Premises Pointers - Volume III, No. 9


Premises Pointers
Watch your step!

Volume III, No. 9
Thursday, February 13, 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 & Assisted Living Facility Litigation



Happy Valentine’s Day to all!  I am personally hoping for a box of Watson’s sponge candy.  For those of you who have never tried sponge candy, trust me when I say it is a must!  Judge for yourself…
On the Hurwitz & Fine front, last month I welcomed 3 new attorneys who joined the Firm on January 2nd - Diane Bucci, Timothy Welch and Brenna Gubala.  This month, I am pleased to introduce Cara Cox, who joins our Insurance Coverage Department.  I also have the pleasure of welcoming (and congratulating) 3 Hurwitz & Fine attorneys to the practice of law – Ryan Maxwell, C.J. Englert and Stephanie McCance – all 3 were sworn in before the Fourth Judicial Department last month and are coming up upon their one-month anniversary as lawyers!  We welcome them to the profession! 
On the Premises Pointers front, we welcome back Anastasia McCarthy after her maternity leave and are thrilled to have our new Premises Pointers contributors attorneys Pat Curran, Rob Hewitt and Brian Webb.
Don’t forget we have a 24-Hour Emergency Response Team for trucking and other accidents.  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.)
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]

2/11/2020           Jefferson v. Taft Friday 50th St. LLC
United States District Court, Southern District of New York
Plaintiff claims food poisoning after dining at TGIF but failed to provide medical proof of causation establishing she actually suffered from a foodborne illness.

While dining at TGIF, plaintiff ate an appetizer and a chicken dish.  Upon returning to her hotel, plaintiff became very ill and required hospitalization.  Based on expert testimony, the court found that there was no evidence that the source of plaintiff’s illness was food poisoning.  Defendant’s experts established that the onset and duration of plaintiff’s symptoms were inconsistent with a foodborne illness related to what the plaintiff ate at the restaurant.  It was noted that courts routinely grant summary judgment to defendants in suits alleging food poisoning where the plaintiff fails to provide medical proof linking the illness to the consumed meal.  While the plaintiff may rely on circumstantial evidence to prove her case, the circumstances must be such as to lead to the logical inference or conclusion that the food allegedly eaten by the plaintiff was tainted.

2/5/2020           Puello v. Jetro Cash and Carry Enterprises
United States District Court, Southern District of New York
Open and obvious defense does not save the day for defendant whose summary judgment motion was denied.

While pushing a large dolly, Plaintiff tripped over a box.  The box was knee high and three feet wide, and protruded approximately two to three feet into the walkway from shelving on the right side of the walkway. The box did not appear broken in any way, crushed or dirty at the time of the accident. Plaintiff’s companion asserts that “[a]pproximately 2 to 3 minutes before Plaintiff’s accident, he observed two people wearing Jetro shirts, handling boxes in the immediate area of Plaintiff’s accident, including the box that Plaintiff tripped over.” Plaintiff does not know how long the box had been placed there prior to the accident, or how it came to be there.  Defendant argued that the box over which Plaintiff tripped was open and obvious because the record shows that nothing obstructed Plaintiff’s view of the box on the walkway.  Plaintiff on the other hand testified that immediately before the incident, he was navigating around boxes stacked on a pallet. The record does not indicate the width of the pallet, but Plaintiff described it as “huge.” Furthermore, the walkway was only four or five feet wide. When another customer and small children walked toward him from the opposite direction, Plaintiff had to focus on navigating around them, given the narrow width of the walkway. Plaintiff also testified that he did not in fact see the boxes on the floor. In light of these facts suggesting Plaintiff was distracted and his view obstructed, the court concluded the box was not necessarily open and obvious to a reasonable person.  The court further ruled there is a dispute of fact as to the conditions in the store when the incident occurred. 
The court also ruled a reasonable jury could find that Defendant created the condition based on an affidavit stating Defendant’s employees were handling boxes in the immediate area of Plaintiff’s accident, including the box over which Plaintiff tripped, just minutes before the accident.  A reasonable jury could also find that Defendant had actual or constructive notice of the condition and failed to correct it. According to Defendant, no employees saw any boxes on the ground on the day in question. Furthermore, the employees did regular inspections of the store and did not see boxes during these inspections, and therefore had no notice of boxes in the walkway. Plaintiff testified, to the contrary, that ten or fifteen boxes were sitting on the walkway floor.  Plaintiff’s companion also asserts that he observed two people wearing Jetro shirts, handling boxes in the immediate area of the accident, including the box that Plaintiff tripped over, minutes before the accident. Although Defendant’s Assistant Branch Manager testified that the management team did safety walks three times per day, and a store employee testified that he did not see boxes on the walkway floor in the area where Plaintiff tripped on the day of the accident, neither of these witnesses testified when they had last been near or inspected the walkway on the day in question.

