Premises Pointers - Volume IV, No. 1


Premises Pointers
Watch your step!

Volume IV, No. 1
Thursday, June 11, 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



Just when we’ve all learned how to work from home and manage our practices remotely, we are now embarking on the next challenge.  Return to work plans (or in our case, return to the office since we never stopped working) are in full swing throughout New York State and beyond.  Since our last issue in May, offices have opened their doors and Court staff are steadily returning.  In-person depositions are being scheduled and I actually received a notice from the Appellate Division scheduling an in-person oral argument in September. All good signs. We have also been able to file new actions, motions and other pleadings again on NYSCEF.  However, the tolling period for Statutes of Limitations is until July 6th. This past Saturday, Governor Cuomo signed Executive Order 202.38 to continue the modification and suspension of laws relating to the disaster emergency. In addition to several other provisions addressing the COVID-19 outbreak, the Executive Order extends the provisions tolling the Statute of Limitations until July 6, 2020.  Please remember we have created the COVID-19 Legal Response Team, which is an interdisciplinary model comprised of firm lawyers from various practice groups designed to meet all COVID-19 legal needs, and all Firm Legal Updates can be found at our COVID-19 Resource Center

I am also happy to announce that attorney Lani J. Brandon has joined our firm and will be working on the transportation negligence and premises liability practice group teams.  Lani assisted me with my column this month and you can expect to be hearing more from Lani in the coming months.
Even though we are beginning the process of transitioning back to the office, it’s not without a keen awareness that things will not be the same.  In addition to the changes brought on by COVID, there has been a shift in this country and a move toward eliminating racism and injustice. Hurwitz & Fine, P.C. continues to be committed to diversity, equality, and justice in the legal system, in the workplace, and in our community and we are looking forward to positive change on all fronts.
Stay well.


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.

Employment & Business Litigation Pointers:  This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] if you would like to subscribe.

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]

5/18/20            Breitenbucher v. Walmart Stores, Inc.
United States District Court, Eastern District of New York
Walmart awarded summary judgment on all claims.

