Premises Pointers - Volume IV, No. 11

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.

WHAT PREMISES POINTERS COVERS
Retail, Restaurant and Hospitality Industry
School District and Municipal Liability
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

NOTE FROM THE EDITOR:

Happy Spring!

While we are just over one year into the pandemic, we continue to see light at the end of the tunnel with increased vaccinations and future reopening plans.

Our Labor & Employment team continues to stay up-to-date on the latest NYS regulations and provide updated guidance to our clients. They have recently published an alert on Paid Leave for Vaccinations, which provides everything employers and employees need to know surrounding this initiative.  

Congratulations are also in order as five of our litigation attorneys were featured in The Harmonie Group’s “2020 Significant Cases” publication:

• Putative class action dismissed against insurance company in an action to collect funds allegedly owed under the Medicare Secondary Payer Act – Michael F. Perley and Amber E. Storr
• Defense verdict in Labor Labor 240(1) "Falling Worker" trial – V. Christopher Potenza
• Professional liability suit dismissed against landscape architect – Andrea Schillaci and Katherine L. Wood

Lastly, our firm’s Diversity & Inclusion Committee once again put together a team building activity and programming for the month of April. As April is Autism Awareness Month and Celebrate Diversity Month, attorneys and staff wore blue to show our support and to celebrate the countless ways that people with autism contribute to our families, our communities, and the world. We also partook in a presentation on “Disability and Diversity” where Dr. Kathy Doody educated on individuals with autism, understanding them, and actively including them on equal terms.

I’m looking forward to the future events our Diversity & Inclusion committee will put together—and hopefully, soon, they will be in-person!

Until next month,

Jody


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.

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 [email protected]

3/19/21            Graul v. Van Damme
Appellate Division, Fourth Department
Danger at the disco? Maybe, according to the court. Judgment of lower court upheld because defendants failed to demonstrate the platform at their bar did not constitute a dangerous condition.
 
Plaintiff brought this action to recover damages for injuries sustained when she fell while stepping from a platform inside Defendants’ restaurant and bar. Defendants appealed, contending that the platform did not constitute a dangerous condition.
 
On appeal, the Court found that the Defendants failed to establish that the platform, when considered in conjunction with the surrounding lighting conditions and the lack of visual cues marking the change in elevation, did not constitute an unreasonably dangerous condition.  Citing Calandrino v. Town of Babylon, 95 A.D.3d 1054, 1056, 944 N.Y.S.2d 286 (2^nd Dept. 2012), the Court stated that whether a hazard is open and obvious “cannot be divorced from the surrounding circumstances, and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.” The Court added that the fact that Plaintiff had crossed the platform prior to her fall does not determine, as a matter of law, whether the platform constituted a dangerous condition. The Court found that, although Plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, Defendants failed to establish that Plaintiff’s fall was due solely to her own negligence. Finding that Defendants had failed to establish that the hazard posed by the platform was open and obvious and that they had no duty to warn Plaintiff, the Court held that the Supreme Court had properly denied Defendants’ motion for summary judgment.

 
3/31/21            Piotrowski v. Texas Roadhouse, Inc.
Appellate Division, Second Department
The Appellate Court reversed Supreme Court’s decision granting Defendant’s motion for summary judgment because Defendant failed to meet burden of proof – evidence of general cleaning procedures at restaurant deemed insufficient.
 
Plaintiff brought an action to recover damages she claimed to have sustained after she slipped and fell inside Defendant’s restaurant. Defendant filed a motion for summary judgment, arguing that Plaintiff did not know what had caused her fall and that Defendant neither created nor had notice of the alleged hazardous condition that caused her fall. The Supreme Court granted Defendant’s motion.
 
On appeal, the Court determined the Supreme Court erred in granting Defendant’s motion, noting that, contrary to the Supreme Court’s determination, the defendant moving for summary judgment, not the plaintiff, has the burden of making a prima facie showing it neither created the hazardous condition nor had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. The Court found that Defendant failed to establish, prima facie, that Plaintiff did not know what had caused her to fall without engaging in speculation. In support of its motion, Defendant had submitted Plaintiff’s deposition testimony, in which she testified that she slipped and fell due to a slippery stain on the floor underneath the table at which she was dining.
 
The Court also found that Defendant failed to show, prima facie, that it did not have constructive notice of the condition that Plaintiff alleged caused her to fall, noting that, to meet its burden, Defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when Plaintiff fell. Defendant had submitted the transcript of the deposition testimony of the individual who was the managing partner of the restaurant at the time of the accident, but that manager testified only as to the restaurant’s general cleaning and inspection policy and not about any specific inspections that may have occurred prior to Plaintiff’s fall. The Court found that Defendant failed to establish its prima facie entitlement to judgment as a matter of law and that the Supreme Court should have denied Defendant’s motion for summary judgment.

 
4/7/21  Francis v. Costco Wholesale Corporation and Costco Wholesale Membership, Inc.
United States District Court, Southern Division
Court granted Defendant’s motion for summary judgment because Defendant failed to establish her injury was causally related to her fall.
 