2/7/2020           Glosek v. Bella Pizza
Fourth Department, Supreme Court
Appellate Court reversed Supreme Court’s denial of summary judgment motion.

Plaintiff tripped and fell on a rug while walking through a restaurant owned and operated by defendant. The Appellate Court reversed the order of the Supreme Court, granted the motion and dismissed the complaint. The Court noted that "although the issue whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide . . . , summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous.”  Here, defendant established its entitlement to judgment as a matter of law by submitting evidence that the placement of the rug in the restaurant did not constitute a dangerous condition, and in opposition plaintiff failed to raise a triable issue of fact


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

Greetings from February.  The last couple of months have been busy ones – at the beginning of December my calendar showed six jury trials between January 6 and mid-March, plus another couple in April and May for good measure. As I write this, the count is two adjournments by the court, three settlements (one the afternoon before jury selection on what would have been a doctor heavy 8-9 day trial) and one verdict.  The last case will definitely pick in two weeks – we have an agreement on some issues and the jury will get the rest.  The cases were spread across the state – two in Niagara County and one each in Erie, Genesee, Tompkins, Oneida and Washington Counties.  A quick look at other calendars across our litigation department shows some very similarly busy (happily, I might add) lawyers.  Keep them coming – we have trial bags and love all parts of the Empire State.    
My musical wanderings turned very local in the last month.  My senior in high school son (“don’t worry, there’s no senior coast”) is writing a research paper examining the local live music scene – what makes a good scene, what is going on here and how have the internet and technology impacted that.  We’ve been identifying who would be good people to talk to – a rundown of local clubs, record stores, promotors, bands, etc. from the last 30 years or so, which is great since I now get to claim that all those nights in raucous dive bars and clubs with a beer in my hand were research.  RIP the Continental, Icon, New World Records, Home of the Hits and a bunch more. 
Regular readers of Hurwitz & Fine’s newsletters are familiar with the tagline “Got a situation? We love situations”.  Originated by the esteemed Dan Kohane, editor extraordinaire of H&F’s Coverage Pointers and my vote as the living embodiment of Will Rogers’ “I never met a man (or woman) I didn’t like”, that phrase is our invitation to readers to contact us with questions that come up in their work, regardless of whether that question pertains to a case Hurwitz & Fine is working or if the caller is even a client.  Sometimes a phone call answers the question, sometimes a little more is necessary.  I took one of those calls this week and thought I’d share the situation and our response.   Is it earth shattering?  No.  But hopefully it helped the caller better understand his case and make sure the insured was protected and the file in order.

Question:  Is the emergency doctrine or something similar available as an affirmative defense where the accident was caused by a driver suffering a medical emergency?

