Premises Pointers - Volume IV, No. 12

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:

Last week marked the anniversary of my first year as Managing Partner of Hurwitz & Fine. It’s hard to believe an entire year has passed already! Like many of us, I am ready to put last year in the rearview mirror. Before turning the page, I want to thank our attorneys and staff at Hurwitz & Fine who all played a very important role in helping us navigate the uncertainty of COVID and provide uninterrupted service to our clients. While we undeniably had bumps along the way, we were able to bounce back and move forward. And as we look ahead, I am very excited about this year because it’s finally starting to feel like there’s a change in the air and the possibility of returning to some of the things I know we have all missed.
 
This issue of Premises Pointers features a brand-new quarterly column from our Automobile Liability team. This new column will focus on trucking litigation, serious injury and catastrophic injury claims. In this edition, attorney Brian M. Webb provides a short Automobile Liability primer, which highlights several of the key issues to keep in mind when analyzing motor vehicle claims that are venued in New York State.
 
One of the biggest recent developments in the legal world is the legalization of marijuana. With NYS Governor Cuomo recently signing the “Marijuana Regulation and Taxation Act (“MRTA”)”, our Cannabis Law team has been hard at work presenting around WNY on key features of the law, employment law considerations, and the impact of marijuana on the construction industry. If you are interested in one of their upcoming presentations, please send me an email! You can also contact practice group leader Amber Storr.
 
As many of you know, diversity, inclusion & equity has always been an important focus for me. Within the past year, we have re-launched our Diversity & Inclusion Committee, and provided firmwide training, guest speakers and programming. With this important issue at the forefront of so much of what we do, I will be joining Business First as a featured panelist in their upcoming “Diversity & Inclusion” panel. We will be discussing best practices, diversity in the workplace and engagement and retention. All are welcome to register.
 
Lastly, I’d like to congratulate our own Premises Pointers School Litigation columnist, Anastasia McCarthy, who was recently elected to the role of President-Elect of the WNY Chapter of the Women's Bar Association of the State of New York. Congratulations to Anastasia for all of her hard work!

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]

4/30/21            Arghittu-Atmekjian v. TJX Companies, Inc.
Appellate Division, Fourth Department
Judgment of lower court reversed because defendant failed to meet its initial burden of establishing that it did not have constructive notice of the water on the floor.
 
Plaintiff brought this action to recover damages for injuries she allegedly sustained when she slipped on water inside a store owned by Defendant. Defendant moved for summary judgment dismissing the complaint, which the Supreme Court granted. Plaintiff appealed. On appeal, the Court noted that Plaintiff had briefed only on the issue of constructive notice, therefore abandoning any claims that Defendant had actual notice of or created the dangerous condition. The Court then addressed the issue of constructive notice, finding that the lower court erred in granting the motion with respect to the claim that Defendant had constructive notice. Citing Lewis v. Carrols LLC, 9158 A.D.3d 1055, 1056, (4^th Dept. 2018), the Court stated that a Defendant cannot satisfy its burden by pointing out gaps in the plaintiff’s case and instead “must submit evidence concerning when the area was last cleaned and inspected prior to the accident.” Defendant had submitted evidence that it hired a contractor who was generally expected to clean up hazards, such as water on the floor, but it did not submit evidence establishing when the area of Plaintiff’s fall was last inspected. The Court found this left a triable issue of fact as to when the area of Plaintiff’s fall was last inspected in relation to the accident and whether the alleged hazardous condition existed for a sufficient length of time prior to the accident to permit Defendant to remedy the condition. Additionally, the Court noted that the fact that Plaintiff did not notice water on the floor prior to her fall did not establish Defendant’s entitlement to judgment as a matter of law on the issue of whether the condition was visible and apparent. The Court found that Defendant failed to meet its initial burden regarding constructive notice and thus its motion should be denied.
 
The Court also found that Defendant failed to meet its burden on its alternative ground for dismissal, based on a storm in progress theory. Plaintiff had not expressly stated that it was snowing at the time she entered the store, and therefore it could not be said that Defendant established as a matter of law that there was a storm in progress. In opposition to Defendant’s motion, Plaintiff had submitted a record of the weather from the date of the incident showing that there was only a trace amount of snowfall in the area of the store. The Court determined that this created an issue of fact as to whether there was a snowstorm in progress when Plaintiff entered the store.
 