Plaintiff brought an action to recover damages for personal injuries she alleged to have sustained when she slipped on mayonnaise on the floor at a Costco store. By her own admission, she did not fall and her knees did not make contact with the ground when she slipped. However, she visited her orthopedist ten days after the incident, complaining of bilateral knee pain, at which time she was treated with injections in both of her knees. Prior to the incident at Costco, Plaintiff had been treating with her orthopedist for arthritis in her right knee, but she claimed the injury to her left knee was caused by the slip at Costco. Medical records from the doctor’s visit ten days after the Costco incident note that an x-ray of her knees demonstrated bilateral degenerative joint disease of the knee, and she was diagnosed with primary osteoarthritis of the left knee in addition to the right. Aside from those medical records, Plaintiff did not submit any evidence from a medical expert witness or any treating physician. Therefore, there was no medical evidence connecting her post-slip complaint of left knee pain with the alleged slip at Costco.    
 
It has been established that, in a case where an injury has multiple potential causes, expert testimony is necessary to establish causation, and aggravation of pre-existing injuries must be established by objective evidence. Plaintiff failed to submit any such evidence, relying instead on her medical records, testimony from her treating physician, her own testimony, and the report of defendants’ expert, none of which is sufficient to create a dispute of material fact as to causation. She failed to submit an expert report or an affidavit from her treating physician, arguing that her failure to disclose her orthopedist as an expert under Rule 26 should not preclude him from testifying at trial. The Court found this failure to be fatal to Plaintiff’s claim, noting that a party opposing a motion for summary judgment cannot withhold evidence until trial, and that Rule 56 requires a plaintiff to come forward with any evidence she has that will support her case. Finding that Plaintiff failed to provide any evidence establishing an issue of material fact with regard to causation, the Court granted Defendants’ motion for summary judgment dismissing the complaint.

School District and Municipal Liability 
By: Anastasia M. McCarthy [email protected]

Dear Readers,
 
Welcome to my new column, School District and Municipal Liability! Although I will miss bringing you legislative updates, this column is more in line with my own day-to-day practice and really touches on one of my personal, favorite areas of practice—school district representation. 
 
This month’s column highlights a Second Department decision turning on the pivotal issue of prior notice in a student-on-student assault and a very interesting federal court decision requiring the Court to interpret the Child Victims Act and the Dignity for All Students Acts (as well as to analyze a Title IX claim).
 
 
03/17/21          Wienclaw v. East Islip Union Free School District
Appellate Division, Second Department
 
This case involves claims of negligent supervision and negligent training.  The plaintiff, a student at a District school, was assaulted by another student, J.P.  A few days before the assault, an Assistant Principal at the school was informed that J.P. intended to fight with someone at school. After receiving this information, the Assistant Principal immediately spoke with J.P. and warned him of the consequences of fighting. The Assistant Principal also informed J.P.’s mother about the alleged threat as well as the consequences J.P. would face if involved in a physical fight.  J.P. generally denied the plan and never disclosed who the purported target was.  Out of an abundance of caution, the Assistant Principal put the head of school security on notice of the rumored fight, although he had no reason to believe a fight would actually transpire.
 
The Second Department held that the District was entitled to summary judgment.  Not only was there no evidence that the District was aware of any particularized threat of violence against the plaintiff, but the Assistant Principle took reasonable steps to prevent J.P. from fighting.  Moreover, the District established that the incident occurred suddenly and spontaneously and that the allegedly negligent supervision was not the proximate cause of plaintiff’s injuries—J.P.’s conduct was. 
 

03/22/21          AA and BB v. Hammondsport Central School District et al.
U.S. District Court, Western District of New York
 
Plaintiff, AA, was a 15 year old student at the District’s high school who alleges that she was sexually harassed and physically assaulted over a 30 minute period of time during a faculty-monitored study hall.  The harasser was a 19 year old student who, on the date of the incident, sat beside AA in an informal seating area, touched her through her clothing without her consent, and made a number unwelcome sexually explicit comments to AA.  AA alleges that the conduct occurred within the line of site of the supervising teacher, but the teacher failed notice nor to intervene.  After reporting the conduct the multiple school personnel, administrators decided to let the harasser off with a warning.
 
Plaintiff’s mother filed a criminal complaint on her daughter’s behalf and obtained a temporary order of protection against the harasser.  Despite knowing about the order of protection, the District allowed the harasser to return to the same study hall period with the plaintiff shortly thereafter.  Over the following weeks, the harasser and his friends publicly mocked and ridiculed AA repeatedly and throughout the day, freely disrupting classes as well as AA’s lunch period. Eventually, plaintiff was forced to leave the District.
 
