Premises Pointers - Volume IV, No. 10


Premises Pointers
Watch your step!

Volume IV, No. 10
Monday, March 15, 2021
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



Greetings Premises Pointers Readers!
I am super excited to announce the addition of attorney Scott D. Kagan to our firm! Scott, whose first day is today, has joined the firm’s Albany office, further expanding our ability to serve clients in the Capital District and Mid-Hudson regions. A seasoned litigator, Scott’s practice focuses on general liability and tort defense, including premises liability, trucking and commercial transportation, construction accidents, product liability, and other complex and catastrophic injury litigation. Prior to joining Hurwitz and Fine, his practice included nationwide representation of corporate clients in a diverse landscape of litigated matters including construction accidents, catastrophic personal injury claims, commercial disputes, insurance coverage disputes and appeals. Scott’s practice has also included complex product liability cases primarily in the area of automotive crashworthiness; specifically, handling cases involving medium and heavy trucks, motor vehicle and various product defect and personal injury accidents. Feel free to drop Scott a note – he can be reached at [email protected] – he would love to make the introduction!
In other news, my partner Dan Kohane, along with his good friend, attorney John C. Trimble of Lewis Wagner, LLP in Indianapolis, IN are presenting multiple webinars on the ABCs of coverage this spring. It is a 75-minute interactive program with time for Q&A open to all. If interested, please contact Dan at [email protected].
Lastly, I would be remiss if I did not mention Women’s History Month. Last month we celebrated Black History Month and a big congratulations to everyone who completed the New York State Bar Association’s 21-day challenge! This month we turn our attention to Women’s History Month. As a graduate of New England Law in Boston, I am proud of the school’s history of being a women’s-only law school at a time when most other institutions would not even accept women. The school began in 1908 as Portia Law School and while it would later become co-educational in 1938 and known as New England Law, its history as a women’s-only law school is certainly something to celebrate, especially this month. I am also proud to work with such a fine group of diverse women at Hurwitz & Fine! Last Monday was International Women's Day and we recognized all of our female attorneys at Hurwitz & Fine and their many contributions to the firm.


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. 

Labor Law Pointers:  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.

Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 


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

3/02/21            Montanez v. Target Corporation
United States District Court, Southern District
Court denied Defendant’s motion for summary judgment because Defendant’s employees were seen in the area of the fall and overheard saying that someone else had fallen before the plaintiff thus creating an issue of material fact.
Plaintiff sued to recover damages she alleged to have sustained after she slipped and fell on water on the floor of a main aisle in Defendant’s store. Defendant filed a motion for summary judgment, which the Court denied. When Plaintiff fell, five of Defendant’s employees were allegedly standing nearby in the same aisle. Plaintiff claimed that Defendant had actual notice of the dangerous condition because, after she fell, she overheard one employee scold another employee for not cleaning up the water when someone else had already fallen. Following the incident, a store manager helped Plaintiff fill out an incident report, but Plaintiff did not tell the manager about the remark she overheard, nor did she include it in the incident report. Defendant argued the statement is inadmissible hearsay, and that even if it is not hearsay, it is speculative. The Court noted that a statement is not hearsay if it is offered to show its effect on the listener; in this case, it was offered as proof that Defendant had knowledge of the dangerous condition. Finding that the statement would be admissible at trial to support Plaintiff’s argument that Defendant had actual notice, the Court added that a statement is not hearsay if it is offered against a party and is a statement by the party’s agent concerning a matter within the scope of employment, made during employment. The Court noted that statements by unidentified employees related to cleaning up a spill or mess are admissible under the rule. Turning next to Defendant’s argument that the statement was speculative, the Court found that the timing of the statement and location of the employees at the time of Plaintiff’s fall could lead a reasonable jury to infer that the statement was in reference to the water that caused Plaintiff’s fall, thus creating a genuine issue of material fact as to whether the statement constituted actual notice.
On the issue of constructive notice, Defendant claimed that, since Plaintiff testified she did not see the water when she walked down the same aisle fifteen minutes prior to her fall, it could not have been on the floor any longer than that. Plaintiff argued that she had walked on the opposite side of the aisle when she entered the store. This led the Court to find that a reasonable jury could conclude that the water was present in the aisle when Plaintiff first walked down the aisle, but could not, or did not, see it. The Court added that the fact that a spill that is dirty or partially dried can create a genuine issue of fact with regard to constructive notice. Since Plaintiff had testified that the water was dirty and dried at the edges and had made her pants dirty and wet, the Court found that the condition created a genuine issue of material fact as to constructive notice.