 
4/27/21            Jane Doe v. Turnmill LLC et al
Appellate Division, First Department
Court reversed Supreme Court’s decision granting Defendants’ motion for summary judgment in negligent security lawsuit against property owner.
 
Plaintiff brought an action to recover damages she sustained after she was raped in the basement restroom of a building owned by Defendant Harvard and leased to Defendant Turnmill for use as a bar/restaurant. Defendants established prima facie that they were not liable for Plaintiff’s injuries by submitting evidence that there was no breach of security protocol at the time of Plaintiff’s attack, and that even if a security guard had been on duty at the bar/restaurant at the time of the incident, there is no evidence that a guard could have done anything to prevent the attack.
 
In opposition to Defendants’ motion, Plaintiff raised an issue of fact by pointing to evidence that Defendant Harvard was aware of another assault at a bar owned by the same family and located only a few blocks away from Turnmill. Additionally, Plaintiff submitted a detailed expert affidavit indicating that the bar/restaurant was located in a high crime area, and that the security employed was both inadequate and a deviation from reasonable security standards. Plaintiff also relied on the testimony of Defendant Turnmill’s managing agent who stated that three cameras and a new surveillance system had been installed in the premises the year prior to the attack on Plaintiff, but no camera had been installed in the basement area near the restrooms. He had then purchased 10 additional security cameras that same year that he intended to install in the basement and directly outside the women's bathroom, but they had not yet been installed at the time of the attack on Plaintiff. According to plaintiff's expert, had those cameras been installed, Plaintiff’s assailant would have been deterred from attacking Plaintiff.

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

Dear Readers,
 
Happy spring! My household is finally vaccinated and returning to the world—feel free to call me at the office from here on out! This month I bring you two negligent supervision cases that really highlight the bottom line—establishing that the allegedly deficient supervision is not the cause of plaintiff’s injuries.


04/14/21          I.S. v. Hempstead Union Free School District
Appellate Division, Second Department
Defendant District entitled to summary judgment where it establishes that more supervision would not have prevented an incident between students and that a lack of supervision was not the proximate cause of the plaintiff’s injuries.
 
Plaintiff, a fourth grade student standing outside with his friends during recess, was pushed by a classmate and fell.  His father filed suit on his behalf.  Defendant moved for summary judgment arguing that the alleged negligence supervision was not the proximate cause of plaintiff’s injuries.  The Appellate Division held that the District established its entitlement to judgment as a matter of law by demonstrating that its alleged negligence was not the proximate cause of plaintiff’s injuries and that the incident occurred so quickly that a greater degree of supervision would not have prevented it. 
 

04/30/21          Zalewski v. East Rochester Board of Education, et al.
Appellate Division, Fourth Department
Defendant school district defendants fail to establish prima facie entitlement to summary judgment in case of gym class injury where teacher’s testimony raises questions of fact rather eliminate them.

Plaintiff filed suit after sustaining injuries during a water polo match played during physical education class.  More particularly, plaintiff struck his head on the bottom of the school swimming pool after colliding with a classmate.  Plaintiff alleged that defendants negligently supervised and directed the students in the pool and ultimately allowed them to engage in an inappropriate and dangerous activity.
In affirming the trial court’s denial of the defendants’ motion for summary judgment, the Fourth Department held that the school district defendants ultimately failed to meet their prima facie burden because their own submissions raised triable questions of fact about the district’s supervision of students in the pool and proximate cause.  The Court drew particular attention to the testimony of the plaintiff’s P.E. teacher, who testified that he modified the normal rules of water polo to prevent contact, but did not consistently enforce those rules and instead allowed the students to make physical contact with one another. A question of fact therefore also existed with respect to defendants’ notice of dangerous conduct similar to that which ultimately caused the injuries and with regard to whether that conduct was preventable.

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

Greetings Subscribers!
 