  • General Rule:  A driver suffering an unforeseen, sudden medical emergency that results in an accident is not negligent.  Karl v, Terbush, 63 A.D.3d 135, 881 N.Y.S.2d 207 (3rd Dept. 2009): De Merlen v. Karpf, 147 A.D.3d 1008, 47 N.Y.S.2d 134 (2nd. Dept. 2017);
  • Foreseeability: Because he had previously been diagnosed (and treated) for diabetes, driver did not meet his burden on motion to establish that his medical emergency (a hypoglycemia induced seizure) was unforeseeable.   Ghaffar v. Foster, 170 A.D.3d 674, 93 N.Y.S.3d 593 (2nd Dept. 2019).
  • Foreseeability: Foreseeability of driver's loss of consciousness immediately prior to the collision a questions of fact where driver testified he had episodes of lightheadedness, dizziness and weakness, increasing in frequency for at least a month before the accident and he had an episode of weakness on the morning of the accident. Karl v, Terbush, 63 A.D.3d 135, 881 N.Y.S.2d 207 (3rd Dept. 2009)
  • Proof:  That driver suffered an acute stroke was established through deposition testimony, medical records and expert testimony (i.e., a physician).  De Merlen v. Karpf, 147 A.D.3d 1008, 47 N.Y.S.2d 134 (2nd. Dept. 2017)
  • Proof:  “The defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, because they did not come forward with competent or expert medical evidence to establish the existence of the claimed medical emergency and its unforeseeable nature.”   Serpas v. Bell, 117 A.D.3d 712, 985 N.Y.S.2d 288 (2nd Dept. 2014).

And on to the cases.  A look at the jurisdictional nature of General Municipal Law requirements for suits against municipalities and a pair of prior written notice opinions. 
Until next month.   TCB
January 6, 2020         McVea v. Honsaker, County of Orange, et al.
Supreme Court, Orange County
Dismissal for lack of jurisdiction and failure to state a cause of action warranted where plaintiff failed to comply with General Municipal Law requirements for commencing an action.
Plaintiff was allegedly injured in a motor vehicle accident involving her car and one operated by a Sheriff’s Deputy.   Nine months after the accident, the trial court granted her permission to file a late notice of claim, deeming her Notice of Claim served on the date the order was executed, which fell 25 days before the one-year anniversary of the crash.  21 days later and 4 days before the one-year anniversary of the crash, plaintiff filed her summons and complaint.
General Municipal Law §50-I’s requires a plaintiff both wait at least 30 days after service of the notice of claim before commencing an action and state in his/her complaint that (1) the notice of claim was timely filed and (2) that the required 30 days has elapsed.  These requirements are jurisdictional predicates, leading the defendant to promptly file a motion to dismiss on the grounds that the court lacked jurisdiction over the matter and that the summons and complaint failed to state a cause of action.
Plaintiff argued her claim was governed by a one-year statute of limitation (CPLR 215), leaving her no chance but to file before the 30 days had passed. Because the claim was in fact governed by a three-year statute of limitations, the court dismissed, holding the failure to comply with General Municipal Law §50-I meant the court had no jurisdiction over the case.
Note 1:   This case is not over - plaintiff filed a Notice of Appeal on January 24, 2020;
Note 2:   A one-year statute of limitations would not require plaintiff’s filing before the 30 days elapsed. – case law holds the order allowing the late filing also served to toll her time period to serve the summons and complaint, including the 30-day window at issue here;
Note 3:   The action against the sheriff’s deputy, a government employee, is subject to the “normal” three statute of limitations for a negligence action because the Deputy’s duty to use reasonable care in operating his vehicle is not one imposed upon him by nature of his job, but rather the same duty any operator is subject to.
January 7, 2020         Esponda v. Ramos-Ciprian
Appellate Division, First Department
Finding that adjoining property owner may be at fault for allegedly defective sidewalk was not inconsistent with order granting City summary judgment for lack of prior written notice.
Plaintiff sued both the City and the adjoining property owner after she tripped and fell on an allegedly hazardous sidewalk   Plaintiff moved for summary judgement against the owner only.  The City then cross moved for summary judgment.  Both the plaintiff and the City argued that the adjoining property owner, under City code, was responsible for maintaining the sidewalk.  The City also moved on the basis that even if responsible, it had not received the required prior written notice of any defect in the area.   Plaintiff did not oppose the City’s motion.  On the appeal, the Appellate Division found a question of fact on whether provision in the City code exempted the owner from the obligation to maintain the sidewalk.  Plaintiff did not appeal the order granting summary judgement to the City.