Plaintiff Gabrielle Breitenbucher alleges she was injured as the result of a fall inside Walmart. While walking down an aisle displaying bicycles, she slipped and fell, landing on her left knee. After recovering from the fall, Plaintiff discovered that she had slipped on a green and white plastic vinyl tag, also known as a spec sheet. The plaintiff commenced suit against Walmart in the Supreme Court of New York, Suffolk County, asserting claims of negligence and private and public nuisance. Walmart removed the case to the United States District Court, Eastern District of New York, on the basis of diversity jurisdiction.
Defendant Walmart filed a motion for summary judgment asserting that the evidence does not support liability for negligence on the basis that nothing in the record suggests that it created or had actual notice of a dangerous condition. Defendant also contended that the plaintiff could not prevail on a theory of constructive notice because she had not demonstrated that the hazard was visible and apparent, nor had she shown a recurring dangerous condition.
On the issue of the creation of a hazard, the Court found that the plaintiff had failed to establish that Walmart created the alleged hazard. The Court noted that there was no evidence that an employee had removed the spec sheet or otherwise caused it to be on the floor. The Court further noted that there was testimony from a former assistant manager, who was responsible for the bicycle department at the time of the accident, supporting the equally likely alternative that a customer may have removed the spec sheet. Citing the fact that the record was devoid of any evidence regarding how the spec sheet came to be on the floor, the Court held that no reasonable juror could find that Walmart affirmatively created a dangerous condition. Turning then to the issue of actual notice, the Court found that the plaintiff had failed to produce any evidence that Walmart was aware of any danger posed by spec sheets and therefore, that Plaintiff had failed to raise a triable issue as to whether Walmart had actual notice.
Next, the Court turned to constructive notice, stating that a plaintiff may establish constructive notice using two distinct theories of liability. The first theory is by showing that 1) the defect was visible and apparent, and 2) that the defect existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. The second theory is that a plaintiff may show that the defendant was on constructive notice because it had knowledge of a dangerous recurring condition. Addressing the first theory, the Court found that Plaintiff had not presented facts that would allow a reasonable jury to find that the spec sheet was visible and apparent. The Court noted that, in her motion papers, the plaintiff contended that the “thinness” of the spec sheet “would not have permitted plaintiff to have known it was there,” but in the next sentence, the plaintiff argued that “[t]he color of the tag would have enabled a store employee from [sic] seeing it, had they been actively monitoring what was happening in the department.” Plaintiff herself had conceded she did not see the spec sheet before she fell, despite testifying that she was “aware” as she was walking and had an unobstructed view of the ground. The Court then turned to the issue of the length of time the hazard existed, noting that Courts accept circumstantial evidence suggesting how long the hazard may have existed. The plaintiff presented no evidence, circumstantial or otherwise, suggesting that the spec sheet was on the floor for a sufficient amount of time for an employee to discover it. In her papers, the plaintiff cited to Rose v. Da Ecrib USA, 259 A.D.2d 258 (1st Dep't 1999), to support the proposition that constructive notice has been inferred where there is evidence that employees were in the immediate vicinity of the dangerous condition and could easily have noticed and removed it. However, the Court pointed out that Rose held that notice could be inferred from proximity in combination with other evidence that the hazard was present for an extended period of time, and that other courts have recognized that holding. Plaintiff Breitenbucher presented no evidence from which a jury could reasonably infer that the spec sheet was present for an appreciable length of time. The Court then found that, even assuming that the spec sheet was visible and apparent, with no evidence regarding duration, the plaintiff’s theory of constructive notice fails.
The Court next addressed the second theory of liability, that a plaintiff may establish constructive notice by showing that the defendant had knowledge of an ongoing and recurring dangerous condition. The  plaintiff’s argument that her injury was caused by a recurring dangerous condition was reliant on the former assistant manager’s testimony that he had seen tags or spec sheets on the floor “rarely.” Plaintiff argued that “rarely” implies more than once. The Court found that this testimony was insufficient to establish that Walmart was on notice that injuries caused by spec sheets were foreseeable, or that they created a dangerous condition that should have been remedied. The record showed that Walmart had not received a single report of a similar accident in the three years prior to the plaintiff’s fall.
Finding that there was no genuine issue of material fact concerning whether Walmart created the alleged hazard, whether it had actual notice, and whether it was on constructive notice, the Court granted Walmart’s motion for summary judgment with respect to the negligence claim.
With regard to the plaintiff’s public and private nuisance claim, the plaintiff argued that the spec sheet constituted a “trap” amounting to a private and public nuisance. Under New York law, the elements of a public and private nuisance are very similar, in that both require intentional or negligent conduct on the part of a defendant. The plaintiff did not allege that Walmart intentionally caused her to fall, and courts have held that, where the condition alleged to constitute a nuisance has its origin in negligence, the nuisance claim must fail in the absence of proof of negligence. Noting that the plaintiff’s nuisance claim sounds in negligence, the Court dismissed it as duplicative and because she failed to establish a public or private nuisance as a matter of law.


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

Here in Western New York (as I suspect elsewhere, at least in New York), the full slate of outdoor concerts, festivals and fairs has been swept away.  For those of you who have not spent any time in WNY in the summer months, we view these public events as a god given right, even if there are so many we often have to choose between multiple options on any given date.  The list includes church picnics and lawn fetes (I’m not sure what the difference is – the parish I grew up in called their 3-day event a picnic and is famous for its clam chowder, homemade pies with dinner and beer tent), volunteer fire department picnics, drive up barbecues (Chiavetta’s chicken is divine), ethnic fests (Greek, Irish, Italian, Asian, African, etc.), food fests (wings anyone?), art festivals, food truck nights (Tuesday nights at Larkinville has 30+ trucks and supposedly a waiting list of trucks looking for a spot), fairs big and small (my nephews are very disappointed they will not be able to show their hogs at the Wyoming County Fair, especially after top 3 finishes last year) and concert series galore.  The absence of these events this summer hit home in my neighborhood in the past two weeks – I live 2 blocks from a longstanding Greek orthodox church and their Greek festival, traditionally held on the last weekend in May or first weekend in June, is considered the unofficial start to the summer season.  No Greek folk music in the air, no souvlaki on a stick, heaping plates of pastitsio, rice pudding or direct from the fryer, sticky loukoumades for the short walk home. 

One positive to the suddenly empty public calendar and the continuing need to adhere to social distancing guidelines is the relatively uncomplicated activities that are left – nothing wrong with a little family time in the backyard, beer in hand, tunes playing, something sizzling on the grill and a good book or inter-generational and slightly competitive game of cornhole.  For those of you wondering, the over 50 crowd has been dominant.  Just dominant.  My kids are 18 and 20 – much to their chagrin I am sure, I will spend more time with them this summer than one would have thought just 6 months ago.  That is a good thing.  A very good thing.

