracture.   We were ready to present our caregivers at trial as the caring, compassionate, and hard-working people they are.  Plaintiff’s fracture was an unfortunate event but not the result of negligence on the part of our client.   Strong support from the insurance carrier in defending the claim went a long way toward reaching a fair and just resolution.
This month’s column includes a myriad of cases addressing hot button issues that arise in these claims, including the enforceability of a mandatory arbitration clause, an estate administrator’s capacity to sue, and the on-going battles to limit the scope of permissible discovery.  Your comments and feedback will be greatly appreciated, and we are happy to answer any questions you may have.


December 3, 2019       Ann Minogue v. Rishi Malhan, M.D., et al.
Appellate Division, First Department
Defendants could enforce a valid arbitration clause as Federal Arbitration Act preempts New York statue.
The Appellate Court held that the Supreme Court had erred in declining to enforce the arbitration clause between plaintiffs and certain nursing home defendants. The arbitration clause at issue was enforceable because the defendants were engaged in interstate commerce, thus the Federal Arbitration Act preempts the New York Public Health Law and New York State General Business Law. Arbitration was deemed the proper form of resolution for the issues being litigated since the pertinent issues between the parties had arisen out of the contract containing said enforceable arbitration agreement. The Court further held that the mere fact that plaintiffs had named additional defendants who were not signatories to the arbitration agreement did not foreclose the defendants right to enforce arbitration. This allowed certain defendants to proceed with arbitration where the remaining defendants were directed to continue with litigation.
Practice Pointer: Arbitration agreements at the time of admission can have significant benefits and should be considered by all long-term care providers to avoid the costs of protracted litigation. These agreements are vigorously resisted by plaintiffs as they negate the threat of a jury trial.   The United States Supreme Court has firmly stated that arbitration provisions in nursing home admission agreements are enforceable but only if they meet strict guidelines.  It is important to seek legal guidance when drafting arbitration agreements.

September 18, 2019    Mary Kiernan v. Booth Memorial Medical Center, et al.
Appellate Division, Second Department
Plaintiff can’t make staff say “cheese”: Discovery demand requesting the production of color photographs of personnel was held palpably improper.
In an effort to locate witnesses to defendant’s alleged negligent care, the plaintiffs served a discovery demand requesting disclosure of the names, last known addresses and color photographs of all personnel who worked on the floor where the decedent resided. The Appellate Court upheld the trial court decision that plaintiff’s request for color photographs of certain personnel was palpably improper, overbroad and unduly burdensome.
Practice Pointer:  Plaintiff’s discovery demands for personal information on current and former employees are sometimes excessive.  They demand the identity of everyone who worked in the facility for the duration of time the plaintiff resided there.  It is important to object to these demands as overbroad.  Be aware that plaintiff attorneys are permitted to directly contact former but not current employees.  Keep accurate records of the last known address and phone number of your former employees because your defense attorney will need it.