In filing suit, Plaintiff set forth six causes of action—gross negligence/negligence; negligent supervision (of the students); negligent supervision, hiring, training and retention of District personnel; violation of the New York Child Victim’s Act; negligent infliction of emotional distress; violation of federal law (Title IX); and violation the Dignity for All Students Act.  After removing the case to federal court, the Defendants moved to dismiss.  On motion, the Court:

• Dismissed plaintiff’s negligence/gross negligence claims as duplicative of the plaintiff’s negligent supervision and negligent hiring, retention and training claims.
• Dismissed plaintiff’s negligent supervision (of students) claim with leave to replead.  The Court held that plaintiff failed to allege prior, similar conduct by the harasser such that the District could or should have anticipated the physical assault.
• Dismissed plaintiff’s negligent supervision, hiring, training, and/or retention (of employees) claim because the plaintiff failed to allege that the District knew that its employees had the propensity to commit the acts alleged (i.e. propensity of ignoring harassment or failing to intervene in incidents of harassment) or that the District would/should have been aware of this propensity had it employed adequate hiring procedures.  Plaintiff also failed to allege that any of the individually named defendants had acted outside the scope of his or her employment.
• Dismissed plaintiff’s Child Victims Act claim, holding that the CVA does not create an independent cause of action but instead functions only as a claim-revival statute.
• Dismissed plaintiff’s negligent infliction of emotional distress claim as duplicative of plaintiff’s negligent supervision claim.
• Dismissed part of plaintiff’s Title IX claim for student-on-student harassment.  Specifically, the Court determined that the alleged physical assault/initial incident of harassment did not, as a matter of law, state a claim of Title IX harassment.  To state a claim under Title IX, the plaintiff must plausibly allege that the school had actual knowledge of the harassment (or the risk of harassment); that the school was deliberately indifferent to the harassment; and that the harassment was so severe, pervasive, and objectively offensive that it deprived the plaintiff of access to educational opportunities and benefits.  A Title IX Complaint based on only a single incident of harassment will not, as a matter of law, state a Title IX claim unless the single incident is sufficient egregious or violent.  Plaintiff did, however, set forth a valid Title IX violation relative to the school’s post-incident failure to protect the Plaintiff from the harasser since it allowed the harasser to have continued contact with the Plaintiff despite knowing of the initial assault as well as the protective order. 
• Finally, the Court dismissed Plaintiff’s DASA claims.  Plaintiff alleged that the school violated the Dignity for all Students Act (DASA) by acting with deliberate indifference to the harassment, failing to take prompt and effective steps to end it, and failing to implement appropriate policies to protect plaintiff from harassment. Like Plaintiff’s alleged CVA claim, the Court held that DASA does not create an explicit or implicit right of action.

New York Discovery and Litigation Angles
By: Marc A. Schulz [email protected]
 

Greetings Subscribers!
 
March Madness is over, and what an amazing and exhilarating NCAA tournament we were given! This month, I report on a few discovery cases, including another citing to the Court of Appeals case Brito v Gomez. The First Department in Akel v Gerardi held that defendants were entitled to conduct discovery into plaintiff’s preexisting mental health records.
 
Additionally, an interesting case was issued last month involving the production of an insurance carrier’s claims file relating to a supplementary underinsured/uninsured motorist (SUM) claim. Our coverage team refers to this one as a “Thousands Flee” case and you can access Steve Peiper’s cover note with his case analysis here. Steve and I regularly defend insurance carriers in SUM claims (at court and in AAA) and handle motions to compel the claims file and cross-motions for protective orders. If you find yourself the subject of one of these motions, tread carefully with asserting the attorney-client and materials prepared in anticipation of litigation privileges as courts are routinely ordering carriers to produce their claims files in SUM cases, which necessarily contains investigative materials, sometimes even those prepared by attorneys. Please reach out if you wish to discuss this issue or if you are interested in webinars or training as we are here to assist you with your discovery “situations.”
 
Stay safe until next time…
 
Marc

 
03/30/21          Moore v Nizam
Appellate Division, First Department
Plaintiff’s disagreement with six prior discovery orders directing him to serve a supplemental bill of particulars did not excuse his noncompliance where he agreed to provide one and failed to challenge the trial court’s discovery orders.
 
The trial court granted defendants’ motion strike plaintiff’s complaint and dismissed the action based on plaintiff’s failure to comply with discovery orders and to post court-ordered security for $250 in costs. The First Department unanimously affirmed because plaintiff failed to explain why he did not comply with six discovery orders issued between 2018 and 2019 directing him to serve a supplemental individualized bill of particulars.
 
Plaintiff’s disagreement with the discovery orders does not excuse his noncompliance, where he repeatedly and explicitly agreed to provide the individualized bill of particulars, and he failed to challenge any of the court’s discovery orders; instead, he simply ignored them. Plaintiff also failed to articulate a reasonable excuse for his delay in posting the ordered security.
 
 
04/08/21          Akel v Gerardi
Appellate Division, First Department
Defendants were entitled to conduct discovery into plaintiff’s mental health records and whether or to what extent the preexisting psychological conditions caused the complained-of injuries.
 
Plaintiff’s alleged injuries included shortness of breath, chest pain and tightness, dyspnea, heart palpitations, tachycardia, dizziness, nausea, insomnia, fatigue, maralgia paresthetica, and “difficulty with activities of daily living.” The trial court denied defendants’ motion to compel plaintiff to produce HIPAA-complaint authorizations for mental health records.
 
The First Department unanimously reversed and permitted discovery into whether or to what extent, if any, plaintiff’s underlying psychological conditions, and not the alleged accident, caused the complained-of injuries (see Brito v Gomez, 33 NY3d 1126 [2019] [internal citations omitted]).
 