Musically speaking, some prime concerts this spring and early summer vanished – I had tickets to see a host of bands missing from my list – Bad Religion, Bouncing Souls, NOFX, Alkaline Trio, Pkew Pkew Pkew, Rancid, Brian Fallon and Justin Townes Earle, Wilco and Slater-Kinney were on the calendar, as well as some long time favorites – Jason Isbell, Drop Kick Murphys among those. 

Working from home has meshed well with working through a lot of stuff I haven’t listened to in a while, especially some live recordings.  Getting more than one play are shows from the Clash, Talking Heads, the Replacements, the Old ’97’s and the Ramones.  Drop me a note if you would like some recommendations.  If you are looking for something new, check out new releases from Jason Isbell, Jeff Rosenstock, Steve Earle and the Bombpops.  Good stuff. 

As you would expect, the release of new decisions has slowed to a trickle because of the court closures, although that is starting to change.  I was able to find two relevant cases – one having to do with a negligent supervision claim against a school district, the other looking at a negligent supervision claim against an injured child’s parents, brought as a third party action by the party sued by the parents on behalf of the child.

Stay safe. 

May 20, 2020 C.Q. v. Farmingdale Union Free School District, et al.
Appellate Division, Second Department
Questions of fact preclude summary judgment in school supervision case.  Using the e-file system to look at the papers below can give better understanding of the case and the appellate court’s decision.
Plaintiff Christopher was a 6-year-old kindergarten student who was injured when he fell or jumped from a rock wall type climbing structure that was part of a larger piece of playground equipment during a combined lunch/recess period at school.  His parents alleged the accident occurred because of a lack of adequate supervision during the lunch/recess period. After discovery was complete, the district moved for summary judgment.

This case demonstrates two things – first, using the e-filing system to look at the papers filed at the Supreme Court level.  Those filings almost always contain a full complement of the underlying facts and proceedings, thereby allowing a better understanding of an often very short or conclusory appellate decision.  The appellate decision in this case contains little information about the underlying facts case, followed by a one sentence conclusory statement that affirms the decision below.  The second is that by limiting its decision to a conclusory statement, the appellate court can strip the decision of any precedential value or guidance to practitioners about the legal issues underpinning the case.

The papers filed by the district and plaintiff on the motion below show there were 80-90 kindergarten students at the plaintiff’s school, spread across 5 classes.  All the kindergarten students ate lunch together, which included 20 minutes to eat and another 20 minutes for recess.   Six teachers and aides oversaw the kindergartners during the lunch period.  For outdoor recess, the kindergarten students were restricted to two areas – a paved area and a large playground apparatus that included the rock wall.  Discovery included the testimony of only one of the adults supervising the kindergartners, an aide.  The aide testified that she saw the plaintiff fall out of the corner of her eye.  Surveillance video also captured the incident.

School district moved for summary judgment, arguing that allowing kindergartners to use the rock wall was not inherently dangerous and that the accident happened so quickly that no amount of supervision could have prevented it.  In response, plaintiff pointed to the aide’s testimony about where the other adults supervising the children were located, broke down what was depicted in the surveillance video and submitted an expert affidavit that concluded the supervision was inadequate.

The trial court found that the district met its prima facie burden on its motion but that the plaintiff had raised questions of fact regarding causation, the span of time over which the accident occurred and adequacy of the supervision.  Without explanation, the appellate court did more than simply affirm the trial court’s decision – it determined that the school district failed to meet its burden establishing there was adequate supervision.  Without that explanation, the precedential and instructional value of the case is limited – there is no way of knowing what about the district’s motion was lacking.
May 13, 2020             Martinez v. KAZ USA, Incorporated, et al.
Appellate Division, Second Department
New York law does not permit a claim against the parents of an injured child for negligent supervision.
The plaintiffs’ 10-month-old daughter was burned when she knocked over a humidifier in use at their apartment.  Plaintiffs’ sued the defendant KAZ USA, the manufacturer and distributor of the humidifier, to recover for their daughter’s injuries.  As part of its response to the lawsuit, KAZ USA brought a third-party claim against the parents, alleging negligent supervision.
On motion after the completion of discovery, the parents moved to dismiss the third-party action for failure to state a cause of action, which was denied.  On appeal, the appellate court reversed, pointing to longstanding New York Court of Appeals case law holding that New York does not recognize an actionable claim against an injured child’s parents for negligent supervision, a decision based upon a policy concern that allowing such a claim could harm the parent child relationship.  The court recognized an exception to this rule – where the parents alleged “conduct implicates a duty owed to the public at large”, an exception it found did not apply to this case. I looked at some of the case law on this issue, and an example of a potential “duty to the public at large” is where a parent is alleged to have negligently entrusted their child with a potentially dangerous item or device.