August 27, 2019          Reinaldo Rodriguez v. River Valley Care Center, Inc.
Appellate Division, First Department
Just in Time: Estate Administrator permitted to enforce decedent’s claims as he had timely obtained Letters of Administration during grace period.
These claims often involve deceased plaintiffs, and dead persons cannot bring lawsuits. In order to commence or continue a suit on behalf of a deceased nursing home resident, plaintiffs must obtain Letters Testamentary (or Letters of Administration where decedent had no Will) from the Surrogate’s Court.  In that way, an adult child or other representative of the decedent is appointed to act on behalf of the estate. 
In this case, the decedent plaintiff’s son timely commenced a prior action for personal injuries, medical malpractice and wrongful death against defendants in his capacity as "proposed administrator" of decedent's estate. The trial court dismissed the action pursuant to CPLR 3211(a)(3), for lack of capacity, since letters of administration had not been issued authorizing plaintiff to bring suit on behalf of the estate. Thereafter, the decedent plaintiff’s son commenced an essentially identical action as "voluntary administrator" of the estate. The defendants again moved to dismiss the complaint pursuant to CPLR 3211(a)(3), on the basis that plaintiff lacked the legal capacity to assert the claims on behalf of the estate.
Less than six months after the remaining claims against the hospital were dismissed in the prior action, the Surrogate's Court issued letters of administration to plaintiff, and plaintiff  cross-moved pursuant to CPLR 3025(b) to amend the caption and pleadings to recognize him as administrator. The trial court granted defendants' motions to dismiss. 
The First Department acknowledged that plaintiff, as voluntary administrator, lacked the legal capacity to enforce decedent's personal injury and wrongful death claims on behalf of the estate in this second action, but he could remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a), which was designed to ameliorate the potentially harsh consequence of applying a limitations period where the defending party has had timely notice of the action.  Thus, while plaintiff lacked the legal capacity to enforce decedent’s personal injury and wrongful death claims on behalf of the estate, he could remedy the defect by obtaining letters of administration within the six-month period allowed per the CPLR. As plaintiff had obtained the letters of administration on the last day of the six-month savings period, plaintiff’s legal capacity was held to be timely.
Practice Pointer:  When a new lawsuit is served, pay close attention to the description of the plaintiff. There is no such legal status as “Proposed Administrator.” Rather than serve an Answer to the Complaint, file a motion to dismiss the lawsuit.  If the party does not properly and timely go to the Surrogate’s Court to complete the process of appointing the administrator, the lawsuit may never go forward.
July 31, 2019  James Sutton v. Williamsville Suburban, LLC, et al.
Appellate Division, Fourth Department
Lack of personal knowledge of the facts in responding to motion results in default judgment.
In an action to recover for the death of a nursing home resident while under defendants’ care, the Appellate Court reversed the Supreme Court’s decision which denied plaintiff’s motion for default judgment and granted defendant’s cross-motion for extension of time to file answer. On appeal, plaintiff successfully established entitlement to a default judgment as the defendants failed to prove that they had a reasonable excuse for the default and a meritorious defense to the action. The case was decided on the basis that the proposed answer denying the allegations in the complaint was not verified by someone with personal knowledge of the facts.
Practice Pointer:  When a new lawsuit is served, be sure to turn over the suit papers to your insurance carrier immediately to allow your defense.  Failure to timely respond to the allegations in the complaint could compromise your ability to defend the case.


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

Greetings Subscribers!
Although the Buffalo Bills came out swinging in their second playoff game in three years, it was, sadly, not meant to be as the entire team laid an egg after halftime. However, they were not the only ones as the Patriots and Saints both also lost on Wild Card Weekend. I think we will be ushering in a new era of young, talented quarterbacks this year that should be highlighted these next few weeks and I cannot wait!
This month, I report one discovery case involving an issue not easily understood: conditional orders of preclusion. It is a form of discovery sanction under CPLR § 3126 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 take away from the Metro-North decision that with the conditional language, the Court relieves itself of the unrewarding inquiry into whether a party’s resistance [to responding to discovery demands] was willful.” If you want to further discuss your discovery situation or your favorite conditional order story, feel free to send me an email.
Until next issue…

12/18/19          Matter of Metro-North Train Acc. of Feb. 3, 2015
Appellate Division, Second Department
Conditional order of preclusion in Plaintiffs’ discovery motion order, without a finding of willfulness, requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order.
Plaintiffs were passengers on a train, the estate of the individual who operated the car, and the train’s conductor. After the train collided with the car, the third rail of the tracks pierced through the car and the train, causing a fire. Five passengers as well as the operator of the car died in the accident and others injured. The trial court granted plaintiffs’ motion to compel certain discovery and/or for sanctions under CPLR § 3126 to the extent of directing certain supplemental responses to plaintiffs’ discovery demands under threat of preclusion.
The First Department affirmed; finding the trial court providently exercised its discretion in granting plaintiffs’ motion, including the conditional preclusion language, without first making a finding of willfulness because the conditioning relieves the Court of “the unrewarding inquiry into whether a party’s resistance was willful.”


Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Robert E.B. Hewitt [email protected]

Dear Readers,
This is my initial column for Premises Pointers, and I am excited to be writing for you. Thank you to Marina for the hand off as she goes on to write for Products Liability Pointers. My family and I had a nice holiday season, flying down to Florida to visit my parents and my three grandparents. I hope you had a great holiday and a Happy New Year. May 2020 be a good one for all our readers. 
This month, I have a selection of elevator cases and one dog bite case. In one of the elevator company cases, defendant building maintenance company was kept in the case where there was issue of fact as to whether it displaced the owner’s duty to maintain the premises in reasonably safe condition where the contract showed it took over many of the duties as to such from the owner.  In the second case, the fact that defendant’s expert opined the elevator could not have acted the way plaintiff claimed led to issue of fact as to whether accident happened the way plaintiff claimed it did.    In the dog bite case, the property manager and owners of the property got out on summary judgment due to having no prior knowledge of vicious propensities. However, the dog owners’ motion was denied as the fact they locked the dog up on many occasions to limit its interaction with visitors raised an issue of fact as to vicious propensities.
Until next time,
12/12/19          Ileiwat v. PS Mercato Elevator
Appellate Division, First Department
Building maintenance company’s allowing the elevator to remain in service that injured plaintiff despite knowing it was in disrepair and being tampered with led to issue of fact as to what extent plaintiff’s comparative negligence may relieve the owner of liability.
Plaintiff alleged that he was injured by an elevator falling on him while he was in the elevator pit. The complaint and bill of particulars, construed in the light most favorable to plaintiff, alleged that the elevator maintenance company owed plaintiff a duty of care because, in failing to exercise reasonable care, it launched a force or instrument of harm and that the building maintenance company owed plaintiff a duty of care because it displaced the owner’s duty to maintain the premises safely. Accordingly, to establish their prima facie entitlement to judgment as a matter of law, defendants were also required to address these exceptions to the rule that a contractual obligation will not give rise to tort liability in favor of a third party as applicable to them.
The Appellate Division held that the building maintenance company Cooper Square failed to establish prima facie that it did not displace the owner’s duty to maintain the premises in a reasonably safe condition. Its management agreement with the owner authorized Cooper Square to make repairs or alterations to the premises and to purchase supplies and materials for the building. They also agreed to directly supervise the work of, hire and discharge all maintenance and security personnel.
However the elevator maintenance company which inspected and made repairs to the elevator before plaintiff was injured by it, established prima facie that it did not create or exacerbate the dilapidated condition of the elevator, and therefore did not launch a force or instrument of harm.  While the record suggests that they  knew that the elevator was in disrepair and being tampered with, it did nothing more than neglect to make the elevator safer — as opposed to less safe — than it was before the inspection and repairs were made.  The Appellate Division also pointed out that the maintenance company in this case had  a limited contract. It was not contractually obligated to perform all inspection and maintenance of the subject elevators. Instead it was limited to inspecting and maintaining certain components and aspects of the elevator.
With regard to the contested issue of causation, plaintiff was injured after allegedly following the assistant superintendent's instruction. The record suggests that the building maintenance company allowed the elevator that injured plaintiff to remain in service before his accident despite being aware that it was in disrepair and being tampered with. Accordingly, issues of fact exist as to whether and to what extent plaintiff's comparative negligence, if any, may relieve the owner of liability.

12/15/19          King v. Hoffman
Appellate Division, Fourth Department
Evidence that a dog was confined on prior occasions to limit its interactions with visitors led to issue of fact as to whether there was notice of prior vicious propensities.
The plaintiff's eight-year-old child FBK, suffered injuries inflicted by a dog owned by the defendants  (breed unknown). At the time of the incident, the plaintiffs lived in the first-floor unit of a two-family house, and the defendant dog owners, including a minor SH, lived in the second-floor unit. FBK asked SH for permission to enter the defendants' apartment to use the restroom. FBK claimed that before SH allowed FBK into the apartment, SH ensured that the Hoffman defendants' dog was secured upstairs. As SH and FBK walked up the stairs to the Hoffman defendants' apartment, the dog ran down the stairs and bit FBK on the leg and buttock area. The plaintiff commenced this action, inter alia, to recover damages based on a theory of strict liability.
As the Appellate Division noted,  the sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability, whereby a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities. The term vicious propensities is a somewhat vague term which includes the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm."