 
04/08/21          Youwanes v Steinbrech
Appellate Division, First Department
Defendants were not entitled to an order of dismissal or preclusion where they failed to demonstrate that plaintiff’s failures in providing court-ordered discovery were willful, contumacious or due to bad faith, and failed to establish the trial court abused its discretion in denying their motion.
 
The trial court denied defendants’ motion to dismiss the complaint, pursuant to CPLR § 3126. The First Department unanimously affirmed as the trial court providently exercised its discretion in not striking the complaint based upon plaintiff’s failure to provide the court-ordered discovery. A motion court “is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused.” Here, defendants do not point out any flaw or error in the trial court’s decision and thus fail to satisfy the abuse of discretion standard of review.
 
Additionally, defendants did not conclusively demonstrate that nondisclosure was willful, contumacious, or due to bad faith. Even if the proffered excuse is less than compelling, there is a strong preference in our law that matters be decided on their merits and defendants fail to demonstrate that an order of dismissal or preclusion was warranted.

Slip-and-Fall Law
By: Robert E.B. Hewitt III [email protected]

Welcome to another edition of Premises Pointers. I have switched the focus of my column from elevator/escalator liability to the latest in slip-and-fall law. This will include ice cases, storm-in-progress cases, and other related topics. I hope you find it useful.
 
We have a number of cases this edition that cover multiple issues. We have cases involving constructive notice as to an icy condition, triviable defects and what is needed to show lack of constructive notice, and other issues relating to defective conditions on sidewalks. Hopefully, you find something useful this edition.
 
Until next time,
 
Rob

 
April 7, 2021 Morales v. Davidson Apartments LLC
Appellate Division, Second Department
A jury could reasonably find that ice that originated from snow that had fallen several days before and melted and refroze should have been discovered by defendants such that they had constructive notice.

On February 14, 2015, the plaintiff sustained injuries when she slipped and fell on ice on a sidewalk abutting property owned and managed by the defendants. Thereafter, the plaintiff commenced a personal injury action against the defendants. At a jury trial, the jury found in favor of the plaintiff on the issue of liability. The jury subsequently awarded the plaintiff damages in the principal sums of, inter alia, $2,000,000 for past pain and suffering, $2,000,000 for future pain and suffering, and $350,000 for future medical expenses. Thereafter, the court granted that branch of the defendants' motion pursuant to CPLR 4404(a) which was to set aside, as excessive, the award for past pain and suffering to the extent of reducing the award from the principal sum of $2,000,000 to $600,000. The plaintiff consented to that reduced award.
 
On appeal, the Appellate Court held that a motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party. In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant. Here, affording the plaintiff the benefit of every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her, the Appellate Court found the jury could have rationally concluded that the defendants had constructive notice of the icy condition that caused her to slip and fall.
 
To establish the existence of constructive notice, a plaintiff must show that the defect was visible and apparent and that the defect existed for a sufficient length of time prior to an accident to permit the defendant's employees to discover and remedy it. The Appellate Court found the jury could have rationally concluded from the testimony that ice originated from snow that fell several days before the accident that had melted and then froze, and that this condition existed for a sufficient period of time to allow the defendants to discover and remedy it.

 
04/07/21          Levy v. Incorporated Village of East Hampton
Appellate Division, Second Department
The Village failed to address in its moving papers the allegations in the bill of particulars that the Village affirmatively created the hazardous condition.

On February 28, 2015, between 3:00 p.m. and 4:00 p.m., the plaintiff Mona Levy allegedly slipped and fell on snow, ice, and slush on a sidewalk located within the defendant Incorporated Village of East Hampton. The Village was responsible for removing snow and ice from the subject sidewalk. The plaintiff, and her husband suing derivatively, commenced suit against the Village and others.  The Village appealed the denial of their summary judgment motion.
 
A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a defective or dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies. An exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence. To establish its entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, that it did not have prior written notice of the alleged hazardous condition that allegedly caused Levy's fall and that it did not create the alleged hazardous condition. The Appellate Court found the Village demonstrated, prima facie, that it did not have prior written notice of the alleged hazardous condition. However, the Village failed to address the plaintiffs' allegation that it affirmatively created the alleged hazardous condition. Hence, the Village failed to meet its initial burden as the movant. The motion was properly denied.
 

03/31/21          Richards v. Starbucks Corporation
Appellate Division, Second Department
Photographs and testimony can establish a defect as triviable not a trap and therefore not actionable.

In December 2017, the plaintiff Karen Richards, and her husband, the plaintiff Daniel Richards, suing derivatively (hereinafter together the plaintiffs), commenced this action to recover damages for personal injuries the plaintiffs allege Karen Richards sustained when she fell in March 2017 in a coffee shop in Westbury owned and operated by the defendant Starbucks Corporation (hereinafter Starbucks). According to the plaintiffs, Karen Richards tripped and fell over a transition strip at the door to the bathroom as she exited that bathroom. The plaintiffs allege that Starbucks and the defendant Piece Management, Inc. (hereinafter Piece), the general contractor that tiled the floor at that location, were negligent in, among other things, creating the dangerous condition and maintaining the premises.