You know Spring is here when the H&F softball team begins its season. I enjoyed the time off last season to rest and recover from injuries, but this week is the first game of the season (weather permitting)! With 12 teams in the league this year, our goal is the same as it is every year: to make the playoffs, although I cannot recall the last time we did.
 
This month, I report on the Louise v Hampton Jitney case, which gives us a few practice pointers. Not only must you timely disclosure your experts, but you also need to ensure the basis of their expert testimony is premised on admissible evidence. In Louise, the First Department precluded defendant’s expert and his report because it was based on new evidence not previously disclosed. If you happen to obtain new evidence, make sure you disclose it immediately and document your file as you will likely have to explain the circumstances involved in how you obtained it. Please drop us a note if you wish to discuss this issue or if you are interested in webinars or training on what to do with using newly obtained evidence in your case as we are here to assist you with your discovery “situations.”
 
Until next time…
 
Marc
 
 
04/13/21          Louise v Hampton Jitney, Inc.
Appellate Division, First Department
Defendant not entitled to use evidence that formed the basis for his expert’s report at trial because he willfully failed to respond to discovery demands and comply with discovery orders, coupled with inadequate excuses for those defaults.
 
The trial court granted plaintiff’s motion for discovery sanctions to the extent of precluding defendant’s expert from testifying at trial or the use of his report. The First Department unanimously affirmed. Preclusion of expert evidence on the ground of failure to give timely disclosure, under CPLR § 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion.
 
Defendant in this case served its expert notice after the note of issue, but prior to a trial date being set, and thus was not untimely. However, the issue is that defendant’s expert reached his conclusion regarding the alleged accident by relying nearly entirely upon evidence that had been demanded during discovery and directed to be exchanged in several court orders, the existence of which defendant denied.
 
Defendant did not attempt to clarify its initial response, advise the trial court or plaintiff when it obtained the material, or explain why it did not update plaintiff’s counsel immediately upon his receipt (see Oversea Chinese Mission v Well-Come Holdings, Inc., 145 AD3d 634, 42 NYS3d 818 [1st Dept 2016]). Accordingly, the First Department held that under the circumstances, the trial court was well within its discretion to preclude the material, and by extension, the expert, and his report.
 
 
04/29/21          ZDG LLC v 310 Group LLC
Appellate Division, First Department
Defendant’s “substantial compliance” with deadlines in a conditional order of dismissal two months after the deadline did not constitute a reasonable excuse for its default in complying with several prior orders to provide discovery responses by certain dates.
 
The trial court denied defendants’ motion for renewal with respect to a prior order that sua sponte struck defendant’s answer and third-party complaint for failure to comply with several earlier orders, including a conditional order of dismissal. The trial court struck defendant’s pleadings after hearing from the parties on its noncompliance with the condition order.
 
The First Department unanimously affirmed, finding the trial court providently exercised its discretion in denying defendant’s motion for renewal. The condition order required defendant to provide discovery responses by certain dates and stated that failure to provide discovery as required “will result” in its answer and third-party complaint being struck.
 
Defendant did not submit new facts on renewal requiring a different result. Although defendant strenuously argued it was in “substantial compliance” with the deadlines set forth in the conditional order within two months after the deadline, the First Department held the trial court acted within its discretion in enforcing the conditional order strictly, considering that discovery remained outstanding well after the deadline and that defendant did not offer a reasonable excuse for its default.

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

Dear Readers,
 
Welcome to another edition of Premises Pointers.

We have many cases this day involving assumption of risk with a sporting event you are participating in; storm in progress; constructive notice to landowners; constructive notice as to an icy condition; and issues relating to what kind of proof one has to submit to succeed on summary judgment for lack of constructive notice. I hope there is a case that is instructive to you. I am always available to discuss.
 
Until next time,
 
Rob

 
May 06, 2021 Barreto v. 750 Third Owner, LLC
Appellate Division, First Department
General awareness that floor could become wet during bad weather was not sufficient to give constructive notice.