Another round of motions lead to this appeal, with plaintiff arguing it was “logically inconsistent” for there to be a question about whether the property owner was responsible for maintaining the sidewalk (if they were not, the duty remained with the City) and to grant the City summary judgment.  This was rejected – the basis for dismissing the claim against the City was not dependent on a determination of who was responsible for maintaining the sidewalk (or even the presence of the condition).  Even if that duty fell to the City, the prior written notice requirement had not been met.

February 5, 2020       Weinstein v. County of Nassau, Town of Hempstead, et al.
Appellate Division, Second Department
Prima facie proof that a prior written notice requirement was not met must comport with the statute as written.
Plaintiff allegedly fell because of a hole located between the edge of two roadways, one maintained by the City of Long Beach, the other by the Town of Hempstead.  With discovery complete, both municipalities moved for summary judgment, each pointing to the lack of prior written notice required by their respective municipal code and that they had not created the alleged hazard through “an affirmative act of negligence.”
Only the City’s motion was granted.  The Town’s problem?  Its motion papers did not comport with its prior written notice statute. In support of its motion, the town provided an affidavit from the Highway Department, but not from the Town Clerk – the prior written notice statute provided notice could be made to either depertment. The lack of an affidavit from the Town Clerk required the court to find Town had not met its burden of proof on the motion.  That failure also meant the Court did not consider the sufficiency of the plaintiff’s response (i.e. whether plaintiff had any proof that there was the required notice or that the Town had created the condition).
If this seems oddly familiar, the Appellate Division, Second Department case Otto v. Miller, et al.reported in my December 2019 column, addresses the same issue, with the same result.


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

Happy February everyone, and if you read no further, please heed my most prized advice of the day.  This is Valentine’s week, so do not forget to get a little something for that special person in your life.  My wife is quite fond of truffles, so somebody, please, send me a reminder.  I’ll pay you back with some free legal advice.

We have two cases this month which address issues we see quite frequently. The first being inflammatory remarks by plaintiff’s counsel, appealing to the juror’s emotions against the “evil” corporate defendant.  Kudos to defense counsel for preserving objections during closing arguments (which can be difficult to accomplish), and kudos to the Second Department for ordering a new trial.  The cards are stacked against nursing home defendants already, so we need to fight just to keep a level playing field. Our caregivers and medical professionals deserve the same zealous representation.

Our second case deals with the different standards for proving a violation of Public Health Law 2801-d versus a claim for negligence or malpractice. There are different elements, and more importantly, different remedies, with a PHL violation potentially subjecting the defendant to attorneys’ fees and punitive damages.   Negligence is not per se a violation of the Public Health Law, and vice versa.  Plaintiff’s attorneys are often quite successful in comingling the two, but the distinction is an important one and can drastically impact the financial outcome of the case.  

January 22, 2020         Nieves v Clove Lakes Health Care & Rehabilitation, Inc.
Appellate Division, Second Department
Inflammatory Closing Argument Nets New Trial
In an action to recover damages for an alleged wrongful death resulting from a fall at a skilled nursing facility, the jury found the defendant guilty and awarded plaintiff a sum of over $1.1 Million.  Defendant appealed on the basis of plaintiff’s counsel’s inflammatory rhetoric in closing argument. The remarks in question improperly appealed to the passion of the jurors in characterizations of the corporate defendant, accused the defendant of willfully withholding evidence, accused the defendant’s witnesses of having changed their testimony after deposition “because they saw that they couldn’t win” (even though their deposition testimony was not in evidence), and also improperly argued that the defendant failed to call certain witnesses who were not under the defendant’s control. The Appellate Court held that the comments were so unduly prejudicial as to have deprived the defendant of a fair trial.