On appeal of the grant of each of the defendant’s summary judgment motion the Appellate Division held that although the issue of whether a dangerous or defective condition exists depends on the facts of each case and generally is a question of fact for the jury, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip.
 
In determining whether a defendant has established that an alleged defect is trivial as a matter of law, the court must examine all of the facts presented, including the "'width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury. A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. Here, Starbucks and Piece established their respective prima facie entitlement to judgment as a matter of law by submitting, inter alia, photographs of the alleged defect, as well as a transcript of Karen Richards's deposition testimony describing the time, place, and circumstances of the injury. This evidence established, prima facie, that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable.

 
03/25/21          Smith v. Montefiore Medical Center
Appellate Division, First Department
Testimony as to general cleaning procedures insufficient to demonstrate lack of constructive notice of a defect condition at a specific location.

Plaintiff alleges that he slipped and fell on dirty ice at the bottom of a pedestrian ramp near the entrance to the emergency room of defendant's facility. Defendant contended that the area was protected from the elements by an overhang. One of defendant's witnesses stated that the only time he ever saw snow and ice on the pedestrian ramp in his 48 years of employment by defendant was after massive snowstorms and he never saw snow and ice at the spot where plaintiff stated he slipped and fell. Defendant's other witness stated that in his 13 years of employment, he never saw snow and ice in that area. Defendant's witnesses testified to its general snow and ice removal procedures, but neither had a specific memory of the condition of the area where plaintiff slipped and fell prior to the accident or when it was last inspected.
 
Plaintiff's experts noted that climatological data indicated that it had snowed the day before the accident, five inches of snow was on the ground, the temperature never went above freezing from the time of the snowstorm until the time of the accident and that there were wind gusts of between 30 and 35 miles per hour at the time of the accident. They opined that there were numerous areas under the overhang that were exposed to outdoor conditions and that blowing and drifting snow could enter in some locations and cause slippery conditions.
 
The Appellate Court found defendant’s motion for summary judgment was properly denied. Defendant failed to sustain its initial burden of demonstrating the lack of constructive notice by producing evidence of its maintenance activities and inspection of the area prior to the accident, and specifically that the dangerous condition cited by plaintiff did not exist when the area was last cleaned or inspected before plaintiff's fall. A showing of general cleaning procedures is insufficient to satisfy the burden of demonstrating the lack of constructive notice of the condition prior to the accident.
 
Defendant argued that it does not maintain such records because the area was not exposed to the elements. However, plaintiff presented expert testimony disputing that contention, and one of defendant's witnesses admitted to having seen snow on the pedestrian ramp on rare occasions. In any event, even if we were to find that defendant had sustained its initial burden, plaintiff presented sufficient evidence to raise a triable issue of fact as to whether there was dirty ice at the bottom of the pedestrian ramp and as to defendant's constructive notice of the condition based on plaintiff's testimony and his experts' affidavits.

 
03/23/21          Correa v. Mana Construction Group, Inc.
Appellate Division, First Department
Plaintiff failed to establish the city had prior written notice of defective condition with uneven cracked broken manhole.

Plaintiff's notice of claim, 50-h testimony, complaint, and verified bill of particulars alleged that she was injured when she tripped and fell on an "uneven, cracked, broken manhole" cover. For the first time in her opposition papers to the City’s motion for summary judgment, plaintiff claimed that an unleveled and cracked sidewalk caused the trip-and-fall accident. Since plaintiff did not amend her complaint, the Appellate Court found the lower court properly declined to consider the new allegation.
 
The City established its prima facie entitlement to summary judgment by establishing that it lacked prior written notice of the alleged defective condition of the manhole cover, which is a condition precedent to liability for personal injuries sustained as a result of alleged roadway defects. The record was silent as to any written notice of a defective or depressed manhole cover at the location where the accident is alleged to have occurred. Plaintiff failed to meet its burden to demonstrate that a question of fact existed regarding the City's receipt of prior written notice, or that an exception to the notice requirement applied. Plaintiff submitted no proof to raise a triable issue of fact as to whether the City created or caused the defective condition.
 

03/23/21          Abraham v. Dutch Broadway Associates LLC
Appellate Division, First Department
Defendant’s manager’s occasional visits was not specific evidence of an inspection such that plaintiff’s claim of constructive notice was not defeated.

In this trip-and-fall action, plaintiff testified at his deposition that he fell on the sidewalk of a shopping center owned by Dutch, when his right foot came into contact with rolled-up carpets in front of a store, causing him to stumble, and that his other foot then got caught in an uneven crack in the sidewalk. The Appellate Division held the trial court properly found that Dutch had no notice of the carpets.
 
However, there are issues of fact as to whether defendant had constructive notice of the sidewalk defect, whether the defect was trivial, and whether it proximately caused plaintiff's fall. Defendant failed to offer specific evidence as to when the sidewalk was last inspected, relying only on vague testimony concerning the manager's occasional visits to the shopping center. Plaintiff's submission of photographs depicting the height differential in the raised sidewalk flag to be about one inch also raised an issue of fact as to whether the defect was nontrivial. While plaintiff testified that he first tripped on the rolled-up carpets before coming into contact with the sidewalk defect, there can be more than one proximate cause of an accident. 
 