3/10/21            Roth v. The Cheesecake Factory Restaurants, Inc.
United States District Court, Southern District
Court denied Defendant’s motion for summary judgment because Defendant failed to establish the absence of a genuine issue of material fact.
Plaintiff brought an action to recover damages for personal injuries she allegedly sustained when she slipped and fell at one of Defendant’s restaurant locations while returning to her table from the restroom with her four-year-old grandson. Plaintiff claimed her fall was due to the negligence of restaurant personnel, who inadequately mopped an area near the restroom and left a trail of water through the restaurant on the same path that she followed from the restroom to her table. Defendant filed a motion for summary judgement arguing there was no evidence that it created the alleged condition that caused Plaintiff’s accident. Defendant argued that it lacked knowledge of a dangerous condition because there was no evidence that it received complaints or reports regarding the existence of a dangerous condition. Plaintiff countered that Defendant did have actual notice of a dangerous condition, referencing the employee’s testimony that someone told him to go check by the bathrooms, after which he mopped the floor of the bathroom vestibule and placed a “wet floor” sign in the area. Based on this, the Court found that Magistrate Judge Moses correctly concluded that the evidence raised a genuine question as to whether the employee knew that a dangerous condition existed. Regarding whether Defendant created the dangerous condition, it was determined a genuine issue of fact existed as to whether the employee who mopped caused the floor to become wet and slippery. Defendant’s motion was denied.


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

Dear Readers,

With so much of our lives remaining on pause, I find myself surprised with each change of season.  As the temperatures warm and the snow begins to melt, we are seeing objective evidence that time is actually moving forward even if the scenery is still largely the same. Although this year has moved at a snail’s pace, it is incredible to think about how different things are now, a full year into the pandemic—sure, we are still unable to mingle the way we did in January of 2020, but at least we aren’t searching high and low for toilet paper and Clorox wipes anymore.  More importantly, there is a dim light at the end of the tunnel, which becomes a little brighter each day.

Although the primary focus of New York lawmakers is the Governor’s 2021 budget, this month’s column takes a look at two recent pieces of more traditional legislation that have passed through the legislature this month (although only one has been signed by the Governor to date).

On March 7, 2021, Governor Cuomo’s Executive power to issue directives in response to state disaster emergencies was rolled back.

Early in the pandemic, the legislature authorized the Governor to take swift, unchecked, and decisive action, as needed, to address the public health crisis caused by COVID-19.  Last Friday, the legislature significantly reduced the Governor’s authority to issue broad executive directives.  The law specifically:

  • Establishes a procedure for the modification and/or extension of existing COVID-19 directives, which requires the Governor to provide the relevant committee chairs and legislative five days' notice before taking such action. Notice will include certification that the Order is needed to address a public health or safety concern. The notice requirement may only be bypassed by a certification from the commissioner of health, which is still followed by an opportunity to comment.
  • Similarly, any directive(s) impacting a single municipality will require that the Governor provide five days' notice to the municipality’s executive and legislative body.
  • No directive may be extended or modified more than once unless the Governor has responded to any and all comments from relevant chairs or municipal leaders.
  • The legislature has the authority to terminate executive orders, by concurrent resolution, at any time.
  • Municipalities may adopt their own executive orders, however, such orders must not conflict with any ongoing statewide orders.

Governor Cuomo has already signed this legislation and it takes immediate effect (although all currently existing directives are extended for an additional 30 days).
On March 8, 2021, the legislature delivered S. 3058 to Governor Cuomo’s desk for signature.  It has not yet been signed, although the Governor has ten days to execute the bill.

This bill is intended to “ensure the safety and appropriate discharge or transfer of individuals from residential healthcare facilities” by amending the public health law to add a number of pre-discharge or transfer requirements and adding an affirmative right for patients in residential healthcare facilities.  This legislation was inspired by a June 21, 2020 New York Times article, which revealed that residential health care facilities around the country have been releasing residents to inappropriate locations, such as homeless shelters, which are not capable of offering the requisite level of care. Despite pre-existing state and federal laws to prevent improper discharge, this legislation is intended to ensure compliance and to close potential legal loopholes.