January 22, 2020         Schwartz v Partridge
Appellate Division, Second Department
Differentiating the Basis for Liability Between Malpractice and Public Health Law 2801-d Claims
Here, defendant appealed the Supreme Court’s denial of their motion for summary judgment in a claim against a rehab facility in which it was alleged that inadequate medical care led to plaintiff’s injuries and death.  The Second Department reversed, finding the plaintiff’s expert offered only conclusory allegations based on facts that were contradicted or unsupported by the record. In its decision, the Appellate Court however made note of the difference between claims for malpractice and claims made under Public Health Law 2801-d. The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries. However, the basis for liability under Public Health Law 2801-d is neither a deviation from accepted standards of medical practice nor breach of duty of care. Rather, it contemplates the injury to the plaintiff caused by the deprivation of a right conferred by contract, statute, regulations, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. As claims under PHL 2801-d can subject the defendant to penalties not available for a malpractice or negligence claim (such as attorney’ fees and codified punitive damages), it is important to defend these claims by independently by addressing the elements of each claim.


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

As some of you may know, I spent January at home with my five-month-old daughter, Josie. Having just returned to the office, a lot of people have asked me if I found 24/7 childcare exhausting--all I can say is that I’m very lucky to have a baby who LOVES to sleep and, more importantly, that I’m generally not a person who is capable of sitting still.  I spent a lot of the month reading for fun (AMAZING), baking bread (TIME CONSUMING), ordering things on Amazon (EXPENSIVE), and re-organizing different closets in my house (BORING). 
And so, I return to work (somewhat) refreshed and ready to get back to the grind.  With that said, this month I bring you two pieces of proposed legislation.  Both bills are related to the Child Victims Act and both are specifically designed to allow for the continued filing and litigation of civil claims.
In early January, Senator Brad Hoylman filed a bill to extend the CVA’s “look-back” window to August 14, 2021.  Under the current version of the law, people older than age 55 (the new statute of limitations set by the CVA) and litigants whose prior lawsuits were dismissed for a failure to comply with the statute of limitations and/or the notice of claim requirements of the General Municipal Law were given until August 14, 2020 to bring civil lawsuits for childhood sexual abuse. Between the window’s opening this past August and January 2020, more than 1,300 lawsuits were filed across New York State. Advocates, including Senator Hoylman say that more time is needed to allow victims to come forward and take legal action.

Sponsored by Senator Gaughran, this Bill is intended to set aside money to assist not-for-profit entities litigating cases on behalf of victims of childhood sexual abuse. According to Senator Gaughran, the exorbitant costs of litigation have led many private civil practitioners to reject the cases of would-be litigants. The proposed legislation not only establishes the Child Victim Foundation Fund, but also allows business corporations to contribute/donate their tax refunds to the Fund and redirects fines collected from people convicted of certain offenses against children to the Fund.


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

Greetings Subscribers!
Super Bowl LIV has come and gone, with the Kansas City Chiefs mounting an epic fourth quarter come-back! As I reflect on this past season, although I thought the 49ers would be victorious, overall, it was a great season and the future looks bright for the Buffalo Bills. Now we switch gears to college basketball!
This month, I report on two discovery cases and a topic I thoroughly enjoy: contractual indemnification. We begin every analysis the same way; by looking at the relevant provision(s) because “a party’s right to contractual indemnification depends upon the specific language of the relevant contract” and such provision(s) “must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed.” If you are interested in learning more about contractual indemnification, feel free to send me an email or try to stump me with your challenging issue and we can work through it together.
Until next issue…
01/08/20          Marino v Armogan
Appellate Division, Second Department
Plaintiff’s failure to provide court-ordered discovery precludes her from offering medical evidence, which is a necessary element of her prima facie case, thereby warranting dismissal of the complaint.
After plaintiff’s counsel failed to respond to initial discovery demands, defendants moved to dismiss the complaint. The parties entered into a stipulation wherein plaintiff agreed to provide the outstanding authorizations within thirty days. When discovery was not provided, another motion was filed, resulting in another so-ordered stipulation whereby plaintiff agreed to respond to the outstanding demands within thirty days or plaintiff would be precluded from offering, among other things, medical evidence at trial.
When defense counsel moved to enforce the second stipulation, pursuant to CPLR § 3126, by moving for summary judgment seeking dismissal of the complaint, the trial court granted the motion as plaintiff was precluded from presenting evidence establishing her prima facie case.
The First Department affirmed; finding the trial court providently exercised its discretion in determining that plaintiff’s conduct in failing to produce the requisite discovery was willful and contumacious because plaintiff failed to offer an adequate explanation for her persistent failure to comply with court-ordered discovery.  