The appellate division held defendants established prima facie that they did not have actual or constructive notice of the water on their lobby floor that plaintiff alleges caused her to slip and fall. Their property manager stated in an affidavit that she conducted a search of defendants' records for complaints about water on the lobby floor between January 1, 2015 and July 14, 2015, the date of plaintiff's accident, and found none except for the complaint made by plaintiff after she fell.
 
Importantly, the Court found that someone fell in the lobby while it was raining after stepping off a mat about a year before plaintiff's accident did not raise an issue of fact as to whether defendants had actual notice of the water that caused plaintiff to fall. Plaintiff's own testimony established prima facie that defendants did not have constructive notice of water on the lobby floor; she testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell. A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff's fall.

 
05/05/2021      Ellis v. Sirico’s Catering, Inc.
Appellate Division, Second Department
Defendant failed to establish any lack of constructive notice when they failed to submit any evidence as to specific cleaning of area in question.

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Constructive notice of a hazardous condition exists when the condition is visible and apparent and has existed for a sufficient length to time to allow the defendant a reasonable opportunity to discover and remedy it. To meet its initial burden on lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.   Further, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation.
 
Here, the defendants failed to demonstrate, prima facie, that they lacked constructive notice of the alleged dangerous condition on the dance floor so as to establish their entitlement to judgment as a matter of law. The defendants did not submit any evidence regarding specific cleaning or inspection of the area in question, or any other affirmative proof to demonstrate how long the condition had existed. In support of their motion, they submitted the transcript of the deposition testimony of Hercules Sirico, the catering hall owner, who testified that the wood dance floor would be cleaned on an as-needed basis by one of the porters, of whom he was in charge. Sirico also testified that, on the night of the subject party, he entered the ballroom where the party was being held multiple times to make sure that members of his staff were doing things properly but did not stay in the ballroom during the entire party. Although Sirico testified that, while he was in the ballroom, he always took a look at the dance floor and did not notice any wetness or liquids on it, he also testified that every time he was in the ballroom, the dance floor was always packed, with more than 100 people dancing, that guests would get drinks at the "constantly busy" mobile bar situated just "shy" of the dance floor, and bring the drinks onto the dance floor, and that no one stopped or warned the guests from doing so. Further, the defendants submitted the transcript of the plaintiff's deposition testimony, during which the plaintiff testified that when he went to dance, he was slipping and sliding on the dance floor because it was wet, that there were a lot of people on the dance floor with drinks, and that it was "very dark" in the ballroom.
 

05/05/21          Anderson v. United Parcel Serv. Inc.
Appellate Division, Second Department
Issue of fact as to whether ice condition was visible and apparent and existed long enough before accident to give sufficient notice.

At approximately 1:26 a.m. on January 1, 2011, the plaintiff, while working as a security guard for Adelis, allegedly slipped and fell on a patch of ice at the Uniondale facility of defendant UPS.  The Appellate Division set forth the standard that a defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition.  Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
 
A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.   Mere reference to general cleaning and inspection practices is insufficient to establish a lack of constructive notice.
 
UPS failed to submit any evidence concerning the condition of the subject area after it had been cleared of snow and ice on December 29, 2010, or within a reasonable time prior to the plaintiff's fall on the morning of January 1, 2011. UPS submitted evidence demonstrating that it ceased all snow removal efforts on December 29, 2010, in relation to a storm that dropped a significant amount of snow, and that the area where the plaintiff fell was free of ice at that time. However, it submitted no evidence as to when the area was inspected again between December 29, 2010, and the time of the plaintiff's accident more than two days later. Under the circumstances, triable issues of fact exist including whether the alleged ice condition that caused the plaintiff to slip and fall was visible and apparent, and whether it had existed for a sufficient length of time before the accident such that UPS could have discovered and corrected.  
 