More particularly, the law provides:

  • That no residential health care facility shall transfer or discharge a resident unless it is necessary for the resident’s health, safety, or welfare; to preserve the health, safety or welfare of other residents; the facility discontinues operation; or the resident has failed to pay (or make arrangements for payment) to remain at the facility.
  • Before transferring or discharging a resident, the facility shall make best efforts (including compliance with all federal and state regulations) to secure an appropriate, alternative residential placement for the resident—alternative residential placement does not include temporary housing assistance, which is defined as placement in a family shelter, a shelter for adults, a hotel, an emergency apartment, a domestic violence shelter, or a safe house for refugees.Residential health care facilities shall not transfer or discharge a resident to the home of another individual without the written consent of the resident as well as the other individual.The other individual must also be provided (and must acknowledge) a comprehensive discharge plan that addresses the resident’s needs.
  • Residents (or their lawful representatives) are to be given a written explanation, at least 30 days before a facility-initiated transfer or discharge, setting forth the basis for the transfer or discharge.The notice must be set forth in a language and manner that is understandable to the resident and is to be recorded in the resident’s clinical record.
  • If a facility is unable to meet the needs of the resident, a resident may be transferred or discharged, however, the clinical record must document the specific needs that cannot be met, the facility’s attempts to meet the resident’s needs, and the services available at the facility.
  • Residents who are transferred or discharged because the resident cannot be safely cared for within the facility, or is a danger to others, may be provided with less than 30 days' notice but must still be provided with notice of the intended transfer or discharge as soon as practicable. The facility must also document the risks the resident poses to himself or others, in the resident’s clinical record, were the resident to remain in the facility.
  • Residents who no longer need residential heath care facility services may be discharged.
  • Where a resident initiates a transfer or discharge themselves, the resident’s designated representative must be notified of the resident’s voluntary transfer or discharge as soon as practicable (or, at a minimum, within the 48 hours thereafter).
  • Residential Health Care facilities shall not compel, or attempt to compel, a voluntary transfer or discharge from the facility.
  • Finally, the law provides that “Every patient shall have the right to remain in care unless the patient is appropriately discharged or transferred…and a residential health care facility shall not attempt to compel or retaliate against an individual that chooses to remain in care.”


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

Greetings Subscribers!
March Madness is here, and I am very excited to watch conference basketball tournaments this week, selection Sunday, and the return of the NCAA tournament next week! It also helps the psyche that spring has arrived with temperatures approaching 60 degrees this week in Buffalo.
This month, I report on a few interesting cases. Garland involves authorizations for the release of medical records and when a plaintiff in a personal injury action is deemed to have waived the physician-patient privilege. Papadopoulos warns all practitioners of the perils of ignoring self-executing, conditional orders as it can result in you being precluded from offering any evidence at trial. Feel free to reach out and let us know if you're interested in webinars or other training as we offer many topics or can create a new one to tailor to your needs. We enjoy helping you work through your “situations.”
Stay safe until next time…

02/10/21          Garland v City of New York
Appellate Division, Second Department
Defendants were entitled to an order directing plaintiff to provide authorizations for the release of all her medical records for five years before the accident up through and including the present, considering plaintiff’s broad allegations of physical injuries and loss of enjoyment of life.
Plaintiff was allegedly injured while boarding a bus owned and operated by defendants. The trial court denied plaintiff’s motion to vacate a prior order directing her to provide authorizations for the release of all her medical records for the five years prior to the subject accident through the present.
Although physician-patient communications are privileged under CPLR § 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue. Once such a waiver ha occurred, the plaintiff must provide duly executed and acknowledged written authorizations for the release of relevant medical records under the liberal discovery provisions of the CPLR.
In this case, the Second Department held that plaintiff affirmatively placed her entire medical condition in controversy through broad allegations of physical injuries, exacerbation of preexisting medical conditions, and the loss of enjoyment of life. Moreover, the Court determined the demands were not overbroad because the trial court providently exercised its discretion in limiting access to plaintiff’s past medical records to the five-year period preceding the subject accident.