The Defendants could not demonstrate entitlement to summary judgment as the record showed that prior to this incident, the dog was often restrained within the defendants' apartment, particularly when visitors were present, but also, while only family members were present. By itself, the fact that a dog has been customarily confined cannot serve as the predicate for liability where there is no evidence that the dog was confined because the owners feared it would do  any harm to their visitors. Here, however, the record contained evidence that the defendants attempted to limit interaction between the dog and visitors. The record showed that SH attempted to secure the dog prior to letting FBK into the apartment on the date of the incident. The record also showed that the defendants acquired the dog partly to provide "security" for the family. In addition, viewing the evidence in the light most favorable to the nonmovants the record showed that approximately two months prior to the incident, this dog allegedly attempted to bite the plaintiff, tearing his pants leg. Further, the evidence of the "intensity and ferocity" of the attack tended to establish the defendants' knowledge of the dog's vicious propensities.
Summary judgement was granted to the defendant property owners and management company however.  To recover against a landlord and property manager for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the do. No evidence was presented the property owners and management company had knowledge of vicious propensities.

12/19/2019     Berra v. CHSP 36th Street LLC
Appellate Division, First Department
Defense expert’s opinion that accident was impossible to happen the way plaintiff claimed it did due to elevator design led to an issue of fact.
The Appellate Division reversed the decision granting plaintiff summary judgment on liability. The Court held that the opinion of defendant’s expert engineer, based on his inspection of the elevator, that the mechanical design of the elevator would make it impossible for the elevator car to free-fall or even speed up, raised questions of fact as to whether the accident occurred as plaintiff alleged and whether the doctrine of res ipsa loquitur applied here


Slip-and-Fall Law
By: Brian M. Webb [email protected]

Greetings readers.  My name is Brian Webb and I’m an associate attorney with Hurwitz & Fine.  Going forward, I will have a consistent column in each month’s Premises Pointers.  By way of background, I’ve been a litigation attorney since 2014, when I was admitted to practice law in the State of Illinois after obtaining my J.D. from DePaul University’s College of Law in Chicago.  I immediately began practicing as a trial attorney with a high-volume plaintiff-side law firm in Chicago, where I practiced for about three years.  At that point, I was lucky enough to be able to move back home to Buffalo, New York, get admitted to practice law in New York State and continue my career as a litigator.  Following my return, I began worked primarily as a plaintiff’s attorney for a local firm that specialized specifically in slip-and-fall accidents.  Roughly a little more than a year ago, I made the switch to defense work with Hurwitz & Fine.
The focus of my column will be on recent New York decisions concerning various aspects within the world of tort claims arising out of slips, trips, falls, stumbles, and essentially any other means by which a person can hurt themselves while walking.  While these cases will deal with basics of premises liability, I will attempt to focus on more specific doctrines within the world of slip-and-falls, such as open and obvious defects, trivial defects, the concept of “storm-in-progress,” as well as every snowplow contractor’s favorite legal concept, the Espinal doctrine.  The goal of my column is not just to find decisions that I believe highlight these concepts, but ideally also to assist you in spotting potential strengths/weaknesses in your particular claims and help stratege how to best use New York case law to you and your client’s advantage.
This month, I highlight three cases from throughout the State.  In the first, the Court of Appeals decided against expanding the duties of out-of-possession landlords to maintain properties that they lease out, even when that landlord appeared to explicitly agree to do just that.  The second is a refresher on the concept of a “trivial defects” as well as the consequence that repairing a sidewalk has on one’s duty to maintain the same.  The last one deals with not just the duty to maintain a sidewalk, but also an exception to the requirement that a municipality be given written notice prior to suit when that municipality takes actions to repair a sidewalk.


October 24, 2019       Henry v. Hamilton Equities, Inc.,
Court of Appeals
Language in an out-of-possession owner’s mortgage requiring it to maintain the property did not affect tenant’s duty in its lease with the owner to maintain the property. Summary judgment for owner upheld.

Plaintiff was injured at a nursing home when she slipped and fell on a pool of water allegedly caused by a leaking roof.  Plaintiff sued both the owners of the property and the tenant, the entity which operated the nursing home.  Under the parties’ lease the tenant was solely responsible for making all repairs and keeping the property in a safe condition, making the owner a typical out-of-possession landlord.