04/30/21          Smith v. Montefiore Medical Center
Appellate Division, Fourth Department
Defendant had general contractor to clean up hazards but failed to show when property last inspected

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped on water inside a store owned by defendant. To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. A defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff's case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident. The Court noted while defendant submitted evidence that it hired a contractor who was generally expected to clean up any hazards, such as water on the floor, it did not submit evidence establishing when the area of plaintiff's fall was last inspected. As a result, a triable issue of fact existed as to when the area of plaintiff's fall was last inspected in relation to the accident and, thus, whether the alleged hazardous condition existed for a sufficient length of time prior to the incident to permit defendant to remedy that condition. Furthermore, the fact that plaintiff did not notice water on the floor before she fell does not establish defendant's entitlement to judgment as a matter of law on the issue whether that condition was visible and apparent. The failure of defendant to meet its initial burden on the motion regarding the issues related to constructive notice required denial of the motion, regardless of the sufficiency of the opposing papers.
 
Defendant also failed to meet its burden on its alternative ground for dismissal, which was based on a storm in progress theory. Plaintiff did not expressly state that it was snowing at the time she entered the store, and thus it cannot be said that defendant established as a matter of law, based on that deposition testimony, that there was a storm in progress.   In opposition, plaintiff submitted a record of the weather showing that there was only a trace amount of snowfall in the area of the store on the day in question, and thus there was an issue of fact.
 

04/30/21          Stempien v. Gregg K. Walls and Mary E. Walls
Issue of fact as to whether a fall hazard from sea wall at top of cliff in unlit area was open and obvious.

Plaintiff commenced this premises liability action seeking damages for injuries he sustained when he fell 15 feet from the top of a seawall while attending a party at defendants' lakefront vacation home. Plaintiff alleged that the accident occurred at the unguarded and unlit rear northwest corner of the property and that defendants failed to, inter alia, put up a barrier, properly illuminate the area, or correct or warn of the dangerous condition.
 
On the night of the incident, around 11:00 p.m., plaintiff discovered that the downstairs bathroom in the house was occupied, and he exited the house and proceeded toward the back right corner of the property, intending to relieve himself near some bushes. Defendants' backyard is approximately 20 feet above the lake, separated by a natural cliff that runs along the shoreline. Built into the face of the cliff is the 15-foot-high seawall, which consists of two levels, with an upper and a lower platform, and a cement staircase built into the center of the seawall that permits access from the backyard to the lower platform. Defendants' backyard includes a cement sidewalk that leads to the top of the seawall's staircase. Plaintiff fell off the seawall down to the beach below and sustained various injuries.
 
The Appellate Division determined that defendant’s motion for summary judgment must be denied. It held it is well settled that a landowner has a duty to exercise reasonable care in maintaining their property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it. The Appellate Division concluded that defendants failed to meet their initial burden on their motion of establishing that the cliff, together with the manmade seawall, constituted an open and obvious condition inherent or incidental to the nature of the property that could be reasonably anticipated by plaintiff. The issue whether a condition is open and obvious is generally fact-specific and depends on the circumstances of the case, and "something that ordinarily would be readily observable may be obscured by inadequate illumination."   Here, defendants failed to eliminate all triable issues of fact whether the alleged hazard posed by the cliff and seawall, given the lighting conditions at the time of the accident, was visible and obvious or presented a latent, dangerous condition.
 

04/30/21          Marrero v. Oak-Michigan Hous. Dev. Fund Co. Inc.
Appellate Division, Fourth Department
Even a lull or break in the storm around the time of plaintiff’s accident did not establish defendants had a reasonable time after the cessation of the storm to correct hazardous snow conditions.

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped and fell on ice while walking on a sidewalk located on real property owned by defendant Oak-Michigan Housing Development Fund Company, Inc. and managed by defendant Belmont Management Co., Inc.  The Appellate Division held that Defendants established their entitlement to judgment as a matter of law on the issue whether plaintiff's fall occurred while a storm was in progress or within a reasonable time thereafter and, in opposition, plaintiff failed to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where she fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and whether the defendants had actual or constructive notice of the preexisting condition.
 
Contrary to the contention of plaintiff, she failed to raise a triable issue of fact by establishing that it was not raining or snowing in the area at the time of her accident, i.e., at 7:15 p.m. It is well settled that a landowner is not responsible for a failure to remove snow and ice until a reasonable time has elapsed after cessation of the storm and evidence that it was not precipitating or only lightly precipitating at the time of an accident does not render the storm in progress doctrine inapplicable. Here, the meteorological evidence submitted by defendants in support of their motion established that approximately two inches of snow accumulated in the area during the late morning and afternoon and then freezing rain fell from 3:07 p.m. until 7:03 p.m., and from 7:03 p.m. throughout the remainder of the evening, the area saw a light rain. That evidence was not contradicted by plaintiff's meteorologist. Thus, even if there was a lull or break in the storm around the time of plaintiff's accident, that would not establish that defendants had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions.