02/10/21          Rodriguez-Dominguez v Blackstone Contrs., LLC
Appellate Division, Second Department
Defendants were entitled to an order dismissing plaintiff’s complaint for failure to comply with court-ordered discovery.
The trial court granted defendant’s unopposed motion, pursuant to CPLR § 3126, to strike the complaint. The Second Department dismissed plaintiff’s appeal because the record contains no proof that plaintiff ever formally opposed the motion. Therefore, the order granting defendant’s motion was made without opposition and no appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR § 5511; Narvaez v City of New York, 171 AD3d 764 [2d Dept 2019]; Wells Fargo Bank, N.A. v Syed, 160 AD3d 914 [2d Dept 2018]).

02/23/21          Rozefort v Bronx Lebanon Hosp. Ctr.
Appellate Division, First Department
Plaintiff demonstrated good cause to extend the time to file her note of issue after the 90-day notices served by defendants had expired.
The trial court granted defendant’s motion to dismiss the complaint, pursuant to CPLR § 3126, and denied plaintiff’s cross-motion to vacate the 90-day notices to file the Note of Issue (NOI) served by defendants. The First Department unanimously reversed the trial court, granted plaintiff’s cross-motion, and denied defendants’ motion.
The Court noted that plaintiff moved by order to show cause (OTSC) to extend the time to file a note of issue and the trial court’s denial to sign the OTSC was not filed with NYSCEF under one day after the time to seek an extension had expired. Under those facts, the Court held the proposed OTSC was sufficient to constitute a timely motion to extend the time to comply with the notices.
Therefore, reasonable excuse and meritorious cause of action need not be demonstrated because the issue is whether there was good cause shown to extend plaintiff’s time to file her NOI. Here, the Court held the record demonstrates good cause in that plaintiff has complied adequately with discovery demands. In view of the strong preference that actions be decided on their merits, the Court reinstated this case with an expedited schedule set for the completion of discovery and the filing of plaintiff’s NOI.

 03/04/21          Papadopoulos v Metropolitan Transp. Auth.
Appellate Division, First Department
Defendants were precluded from offering any evidence at trial for ignoring a self-executing so-ordered stipulation, which was a conditional order of preclusion.
The trial court granted plaintiff’s motion for sanctions and to strike defendants’ answer only to the extent of directing defendants to provide certain discovery, based on a self-executing so-ordered stipulation and conditional order of preclusion, which defendants ignored. That order became self-executing when defendants took no action within the 30-day time limit they were required to provide the requested discovery or “request [an] immediate conference” to explain why they could not do so. Defendants did neither.
The Second Department unanimously modified the trial court’s decision to the extent of precluding defendants from offering any evidence at trial. Defendants failed to move to vacate their default and did not articulate a reasonable excuse for their failure to comply with the prior order, nor offered a meritorious defense to the action.
Defendants also did not address their failure to respond to plaintiff’s notices for discovery and inspection and the Court held their explanation regarding their video disclosure fell short because it did not address all outstanding videos and did not provide any evidence of their efforts. Defendants also could not demonstrate a meritorious defense through the train operator’s testimony as it did not establish that defendants were not negligent. Nor could they rely on the police department’s statement that decedent might have been intoxicated, as the Court found that statement is wholly speculative.


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

Dear Readers,
Welcome to another edition of my column in Premises Pointers. I hope you are all staying safe. Down here in the Melville office, we are enjoying some spring like weather after some heavy snow periods. The groundhog appears to have correctly predicted six more weeks of winter weather but that time is coming to an end. In the meantime, we have been told jury trials are slowly going to start March 22,  though what form or how many will do each week we do not know.
We have a couple of cases this edition. In an elevator case, the elevator maintenance company was dismissed from the case by demonstrating it had no notice of the defective condition, did not launch  a force of harm or create the condition and its maintenance obligation gave no duty to fix anything elevator related unless retained by the owner to do so. In another case, an elevator maintenance company’s motion to dismiss failed because an affidavit from its president that it performed no maintenance and had no contract or connection to the building where the accident occurred was not documentary evidence and could not be considered by the Court. The pleadings pleaded a cause of action against the elevator company successfully, even if plaintiff could not ultimately prevail on its lawsuit.
Until next time,

February 24, 2021     Vasquez v. West 161 LLC
Supreme Court, New York County
Elevator repair company that did not launch force of harm or have notice of defective condition dismissed from case.