03/18/21          Benny v. Concord Partners 46^th Street LLC
Appellate Division, First Department
Defendant hosing down the sidewalk on cold day created the defective condition.

Plaintiff alleges that he slipped on an icy condition on the sidewalk and injured his back in an attempt to not fall, during his employment as an emergency medical technician (EMT), while transporting a patient from the sidewalk to the ambulance.
 
In moving for summary judgment on the issue of liability, plaintiff argued that he was not negligent under the "danger invites rescue" doctrine. "Under the 'danger invites rescue' doctrine, there exists a duty of care toward a potential rescuer where a culpable party has placed another person in a position of imminent peril which invites a third party, the rescuing plaintiff, to come to the aid of the imperiled person. The doctrine applies where a potential rescuer reasonably believes that another is in peril, which determination is made on the facts and circumstances of each case. Contrary to plaintiff's argument, the Appellate Division found he failed to show that the doctrine applied here. There was no evidence that plaintiff was unable to see and avoid the slippery condition on the basis that the patient was endangered if she was not transported immediately to the hospital.
 
Although plaintiff was unable to show that the rescue doctrine applies, he was entitled to partial summary judgment on the issue of defendants' liability. To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault. Moreover, plaintiff is not required to show that defendants' negligence was the sole proximate cause of the accident to be entitled to summary judgment. The evidence plaintiff submitted in support of his motion shows that defendants-tenants Havana Central NY 2 LLC d/b/a Havana Central Restaurant & CafÉ (Havana) and Tintol LLC d/b/a Clubhouse CafÉ (Tintol) created the dangerous condition when their employees hosed the sidewalk on a cold winter day. Defendants-owners Concord Partners 46th Street LLC (Concord) and Elo Equity, LLC, had a non delegable duty to maintain the sidewalk. Elo had notice that the restaurant employees had created a dangerous condition, because Elo's superintendent had observed the restaurants' employees hosing the sidewalk. The property manager for Concord did not personally observe the restaurant employees hosing down the sidewalk on the date in question; however, he testified that it was the general practice to hose down the sidewalk at approximately 7:30 a.m. In opposition, defendants did not raise a question of fact with respect to the issue of their liability. Defendant restaurants admit that the evidence shows that their employees hosed the sidewalk with water before the incident occurred.
 

03/17/21          Rivera v. City of New York
Appellate Division, Second Department
Issue of fact as to whether contractor created defective condition or the sidewalk was already cracked.

On February 13, 2015, the plaintiff allegedly was injured after tripping and falling on a cracked and uneven sidewalk located in front of 1123 Sutter Avenue in Brooklyn. The plaintiff subsequently commenced action against the City of New York and the New York City Department of Transportation (hereinafter together the City defendants), as well as the adjacent property owner, Sutter 1123, LLC (hereinafter Sutter), and the defendant J. Pizzirusso Landscaping Corp. (hereinafter JPL). In its answer, Sutter asserted cross claims against the City defendants and JPL, alleging that they were solely responsible for creating the dangerous condition alleged in the complaint.
 
The Appellate Division held failed to establish its prima facie entitlement to judgment as a matter of law. Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, Section 7-210 does not shift tort liability for injuries proximately caused by the City's affirmative acts of negligence.  Similarly, a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk.
 
The record showed that, several weeks before the accident, the City retained JPL to dig a tree pit in the sidewalk adjacent to Sutter's property. However, the evidence submitted by Sutter in support of its motion presents triable issues of fact as to whether the sidewalk was already chipped and/or cracked before JPL commenced its work. Thus, Sutter failed to demonstrate, prima facie, that the alleged dangerous condition that caused the plaintiff to fall was created solely by JPL's affirmative negligence.
 

03/17/21          Theard v. G. Fazio Construction Corp.
Appellate Division, Second Department
Case was dismissed where plaintiff estate was unable to establish how decedent fell on sidewalk.

On February 2, 2015, Emmanuel Theard (the decedent) allegedly sustained injuries when he tripped and fell on a sidewalk abutting premises owned by the defendants St. Mary Magdalene Parish and Roman Catholic Church Diocese of Brooklyn, N.Y., and managed by the defendant Rocklyn Asset Corp. (hereinafter collectively the Church defendants). The decedent subsequently died. The plaintiff, the decedent's wife, and the administrator of his estate, commenced this action against the Church defendants and another defendant, inter alia, to recover damages for the decedent's conscious pain and suffering and wrongful death.
 
The Appellate Division noted in a premises liability case, a defendant property owner moving for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of his or her accident without engaging in speculation. Although proximate cause can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury, mere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action.
 
Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused an accident, any determination by the trier of fact as to causation would be based upon sheer speculation. A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on. A plaintiff's inability to establish the cause of his or her fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence. The case was dismissed as the plaintiff was unable to identify the cause of the decedent's fall.