 
04/30/21          Alexander v. State of New York
Appellate Division, Fourth Department
Plaintiff does not assume the risk not inherent in the sport, i.e., obvious and necessary

Claimant commenced this action seeking damages for injuries that she sustained after she fell while participating in an obstacle course race at defendant's park.  Defendant contends that it established as a matter of law that it maintained the subject property in a reasonably safe condition under the circumstances. As the party seeking summary judgment, defendant bore the initial burden of establishing as a matter of law that the defect that allegedly caused claimant's fall did not constitute a dangerous condition, that defendant did not create and lacked actual or constructive notice of the allegedly dangerous condition, or that the allegedly dangerous condition was not a proximate cause of claimant's fall.  The Appellate Division found the State did not meet its burden.
 
Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and the existence or nonexistence of a defect or dangerous condition is generally a question of fact for the jury.  Here, in support of the motion, defendant submitted, inter alia, claimant's testimony that she fell into a hidden rut that measured five inches deep by five inches wide and ran the length of the field, thereby rendering any other potential cause of her fall sufficiently remote or technical to a jury to reach a verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. 
 
Additionally, defendant contends that the court erred in denying its motion because claimant's claim is barred by the doctrine of assumption of the risk. The Appellate Division held a claimant will not be held to have assumed those risks that are not inherent . . . , i.e., not ordinary, and necessary in the sport.  Here, although the risk of falling while running an obstacle course race is inherent in and arises out of the nature of the sport generally the evidence submitted by defendant in support of its motion failed to establish that the alleged defect was inherent in the sport.   Contrary to defendant's final contention, under the circumstances presented here, claimant's awareness of the generally poor condition of the racecourse and her decision to participate in the race relate only to the issue of her comparative fault, if any.

 
04/28/21          O’Brien v. Asphalt Green, Inc.
Appellate Division, Second Department
Leaking Ductwork That Caused Wet Floor Was Not Necessarily Incident to Swimming Pool or the Kind of Obvious Risk One Assumes When Swimming

The plaintiff, who was a swimming official, allegedly was injured when she slipped and fell on a wet condition on the pool deck at an indoor swimming facility located in Manhattan, which was operated by the defendant, Asphalt Green, Inc.   Defendant contended that the plaintiff assumed the risk, and that it cannot be held liable for the plaintiff's accident since the wet condition was necessarily incidental to the use of an indoor pool.  The Appellate Division, viewing the evidence in light most favorable to plaintiff on defendant’s motion, assumed that the slippery condition that allegedly caused the plaintiff's fall resulted from brown water that dripped from what the plaintiff described as an overhead pipe, rather than from water splashed from the pool. Thomas O'Connor, the defendant's director of operations, testified at his deposition that the indoor swimming facility had a dehumidification system, which delivered 83-degree air to the pool area year-round. O'Connor testified that water droplets from the pool would rise and mix with dust that had accumulated on top of air ducts, and then the moisture would run down the ductwork and could make its way to the floor.
 
The Appellate Division held that the defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area. The defendant failed to establish, prima facie, that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming facility. 
 
Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk. Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.   The doctrine applies to inherent risks related to "the construction of the playing field or surface and any open and obvious condition on it and encompasses risks involving less than optimal conditions.”  It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.
 
However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport. The hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility   Further, the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises.

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 column in Premises Pointers.  I look forward to bringing you updates and pointers on recent elevator and escalator decisions in New York State.  
 
This month marks the return of the Brood X Cicadas.  Every 17 years, billions of Brood X Cicadas exit their subterranean homes to spend their final days above ground. It is believed that more than 1 million cicadas per acre will take flight, turn into adults, and produce another generation of cicadas.  These cicadas will die within several weeks.  There are 3 separate species of 17-year cicadas which mix forming broods.  Brood X is the largest of the 12 existing broods of 17-year cicadas and is expected to affect parts of the Midwest and the Mid-Atlantic states.  Prepare to hide.  
 