01/22/20          Hanna v Milazzo
Appellate Division, Second Department
Contractual indemnification claim by the property owner against the window store owner based on a lease dismissed where plaintiff’s slip and fall did not occur in an area under which snow removal obligations were required to be performed by the window store owner.
Plaintiff allegedly slipped and fell on snow and ice on the sidewalk abutting a mixed-use residential and commercial building owned by the Milazzo defendants, who asserted a cross-claim for contractual indemnification against Eagle and EAW based on the failure to clear the sidewalk in accordance with the terms of the lease.
The trial court granted EAW’s motion for summary judgment dismissing the Milazzo’s defendants’ cross-motion for contractual indemnity based on the lease, which limited EAW’s snow removal obligations to the sidewalk abutting the “demised premises,” described under the lease as the store from which EAW operated a sales office for window installation projects.
The First Department affirmed; finding the contractual indemnity language of the lease was limited to claims for injuries occurring “on the sidewalk adjourning the demised premises.” As plaintiff’s uncontroverted deposition testimony demonstrated that he slipped and fell on the sidewalk outside the Milazzo defendants’ hair solon, and not the sidewalk abutting EAW’s window store, the Court held EAW established that any contractual indemnity obligation was not triggered under the lease.

01/30/20          Alliance for Progress, Inc. v Blondelll Realty Corp.
Appellate Division, First Department
Defendant entitled to vacatur of default order by demonstrating a reasonable excuse of law office failure, a meritorious defense to the action, and the lack of prejudice to plaintiff from the vacatur.
The trial court granted defendant’s motion to vacate an order entered on default granting plaintiff’s motion to strike the answer. The First Department unanimously reversed; finding defendant demonstrated a reasonable excuse for its default and a meritorious defense to the action by way of an affidavit contending that it did not receive adequate notice of the oral argument. The Court affirmed the trial court’s determination that defendant established a reasonable excuse of law office failure for its default, especially given the absence of any willful or contumacious condition, and the absence of prejudice to plaintiff from vacatur of the default.


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

Greeting Readers:
The weather in Western New York has finally turned for the worse and we are currently blanketed in a coating of Lake Erie’s finest snow.  As such, plaintiff attorneys in the area are surely hoping that many of my fellow Buffalonians begin their annual tradition of slipping and fall on ice.  As the inevitable stream of broken ankles and elbows begin to occur, we are sure to see an uptake in claims of negligent maintenance of one’s property.  Therefore, hopefully the cases that I will continue to highlight can be of use in defending against these claims.
This month I highlight a few cases from the Appellate Division that underscore a few important concepts to keep in mind as these slip-and-fall claims begin to accrue.  The first two cases discussed below deal the concept of constructive notice.  In slip-and-fall cases involving snow and ice, the issue of constructive notice is typically the key issue litigated.  These cases showcase situations in which the landowner defendant failed to proffer sufficient evidence to establish a lack of constructive notice prior to the injured party’s fall.  Hopefully, a review of both cases can help you realize what types of evidence that you need in order to prevail on summary motions that are based on a lack of constructive notice.  Hint: you need specifics!
Lastly, I highlight a case out of the First Department that deals with the “Espinal Doctrine.”  The Espinal Doctrine is a legal concept in New York State that deals with the circumstances under which a contractual agreement between a property owner and a vendor can act to impose duty upon that vendor.  While the case discussed this month deals with the duty, or lack thereof, that an elevator maintenance company had to an individual, the Espinal Doctrine was born out of a case involving a snowplow contractor and thus regularly applies to slip-and-fall cases involving snow and ice falls.