 
03/11/21          Shamilova v.Berkowitz
Appellate Division, First Department
Defendant abutting owner failed to show as a matter of law she was entitled to the single family homeowner exemption in the New York City Code because at the time of the accident she rented out her garage to store business equipment and display a sign.

Plaintiff's decedent,  Khava Shamilova (Shamilova), was exiting a vehicle when she slipped and fell on ice as she stepped onto the sidewalk that either abutted or was part of the property owned by defendant Elissa Berkowitz. It is undisputed that defendants Lieberman Trust (Lieberman), Judith and Solomon Sabo (collectively Sabo) and Yeshiva Shaare Torah, Inc. (Yeshiva) (collectively the easement holders) had an easement consisting of a driveway traversing a sidewalk. The easement led into a gated lot where Lieberman and Sabo kept vehicles and their garages, and which allowed Yeshiva egress for an emergency exit from their building. Plaintiff's theory of liability against Berkowitz is that either as owner of the sidewalk or owner of the property abutting the sidewalk where Shamilova fell, Berkowitz had a duty to maintain the area. The theory of liability against the easement holders is that Shamilova fell on the easement which the easement holders had a duty to maintain.
 
The easement holders proved prima facie that they did not have a duty to maintain the portion of the sidewalk where Shamilova fell. In identifying the location of the easement, they provided the deeds describing the location of the easement as well as corroborating affidavits detailing their use and understanding of the easement, which were consistent with the deeds. They depicted the location of the easement on photographs. The proof provided was sufficient to demonstrate that the easement included ten feet of the driveway located directly in front of the rolling gate which provided entry into the parties' shared parking lot/exit. The easement holders also demonstrated that Shamilova fell on a portion of the sidewalk which was located to the west of the rolling gate and not part of the easement. They relied on Shamilova's sworn affidavit, made before she died, as well as the testimony of Shamilova's brother and son who were eyewitnesses to the accident. All three of them marked photographs of the area, which placed the location of Shamilova's fall as being west of the easement. In opposition, plaintiff failed to raise a triable issue of fact on either the location of the easement or the location of her fall. Because the easement defendants neither owned property abutting the relevant portion of the sidewalk nor did Shamilova fall on the easement, no liability may be imposed.
 
Berkowitz, however, was not entitled to summary judgment dismissing the case. Berkowitz admitted that she was the abutting landowner to the public sidewalk on which Shamilova fell. Consequently, unless she was exempt from the statutory liability imposed by Administrative Code of the City of New York because her property was used as a single-family residence, she had a duty to maintain that sidewalk (Administrative Code § 7—210[a], [b]). Berkowitz's deposition testimony showed that at the time of the accident, she was allowing someone to use her garage to store business equipment and display a sign. She subsequently requested that the sign and equipment be removed from her garage because it looked like a business was operating there. It is not clear on this record that the sign and equipment were uses incidental to the residential use of her property. Therefore, she failed to eliminate issues of fact regarding whether her property was used exclusively as a single-family residence.
 

03/10/21          Izgelova v. 97-49 63^rd Drive, LLC
Appellate Division, Second Department
Defendant can only be liable for a dangerous condition if they own, occupy, control or make special use of the property.

The plaintiff commenced this action to recover damages for personal injuries that she alleges she sustained when she tripped and fell on a defective sidewalk outside certain premises in Queens.  Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none of those elements are present, generally a party cannot be held liable for injuries caused by the dangerous or defective condition of the property. The defendants' submissions failed to establish as a matter of law that they did not occupy, control, or put to a special use the sidewalk where the defect which allegedly caused the plaintiff to fall was located.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
 

Welcome to Pushing Buttons: The Ups & Downs of Vertical Transportation Law.  This is my new column in Premises Pointers.  As the newest attorney at Hurwitz & Fine, P.C., I was thrilled to be given this opportunity.  I look forward to bringing you monthly updates and pointers on recent elevator and escalator decisions in New York State.  
 
I would be remiss if I didn’t begin by mentioning my alma mater, the University of Massachusetts - Amherst, won its first Men’s Hockey National Championship defeating St. Cloud State University 5-0.  Congratulations Minutemen!  “You were.  You are.  UMASS.”  
 
This month’s vertical transportation cases have little in common in an otherwise quiet month.  The first is an update on a prior decision.  The building’s elevator maintenance provider moved to reargue the denial of its summary judgment motion.  A motion to reargue respectfully asks the court to review facts or law presented that may have been overlooked or misapprehended by the court.  (See CPLR § 2221(d)(2).)  The First Department did not agree.  In the second case, the Court saw through feigned facts presented in an affidavit by Plaintiff’s husband. 
 
I hope you enjoy the ride. 
 
Scott

 
3/16/2021                    Sanchez v. 1067 Fifth Ave. Corp., et. al. 
Appellate Division, First Department
Elevator maintenance provider’s summary judgment motion denied under Espinal and affirmed on appeal.  The First Department granted re-argument.
 
***This is an update to a case first decided December 8, 2020.***
 
Plaintiff was exiting a service elevator at 1067 Fifth Avenue, when the inner gate of the elevator closed on her.  Plaintiff alleged the abrupt closing pinned her shoulder between the gate frame of the door.  As the elevator descended to the first floor, Plaintiff injured her shoulder, neck and back while pulling her arm free of the gate.  
 