The general rule in New York is that an out-of-possession landlord is not liable for injuries caused by dangerous conditions on a property.  Where the lease provides that the owner remains responsible for maintaining the property, the owner’s out of possession status will not protect the owner from suit.    The premise behind this exception is that a tenant is unlikely to act when the landlord has agreed to maintain the property. 
The tenant opposed the owner’s motion for summary judgment by pointing to the owner’s mortgage, insured by the Federal Housing Administration, which required the property owner to maintain the premises in good repair in order to “protect both the physical asset[,] as well as the fiscal integrity of the property.”  Nothing in the mortgage agreement made any mention of the tenant’s responsibilities to maintain the property.
The Court of Appeal affirmed the lower courts’ order granting the property owner summary judgement.  The Court held the relationship between landlord and tenant as key to any analysis of the out of possession owner’s potential liability.  The Court determined that nothing in the owner’s mortgage affected the lease between the owner and the nursing home tenant.   

November 7, 2019     Claro v. 323 Firehouse, LLC
Appellate Division, Third Department
Third Department rejects “trivial defect” argument by property owners, grants summary judgment to one owner based upon the lack proof that it created the hazard.
Plaintiff was injured when she tripped on a transitional bevel between two sidewalks, located equally between properties owned by two different entities, a diner and a former firehouse.  The owner of the diner had replaced his sidewalk, a project that included the local Village of Catskill removing the old sidewalk and finishing the project by installing the paved bevel between the diner’s now sidewalk and the firehouse’s existing sidewalk.  After discovery, both property owners moved for summary judgment on two grounds: (i) that the defect was “trivial” and thus not actionable and (ii) that they did not have a duty to maintain the sidewalk.
The Third Department rejected the argument the defect was trivial in nature, noting, principally, that a defect’s “trivial” nature is not determined solely by its dimensions, but also by its appearance and location, which may serve to “magnify” the dangers posed.  Because the only evidence submitted in support of the claim the bevel was “trivial” were conclusory statements contained in an expert affidavit, the court held the owners had not met their burden of establishing the alleged defect was trivial as a matter of law.
The court acknowledged a property owner, solely because their property abuts a public sidewalk, does not owe a duty to maintain the public property.  Exceptions to this rule include where the property owner affirmatively creates the condition or when a local ordinance required the property owner to maintain the sidewalk.  Because it had replaced its sidewalk, thereby altering conditions, the court found a question of fact as to whether the diner had created the allegedly dangerous condition.  The owner of firehouse submitted proof that he had not made any changes to the sidewalk in the 12 years he had owned the property, he was not notified of and was not involved in the sidewalk replacement work done by the diner’s owner and the Village, had no contract with the contractor who did the work and that the Village, not him, installed the material in the area between the two sidewalks.  Because this proof established that the owner of the firehouse had not created the allegedly dangerous condition, his motion for summary judgement was granted.

December 20, 2019    Beagle v. City of Buffalo,
Appellate Division, Fourth Department
Suit to proceed against property owner and city for injuries sustained due to a sidewalk raised by tree roots
Plaintiff tripped and fell on a sidewalk that included several slabs that had been forced up by roots extending from a nearby tree located on property owned by the City of Buffalo. According to nearby property owners, the City had used cold patch, an asphalt substitute, had been used to try and fill in the gap between two sidewalk slabs.   Plaintiff sued both the owners of the property abutting the sidewalk and the City of Buffalo.
Generally, property owners are typically not liable for injuries sustained due to a sidewalk that abuts their property unless (i) the sidewalk was constructed specifically for their benefit, (ii) the owners affirmatively created the defect or (iii) the owner is obligated by statute or law to maintain sidewalks abutting their property.  Unlike Claro (above), the City of Buffalo has such an ordinance, leading the Court to rule that the property owners owed a duty to keep the abutting sidewalk in good repair.
The more interesting aspect of the decision is the Court’s response to the City’s argument that it had not received the required prior written notice of the allegedly dangerous condition.  The court held that the prior written notice requirement did not apply because of a question of fact regarding whether the City had created or contributed to the hazard.  The issue wasn’t that the City owned the tree and had failed to address the root growth that led to the sidewalk issue – the exception to the prior written notice requirement where the municipality has created or caused the hazard does not apply to conditions that develop over time.   The issue here was the witness testimony that City workers had placed the cold patch materials in the gap between the sidewalk slabs.   As a result of that testimony, the court held that the City had not met its burden of establishing that it did not “affirmatively create” the condition or that the alleged hazard was the result of conditions that developed over time.

Read on for additional case reports


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]

Brian M. Webb
[email protected]

Rob E. Hewitt
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]

V. Christopher Potenza
[email protected]


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