Plaintiff alleged they were injured by a swinging elevator door as they were exiting the elevator of their apartment building. He alleged the owner and elevator maintenance company had actual and constructive notice of the defective condition-that the hinges on the swinging door were worn. Specifically, plaintiff alleged that, on January 19, 2011, he was injured while leaving the elevator on the third floor of the building in the following manner: "As [I] proceeded to exit the elevator, the first elevator door open[ed] automatically. When [I] pushed the second door to exit the elevator[,] the entire door came off the hinge[s], causing said door to collapse on [me]." The elevator in the building had two doors and, in order to exit the elevator, the inner door opened automatically upon reaching a floor and then the occupant of the elevator had to manually open the heavy outer door in order to walk out of the elevator onto the floor. Plaintiff testified that, if there was a problem with the elevator, he would notify the building's superintendent3. Although he called him "every year" to report that the elevator got stuck between floors, he could not recall exactly when those complaints were made and plaintiff did not make any written complaints about the elevator to building management prior to the incident.
Plaintiff admitted that he had to go to the bathroom when he left the elevator and that he pushed the door open "hard", forgetting that a piece of the door was missing. Specifically, he had previously seen a bolt missing in the middle of the "door closer", although he had not previously observed any problem with the two hinges on the swinging door.
Prior to plaintiff's accident, Imperial, the elevator company. had entered into a monthly maintenance contract with West 161 's managing agent which provided, inter alia, that on a monthly basis they would systematically examine, clean, lubricate and furnish lubricants for the machine, motor and controller parts including, worms, gears, thrusts, bearings, brake magnet coils, brake shoes, brushes, windings, commutators, coils, contacts, resistors, magnets frame, and will furnish and install contacts and carbons where necessary, and adjust equipment for proper operation. The company would keep the elevators properly lubricated, with lubricant prepared to its specifications. Safety devices and governors would also be examined. The contract further provided that Imperial did not assume owner West 161’s safety-related obligations, nor did it  assume possession or management of any part of the equipment or its operation, including the leveling of cars at landings, erratic operation of car doors, shaft doors or their locking devices or any other situation that may occur that cannot be revealed at the time of their regular service under the terms of this contract.
According to Imperial’s witness, Imperial's obligation was simply to test the operation and performance of the elevator and its equipment, and not to predict how the equipment would perform in the future. If the swinging doors on any floor had not closed properly during the course of  lmperial's visit and the elevator had to be shut down, the test would have been marked unsatisfactory and the issue with the door would have been reflected in the comments section of the Department of Buildings' annual ELV3 report. However, as established by the ELV3 report, the elevator passed its 2010 annual inspection. If the elevator failed inspection, Imperial would have submitted a proposal to the building for any necessary repairs. Imperial was not required to perform any other routine inspection or monthly test of the elevator. Based on his experience in the industry, the witness opined that vandalism or some other act caused the swinging door to become completely dislodged from its hinges, since this type of event did not ordinarily occur on its own
Imperial moved to dismiss the complaint on the ground that it had no duty to maintain or repair the swinging door which injured plaintiff. It further asserted that the maintenance agreement for the elevator specifically provided that it had no obligation to address problems with the swinging doors. Alternatively, Imperial argued that, even if it had such a duty, it had neither actual nor constructive notice of any problem with the door. Plaintiff argued that issues of fact existed regarding whether it properly inspected and/or maintained the door, thereby warranting denial of the motion. West 161 opposed the motion as well, asserting that Imperial should have discovered the problem with the door during its regular servicing of the elevator and that it should have disclosed the problem with the door to West 161. It insisted that, although there is no evidence that Imperial ever reported a problem with the door to West 161, this was not because there was no problem, but rather because Imperial negligently failed to discover it.
The trial court noted "an elevator maintenance company owes a duty of care to members of the public and may be liable for failing to correct conditions of which it is aware, or failing to use reasonable care to discover and correct a condition which it ought to have found.” It noted that such a duty was limited to cases where, pursuant to contract, the elevator company has assumed 'exclusive control' of the elevator at the time of the accident. It noted in Medinas v MILT Holdings LLC, 131AD3d121, 128 (1st Dept 2015), the First Department, citing Espinal v Melville Snow Contractors, 98 NY2d 136 (2002), held that it was "unwilling to apply the rule  to the extent it allow[ ed] a claim of negligent repair or inspection against an elevator repair contractor by a nonparty to its contract in the absence of a showing that by the work it performed, it 'launched a force of harm' by creating or exacerbating an unsafe condition."
The trial court noted Imperial was entitled to summary judgment  by demonstrating that it did not create or exacerbate the dangerous condition which allegedly caused plaintiffs injuries. Specifically, Imperial submitted as an exhibit to its motion its maintenance contract, which provided, inter alia, that it did not "assume possession or management of any part of the equipment or its operation, including ... shaft doors or their locking devices ... " Further, its witness testified the swinging door was maintained by the building superintendent or the management company unless the building specifically authorized Imperial to repair it and  Imperial's dispatch log revealed no complaints. Plaintiff and West 161 fail to raise an issue regarding whether Imperial launched a force or instrument of harm since they did not demonstrate, or even allege, that Imperial created or exacerbated a dangerous condition.  
02/17/21          Andrioli v. Schindler  El. Corp.
Supreme Court New York County
Pre-Answer Motion denied as elevator company’s affidavit of its president that it performed no work at the premises and had no contract for the premises was not documentary evidence.