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

As the events of 2020 play out like an unfinished and forgotten game of Jumanji, the Nursing Home and Assisted Living defense team continues to track the ever-changing field of adult care liability amidst the COVID-19 pandemic. If you haven’t yet signed up for our weekly newsletter (and please do contact us if you would like to be included), this week we look at what the reopening of nursing homes for visitors might look like, and highlight some excellent research regarding the transmission of infections in such facilities.
For this month’s Pointers, however, we steer away from current newsworthy events to bring you two very interesting decisions regarding the foreseeability of subsequent injuries in actions for negligence, and the admissibility of credentialing information for defendant physicians. The issue presented in this first case is one which we very nearly took to trial in a separate matter, whereby the plaintiff attempted to argue that the injuries sustained as a result of the independent negligence of a subsequent facility were a foreseeable consequence of actions taken by our client’s assisted living facility.   We didn’t buy the argument, and the courts don’t seem to either.
May 6, 2020                    Rimma Kaziyeva v. Sandra Majeski et al.
Appellate Division, Second Department
Injuries sustained by plaintiff as a result of a fall at a nursing home in which she was rehabilitating could not be deemed a normal or foreseeable consequence of the negligence of the defendant that caused the injury requiring rehab.
Following a motor vehicle accident in which Plaintiff was struck by Defendant’s vehicle, Plaintiff was hospitalized and then transferred to the facility for rehabilitation. While residing at the nursing home, Plaintiff attempted to use the bathroom on her own despite being specifically instructed not to do so by medical staff and was injured while transferring to her wheelchair. Despite never having attempted these actions on her own, Plaintiff alleged that she did so on this occasion because her calls for assistance had gone unanswered for more than one hour.
The Appellate Court held that the Supreme Court should have granted Defendant’s motion for summary judgment, dismissing from the Complaint the alleged injuries sustained as a result of Plaintiff’s fall above. The Defendant’s established that any negligence on their part with regard to the motor vehicle accident was not a proximate cause of the later fall. Neither the failure of the nursing home to answer Plaintiff’s calls for assistance, nor Plaintiff’s attempts to use a wheelchair without assistance, could be deemed a normal or foreseeable consequence of the situation created by Defendant’s negligence, and Plaintiff failed to raise a triable issue of fact in opposition.
This is a useful case for defending claims in which there are separate injuries at different and subsequent facilities.  Independent negligence of a subsequent facility should break the chain of injury causation, with each facility responsible for its own negligence and injury claim.
May 29, 2020              Lisa Siemanowicz et al. v. Peter Sculco MD et al.
Supreme Court, New York County
Documentation concerning the retention, application for privileges, and credentialing of Defendant physicians was held to be privileged and precluded from disclosure.
In this action for medical malpractice, lack of informed consent, wrongful death and loss of service, Defendants moved for an Order precluding disclosure of personnel files or credentialing files maintained by the Defendants.
Plaintiffs demanded any and all personnel files of the Defendant doctors and any and all documentation concerning the retention, application for privileges, or credentialing at the Defendant hospital. Defendants objected on the grounds that such documentation was confidential, privileged, and irrelevant to the matters at issue, and subsequently filed a preclude per Article 28 of the Public Health Law.
Defendants also submitted an Affidavit of Alfred Pagan, Senior Director of Medical Staff Services at the Defendant hospital, stating that the hospital has a process for confirming the credentials of physicians, granting privileges to these physicians, and performing periodic review of physicians’ qualifications and privileges pursuant to the Public Health Law. Mr. Pagan also verified that the Defendant doctors were granted privileges and that these privileges were reviewed and approved every two years through the re-credentialing process.
The Trial Court held that Defendants had satisfied their burden of asserting privilege and had demonstrated through Mr. Pagan’s Affidavit that the Defendant hospital has a review procedure and that the documents were obtained or maintained in accordance with that procedure. Therefore, the credentialing files maintained were precluded from disclosure, and Defendants’ motion was granted in its entirety.