It was another quiet month in the world of vertical transportation case law.  This month, both cases were decided on April 21, 2021.  Is this date relevant?  It might be to the Plaintiff in the second of two cases this month.  
 
In the first case, the Second Department affirmed an elevator maintenance provider’s summary judgment motion due to lack of notice.  In the Second, the Plaintiff moved to consolidate two matters that occurred on the same date, in the same building.  A motion to consolidate respectfully asks the court to find common questions of law or fact between two separate actions and consolidate them into one action for trial and/or other proceedings.  (See CPLR § 602(a).)  The Supreme Court of New York County found that incidents occurring on the same date in the same building did not share a sufficient common question of law or fact worthy of consolidation. 
 
I hope you enjoy the ride. 
 
Scott

 
4/21/2021                    Kim v. Park Hill Owners, Inc., et. al. 
Appellate Division, Second Department
Summary Judgment granted where elevator maintenance provider did not create or have notice of the defective mis-level.
 
Plaintiff alleges she was injured when she tripped and fell entering a mis-leveled elevator.  Defendants Park Hill Owners, Inc. (“Owner”) and Triboro Management, Inc. (“Property Manager”) retained Defendant Ultimate Elevator Corp. (“Ultimate Elevator”) to perform service and repairs on the building’s elevators.    Ultimate Elevator moved for summary judgment.  Summary Judgment was granted, dismissing all claims and crossclaims against Ultimate Elevator.  Owner and Property Manager appealed 
 
On appeal, the Second Department confirmed a long-standing principle of elevator law: “[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.” (See Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 26 [1973]).  In the instant matter, Ultimate Elevator established its entitlement to judgment by showing it did not create or have actual or constructive notice of the alleged defect causing the elevator to mis-level.   The Second Department affirmed that the existence of a defect alone is insufficient to impart liability on a maintenance provider.  Summary Judgment affirmed. 
  
 
4/21/2021                    Castano v. Korpenn LLC et. al. 
Supreme Court New York County
Court denies Motion to Consolidate two separate incidents on the same day in the same building.
 
On October 17, 2018, Plaintiff was allegedly injured in two separate incidents at One Penn Plaza, 250 West 34th Street, New York, New York (the “Building”). 
 
First, Plaintiff alleged she was injured when elevator car #15 (the “Elevator”) entered a freefall. (the “Elevator Incident”).  Plaintiff commenced an action against Korpenn LLC and Vornado Realty Trust, the owner and property manager of the Building.  Plaintiff also sued Schindler Elevator Corporation, which serviced, maintained, and repaired the Elevator.  
 
Second, Plaintiff alleged she was injured when a dangerous condition on an interior stairwell at the Building caused her to fall (the “Stairwell Incident”).  Plaintiff alleged her injuries were caused by the negligence of Nouveau Elevator Industries and Millar Elevator Service Company in their ownership, operation, control, maintenance and management of the Building.  
 
Plaintiff moved pursuant to CPLR 602(a), to consolidate the Elevator Incident and the Stairwell Incident contending they both “arise from the same accident and circumstances.”  
 
The Court denied the motion.  The Court reasoned that the Elevator Incident involved allegations of injury by freefall of the Elevator in the Building, whereas the Stairwell Incident alleged injury on an interior staircase in the Building.  The Court found that the actions had “insufficient common questions of fact, thereby warranting the denial of the motion.”  While the incidents shared some common facts, such as the location and date, “individual issues [such as how each alleged incident occurred] predominate, making consolidation inappropriate.”  (See 172 Van Duzer Realty Corp. v. 878 Educ., LLC, 164 A.D.3d 1171, 1171, 83 N.Y.S.2d 60, 60 [1st Dep’t 2018] [citing Bender v, Underwood, 93 A.D.2d 747, 748, 41 N.Y.S.2d 301, 302 [1st Dep’t 1983]]).  

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