Defendants, 1067 Fifth Avenue Corp. (“Owner”) and Elliman Property Management (collectively, “Building Defendants”), retained Defendant American Elevator Machine Corp. (“American Elevator”) to perform maintenance on the building’s elevators.  The Building Defendants also hired John A. Van Deusen & Associates, Inc. (“VDA”) to consult on an elevator modernization project.   The Building Defendants moved for summary judgment under two theories: (1) no actual or constructive notice of the defect; and (2) res ipsa loquitur did not apply. The motion was denied.  Building Defendants appealed.  
 
On appeal, the First Department, found that Plaintiff failed to establish an issue of fact whether the Building Defendants had actual or constructive notice of the defect that caused her injury.  The building’s superintendent received no prior complaints, and American Elevator’s mechanics had no prior knowledge of a similar condition.  As to Plaintiff’s res ipsa argument, the First Department found no genuine dispute whether the accident was one that does not ordinarily occur in the absence of negligence or whether Plaintiff contributed to her injuries.  (See Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 846 [1997]).  However, the final requirement (the accident must be caused by an agency or instrumentality within exclusive control of the defendant) was not met, since the Building Defendants ceded control of all maintenance and repair responsibility to American Elevator and VDA.  (See Levine v. City of N.Y., 67 A.D.3d 510, 888 N.Y.S.2d 55 [1st Dep’t 2009]).  The First Department reversed the trial court’s decision and granted the Building Defendants summary judgment. 
 
American Elevator moved for summary judgment arguing res ipsa did not apply, since its contract was with the Owner and not intended to benefit Plaintiff.  The motion was denied.  On appeal, the Court held that given such broad contractual responsibilities, American Elevator’s contract can be said to have “entirely displaced” the responsibility of the Building Defendants to maintain the safety of the building’s elevators, which gave rise to a duty owed directly to Plaintiff. (See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 123 [2002]).  The First Department affirmed the denial of American Elevator’s motion.  
 
In an Order dated March 16, 2021, the First Department granted American Elevator’s request for reargument.  The December 8, 2020 Order was recalled and vacated, and a new decision was substituted.  Upon reargument, the First Department maintained its position believing no fact or law was overlooked or misapprehended in determining the prior motion.  The First Department denied that branch of American Elevator’s motion seeking leave to appeal to the Court of Appeals.  Motion denied.  
 

4/6/2021                      Santapau v. Brownstone Too Condo, et. al. 
Appellate Division, First Department
Defendants entitled to summary judgment where only evidence of a mis-level was fabricated solely to avoid dismissal.
 
Plaintiff alleged that she tripped and fell while exiting a mis-leveled elevator at 310 West 120th Street, New York, New York.  Plaintiff was injured when she slipped on the grate of an elevator and the toe of her ankle boot became lodged in the gap between the lobby floor and the elevator cab.  Defendants dispute any mis-level, but further contend they had no notice of a defective condition.  The trial court denied all Defendants’ motions.  Defendants appealed. 
 
Defendants Brownstone Too Condo, Brownstone Too Condominium Association and Maxwell-Kates Inc. (the “Building Defendants”) established they had no actual or constructive notice of a hazardous condition in the elevator.  In support of their motion, the Building Defendants proffered testimony of their porter/doorman that he rode the elevator multiple times on the date of the accident and never observed a mis-level.  He further testified having mopped the floor that morning, inspected the elevator area immediately post-accident, and saw no wetness or mis-leveling at the accident location.  The Building Defendants also submitted an affidavit of their superintendent confirming his staff conducts daily inspections of the lobby and elevator and never reported any history of wetness or mis-level.  
 
Defendant, Rotavele Elevator Inc. (“REI”), was hired by the Building Defendants to service and maintain the building’s elevators.  REI moved for summary judgment.  REI produced surveillance footage showing Plaintiff’s fall was not caused by a defective leveling condition.  Evidence of Plaintiff’s own testimony was also submitted.  Plaintiff testified she did not see a mis-level prior to or following her fall that would have created any hazardous height differential.  
 
The only evidence produced by Plaintiff in opposition was an affidavit submitted by her husband.  The affidavit stated for the first time that he saw a one-and-a-half-inch height differential between the floor of the elevator cab and the lobby.  The trial court incorrectly believed that the affidavit raised a question of fact.  However, the First Department found this affidavit to contradict Plaintiff’s testimony and the surveillance video and was “plainly tailored to avoid dismissal of the action.”  (Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 324, 819 N.Y.S.2d 250, 254 [1st Dep’t 2006], aff’d 8 N.Y.3d 931, 834 N.Y.S.2d 503 [2007]).  The Court in reviewing the surveillance video concluded that Plaintiff’s husband never looked down at the floor while exiting the elevator and thus could not have seen any alleged defective condition.  The First Department is seemingly unwilling to accept fabricated facts to avoid a dismissal.  Even when the “facts” raise triable issues for jury determination.  This decision sends the message that courts should not condone fact creation at the 11th hour.  The First Department reversed the trial court and Defendants’ motions were granted.

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