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

Dear Readers,


Maya Angelou - 1928-2014

Lying, thinking
Last night
How to find my soul a home
Where water is not thirsty
And bread loaf is not stone
I came up with one thing
And I don't believe I'm wrong
That nobody,
But nobody
Can make it out here alone.
Alone, all alone
Nobody, but nobody
Can make it out here alone.
There are some millionaires
With money they can't use
Their wives run round like banshees
Their children sing the blues
They've got expensive doctors
To cure their hearts of stone.
But nobody
No, nobody
Can make it out here alone.
Alone, all alone
Nobody, but nobody
Can make it out here alone.
Now if you listen closely
I'll tell you what I know
Storm clouds are gathering
The wind is gonna blow
The race of man is suffering
And I can hear the moan,
'Cause nobody,
But nobody
Can make it out here alone.
Alone, all alone
Nobody, but nobody
Can make it out here alone.

And without further ado, your legislative update for the month of June.
The Child Victims’ Act Look Back Window Extended Until August 14, 2021.
The Legislature passed a measure that would extend the CVA’s look-back window another year.  The original legislation permitted the filing of claims outside the new statute of limitations (would-be litigants now have until age 55 to file a claim) or that were previously dismissed for non-compliance with the old statute of limitations and/or the General Municipal Law’s Notice of Claim requirements from August 14th, 2019 until August 14, 2020.   Although legislation to extend the look-back window was already pending before the COVID-19 pandemic, the closing of the courts during the health crisis pushed the legislature to act.  On May 27th, both the Senate and Assembly passed S7082/A9036, extending the CVA’s look-back window another year, allowing otherwise expired claims to be filed until August 14, 2021.  The extension will not be official until signed by the Governor. 

Read On For More Legislative Updates


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

Greetings Subscribers!
With NBA and hopefully MLB games on the horizon, we cannot wait until major sports resume next month. Courts in the Western New York area are still mostly focused on essential matters right now although New York State (not including NYC) looks to enter Phase 3 of reopening next week.
This month, I report on the Parkinson case, which reminds us that it is better to serve your discovery late than not at all. I found it interesting that the First Department declined an in-camera review in that case as I doubt that would be the ruling were this case venued in the Fourth Department. I’d be happy to hear your experiences with in-camera reviews or to discuss the differences between the four departments across the State if you’re interested, just send me an email. Until next issue, stay safe and healthy.

06/04/20          Parkinson v Fedex Corp.
Appellate Division, First Department
Plaintiff is not entitled to strike defendant’s answer or to preclude defendants from presenting evidence on liability where the record does not show that defendants’ noncompliance with the court’s prior discovery orders was willful, contumacious or due to bad faith.
The trial court denied plaintiff’s motion, pursuant to CPLR § 3126, to strike the answer or, alternatively, to preclude defendants from presenting evidence on the issue of liability or to compel them to produce responses to their discovery demands. Although defendants’ responses were belated and piecemeal, the First Department unanimously affirmed the trial court decision because the record did not show that defendants’ noncompliance with the trial court’s eight prior discovery orders was willful, contumacious or due to bad faith.
Plaintiff was also not entitled to an unredacted accident report and personnel files of three employees working at the site at the time of plaintiff’s incident because the redacted subsequent remedial measures in the report would not have been admissible in this negligence action and the Court held the exceptions plaintiff argued did not apply. The Court declined an in-camera review as defendants produced the employees’ written accounts of the incident and proof of their completion of a safety training program, and the Court noted the files likely would not contain further information relevant to the issue of defendants’ liability.