Plaintiff commenced the instant action to recover for injuries she allegedly sustained on July 8, 2019 when she was injured due to a malfunctioning elevator at New York Presbyterian/Columbia University Medical. Defendant Noble Elevator Company Inc. (“Noble”) moved to  dismiss plaintiff’s amended complaint and any and all cross-claims against it, pursuant to CPLR 3211(a)(1) and (a)(7) on the grounds that Noble never performed any service, maintenance, repair or inspection of the elevators at the aforementioned premises, prior to or after plaintiff’s alleged accident.
 Noble submitted the affidavit of Stephen Dutton, President of Noble. Dutton testified that Noble Elevator never entered into any contract for the service, maintenance, repair or inspection of the elevators located at the aforementioned premises and never performed any service, maintenance, repair or inspection of the elevators there at any time either prior to or after the July 8, 2019 alleged accident. He further stated that any reference to Nobel Elevator contained in the New York City Department of Buildings’ records for the premises was entered by that agency in error since Noble Elevator never performed any work at the accident site. The trial court held that  it is well settled that affidavits “which do no more than assert the inaccuracy of plaintiffs’ allegations” cannot be considered. (Additionally, defendant Noble asserted  that co-defendant Schindler Elevator Corporation’s (“SEC”) verified answer qualifies as documentary evidence as SEC admits that on July 8, 2019, a service contract existed between SEC and New York Presbyterian Hospital which included providing services at the accident site. The trial court held, however, that although co-defendant in its verified answer admits to having a service contract with New York Presbyterian Hospital, including servicing the accident site, it does not resolve all factual issues as a matter of law, and does not conclusively dispose of plaintiff’s claim as to Noble. Based on the above, the defendant Noble failed to meet its burden of providing “documentary evidence” showing that they had no connection or did not contribute to or cause plaintiff’s alleged accident which occurred at New York Presbyterian Hospital. Likewise, on a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts alleged fit within any cognizable legal theory. Here, construing plaintiff’s complaint liberally, accepting the facts alleged in the complaint as true, and affording the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action for the injuries sustained herein. Whether the plaintiff can ultimately prevail on these allegations against the defendant is not relevant on this pre-answer motion to dismiss, because there is insufficient documentary evidence showing who created or caused the dangerous condition which caused plaintiff’s alleged injuries, whether Noble performed any services at the aforementioned premises at any time, an explanation as to the alleged error in the New York City Department of Buildings’ records, how long the elevator malfunction existed and Noble’s connections with New York Presbyterian Hospital.