December 4, 2019                  Coelho v. S&A Neocronon, Inc.
Appellate Division, Second Department
Second Department refuses to grant summary judgment to a defendant landowner because the landowner failed to establish that it did not have constructive notice of the presence of snow and ice on its property prior to the plaintiff’s fall.
Plaintiff was injured when he slipped and fell on ice located on a sidewalk of a property owned by the defendant.  Defendant moved for summary judgment on the basis that it allegedly lacked constructive notice of the subject patch of ice prior to plaintiff’s fall.
The Court discussed the longstanding standard for imposing liablity on a landowner for a slip-and-fall on ice on its property.  Specifically, a landowner can be held liable for such an incident if it had either actual or constructive notice of the existence of the dangerous slipping hazard prior to the fall.  While actual notice speaks for itself, these cases typically focus more on the concept of whether or not the landowner had constructive notice.  In order to prevail on such a motion, a defendant “must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.”
In denying defendant’s appeal, the Court held that the defendant failed to offer sufficient evidence that it did not have constructive notice of the ice for a sufficient length of time to discover and remedy the same.  Specifically, the only evidence submitted in support of the defendant’s position was the plaintiff’s testimony that he did not notice the ice when he arrived at work approximately three hours prior to his fall.  Defendant offered no evidence that the subject area was inspected and/or cleared in the interim.  The lack of any evidence of any action taken by defendant to inspect and/or clear the area during that three-hour period precluded defendant from arguing that it lacked constructive notice of the same.

December 18, 2019                Carro v. Colonial Woods Condominiums
Appellate Division, Second Department
Second Department overturns trial court’s grant of summary judgment to a landowner because the landowner failed to establish that it lacked constructive notice of the dangerous icy condition prior to plaintiff’s fall.
Plaintiff was injured when he slipped and fell on ice located on a walkway abutting his condominium unit.  He brought suit against the owner of the walkway.  The owner moved for summary judgment on the basis of a lack of notice of the icy condition prior to plaintiff’s fall.
Just as in the case highlighted above, the Court reiterated the standard for imposing duty on a landowner for a slip-and-fall on the property.  Here, the Court determined that the defendant failed to meet its burden of showing that it lacked constructive notice of the presence of the ice on its property prior to the fall.  Here, the defendant offered only testimony from the president of its board as to the general inspection procedures of the defendant.  It failed to offer specific evidence as to when the subject area was last inspected and/or cleared prior to the fall.  As such, the Second Department determined that the defendant failed to meet its burden of establishing that it lacked constructive notice.
December 12, 2019                Baez v. 1749 Grand Concourse LLC
Appellate Division, First Department
First Department applies the “Espinal Doctrine” to absolve an elevator maintenance company of any liability for an incident because the company did not owe a duty to the injured party.
Deceased plaintiff was killed when he fell down an elevator shaft and died.  Decedent’s estate brought suit against the entities that owned the building that housed the elevator, the local municipal inspection company, as well as the maintenance company hired by the building owners to service the subject elevator.  The maintenance company, Dunwell, moved for summary judgment on the basis of the “Espinal Doctrine.”
The Court ultimately agreed with Dunwell and overturned the trial court’s denial of Dunwell’s motion.  Specifically, the First Department held that Dunwell did not owe a duty to the decedent and thus could not be found liable to the same.  This was because none of the three established situations enumerated in the ‘Espinal Doctrine” applied here.  There was no evidence that Dunwell did anything to affirmatively create the hazard that ultimately caused the elevator’s failure.  There also was no evidence that the decedent detrimentally relied on Dunwell’s agreement to service the elevator.
Most importantly, the Court held that the agreement between Dunwell and the building owners was “not comprehensive and exclusive” enough as to completely displace the building owners’ obligation to maintain the elevator in a safe condition.  The evidence established that Dunwell did satisfy its contractual obligations by performing routine monthly checks of the elevator, as well as submitting various proposals to replace different aspects thereof.  As such, the “Espinal Doctrine” did not apply and the Court determined that Dunwell did not owe the decedent a duty and could not be found liable to decedent in tort.


Jody E. Briandi
[email protected]

Todd C. Bushway
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V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
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Marc A. Schulz
[email protected]

Brian M. Webb
[email protected]

Rob E. Hewitt
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Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]

V. Christopher Potenza
[email protected]


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