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

Greetings Readers:
As we continue to work through the COVID-19 pandemic, the recent events that have taken place in Minneapolis and throughout the country should serve as a reminder to all that life, and the struggles and problems inherent in it, did not cease to exist.  It is just as important now as ever to focus on trying our best to be kind to each other and supportive of other’s views and experiences and I hope that meaningful change can emerge from all of what’s happening.
But I digress, as I assume that readers of this newsletter did not come for commentary on world events, but rather for interesting developments in the wonderful world of premises liability law.  That being said, it has been refreshing to see the New York Courts start to get back up to speed and more operational with every passing week.  In researching cases to highlight, this was the first time since the pandemic began that there seemed to be a “normal,” or at least close to “normal,” amount of cases to browse. 
This month, I highlight three cases out of the Second Department that deal with issues relevant to this column.  The first showcases the importance of pleadings in slip-and-fall cases involving allegations against snowplow contractors.  The plaintiff’s attorney in that case opted for simple boilerplate language in the complaint and bill of particulars and that choice ultimately played a large role in the court awarding summary judgment to the contractor.  The second case is highlighted moreso for the abundance of useful case law contained within the opinion that touches on various common slip-and-fall legal concepts.  Lastly, Malloy is a good example of what exactly constructive notice is, and, more importantly, what is required to show a lack of thereof.
Stay safe everyone.   
May 27, 2020              Arone v. Morton’s of Chicago/Great Neck, LLC
Appellate Division, Second Department
Second Department affirms lower court’s grant of summary judgment to a snowplow defendant on Espinal grounds.
Plaintiff was injured when he slipped and fell on ice/snow in a parking lot.  Plaintiff brought suit against both the property owner and the snowplow contractor.  As expected, the plow contractor moved for summary judgment, pursuant to the Espinal doctrine, that is cannot be liable for Plaintiff’s injured because it owed him no legal duty.  The Supreme Court agreed and granted the plow contractor’s motion. 
In affirming that decision, the Second Department focused on the fact that nowhere in either Plaintiff’s complaint, nor in his verified bill of particulars, did he make any allegations that any of the three Espinal exceptions applied.  As such, it was enough for the plow contractor to simply show that the plaintiff was not a party to the plow contractor for the contractor to establish a prima facie entitlement to judgment as a matter of law, which Plaintiff then failed to rebut.

May 13, 2020              Bishop v. Pennsylvania. Ave. Mgt, LLC
Appellate Division, Second Department
Second Department overturns lower court’s summary judgment order on the grounds that issues of fact existed as to various different legal concepts in a slip-and-fall action.
Plaintiff was injured when he tripped and fell while crossing a parking lot owned by the defendant.  Defendants moved for summary judgment on the grounds that (a) plaintiff was unable to identify the cause of his fall, (b) the defect was trivial, and (c) the defect was open and obvious.  The trial court granted summary judgment on each of those points.
In quite the rebuke to the trial court judge, the Second Department reversed the judgment as to each of the three arguments.  While the Court does not elaborate too much on the facts of the case, the opinion is full of useful case law explaining the basic requirements for summary judgment on each of the categories.  The Court, again without getting into too much detail, determined that the defendant failed to make a prime facie showing of entitlement to judgment under any of the three categories and thus the burden never even shifted to plaintiff to rebut.

May 20, 2020              Malloy v. Montefiore Medical Center
Appellate Division, Second Department
Second Department overturns lower court’s grant of summary judgment to landowner defendant because it failed to make prima facie showing that it lacked constructive notice of defect.
Plaintiff was injured when she tripped and fell on a broken curb outside of the defendant’s emergency room department.  The lower court granted summary judgment to the defendant on the grounds that it lacked constructive notice of the condition at issue.
The Second Department overturned that order and reinstated the plaintiff’s complaint.  In doing so, the Court first outlined the general concept that a defendant will be deemed to have had constructive notice of a condition if that condition is (i) visible and apparent and (ii) existed for a sufficient amount of time prior to the accident to afford them a reasonable opportunity to discover and fix it. 
In this case, the Second Department determined that the defendant failed to meet its burden in its motion papers.  While the defendant offered an affidavit of the director of engineering for the hospital which states that there no complaints about the subject sidewalk for three years prior to the incident and that he would inspect the property once a month and order repairs as needed, that affidavit failed to specifically address when the last time the specific area in question was inspected.  Additionally, the defendant’s papers failed to address whether or not the defect was visible and apparent.  As the defendant never established a prima facia case, the Second Department determined that summary judgment in its favor was inappropriate regardless of any opposition papers offered by the plaintiff.


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

Dear Readers,
The country and New York State are both beginning to reopen and I hope you are well. Hopefully, you can experience more fun times while still keeping safe by social distancing. As the re-openings occur, you can expect more slip and falls and other premises issues to occur in greater numbers.
Unfortunately, no cases involving dog bites, animal liability, or elevator and escalator accidents were issued since the last edition. The Appellate Courts are open and while they did not have any cases for you this time, I hope to have some for you next time.   Keep safe
Until next time,


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]

V. Christopher Potenza
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]


Read Past Editions of Premises Pointers




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