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

Greetings Readers:
As I am sure you all are aware, this month marks one full year since the COVID crisis became a true pandemic in America.  Looking back at the March 2020 edition of Premises Pointers, it’s interesting to think that as I wrote that column, I had no idea that the next twelve months would be the most unusual of my entire life.  That edition, written twelve months ago, I was waxing poetically about how my young daughter had just began to crawl.  Now, at times, I pray that she would stand still for long enough to catch my breath!  I’m blessed to have remained healthy throughout and even more blessed that my family did.  My thoughts go out to everyone who has been touched by this crisis.  The news these days is encouraging and, provided everything stays the course, it does seem as if we are approaching a somewhat return to normalcy. 
On a personal professional level, this Tuesday I will be appearing in front of the Third Department myself to argue a case.  That case deals with issues surrounding New York’s nebulous “Serious Injury Threshold” that governs automobile cases, so it will likely not make an appearance in any upcoming editions of Premises Pointers.  However, I am sure that readers of our companion newsletter – Coverage Pointers – will get a full recap of the ruling in that case in the Threshold section of that periodical.
Turning to issues surrounding slip-and-fall law, this month I highlight three cases from downstate.  The first one deals with an oft-cited exception to the rule in New York City that landowners are responsible for maintaining the sidewalks abutting their property.  The next two are two great examples of how to (and how not to) attempt to rely on the storm-on-progress doctrine to dismiss a slip-and-fall plaintiff’s case.
Hope everyone stays safe and we’ll see you next month!
March 3, 2021    Zak v. City of New York
Appellate Division, Second Department
Second Department reverses trial court’s denial of property owner’s motion for summary judgment because owner established he was entitled to residential exemption from liability contained in New York City’s Administrative Code.
Plaintiff was injured when he alleged tripped and fell on a sidewalk defect abutting property owned by the landowner defendant.  He brought suit against the landowner as well as the City of New York on a theory of negligence.  The landowner moved for summary dismissal of the complaint against him on the basis that he was exempt from liability based upon section 7-210 of the Administrative Code of New York City.  Despite neither the plaintiff nor the co-defendant City opposing his motion, the trial court nevertheless denied the same.
In overturning the trial court’s denial of the landowner’s motion, the Second Department cited to Section 7-210 of the Administrative Code which imposing premise liability for defective sidewalks on the owners of abutting property.  That same section, however, explicitly does not apply if the abutting property is a one, two or three-family residence that is (a) owner-occupied and (b) used exclusively for residential purposes.  While the owner did have a home office, out of which he did some sporadic work for his photography business, the Court reasoned that, since the owner never claimed a “home office” tax deduction and only occasionally worked out of the property, the exemption applied and the owner could not be held liable for any sidewalk defects outside the property.

February 24, 2021    Itzkowitz v. Valley Nat’l Bank Corp
Appellate Division, Second Department
Second Department reverses trial court’s grant of summary judgment to defendant landowner based on lack of prima facia storm-in-progress case, while at same time affirming trial court’s dismissal of action against snow plow contractor on Espinal grounds.
Plaintiff was injured when she alleged slipped and fell on ice located on property controlled by the landowner defendant.  Landowner defendant had a contract with a snow plow entity to service that area.  The trial court granted summary judgment to both defendants for separate reasons: to the landowner based on a storm-in-progress argument and to the plow entity based on a lack of duty.
Regarding the storm-in-progress argument, the Second Department assertively rejected the landowner’s arguments.  For one, the Appellate Court opined that the landowner’s reliance on climatology data from only a neighboring country was completely unpersuasive.  No kidding.  Additionally, the plaintiff’s testimony that the ice upon which she fell was at least one-inch thick created an issue of fact concerning how long said ice existed.  As such, the Court reinstated the complaint against the landowner.
The Plaintiff did not succeed in reinstating the complaint against the snow plow contractor however.  The Court reasoned that there was no evidence that the contractor “launched an instrument of harm” that resulted in the creation of the alleged icy hazard.  The absence anything to qualify under that exception to the Espinal doctrine, nor the application of the other two exceptions, resulted in the trial court’s dismissal of the complaint being appropriate and thus affirmed.

February 25, 2021    Ponce v. BLDG Orchard LLC
Appellate Division, First Department
First Department affirms trial court’s grant of summary judgment to landowner defendant on storm-in-progress grounds.
Plaintiff here was injured when she alleged slipped and fell on ice located on defendant’s property.  The trial court granted defendant’s motion for summary judgement on storm-in-progress grounds based upon defendant offering sufficiently persuasive evidence to entitled it to summary dismissal.
The First Department quickly affirmed.  In contrast to the moving defendant in Itzkowitz above, the moving defendant here properly used climatology data.  Specifically, their expert provided detailed data that established that the ice upon which the plaintiff fell was the result of snow that stopped a mere 35 to 40 minutes prior to her fall.  This was obviously not a reasonable enough amount of time to expect the defendant to address the ice and thus the storm-in-progress defense absolved them of any liability.


Jody E. Briandi
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Anastasia M. McCarthy
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Marc A. Schulz
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Brian M. Webb
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