Premises Pointers - Volume IV, No. 2


Premises Pointers
Watch your step!

Volume IV, No. 2
Monday, July 13, 2020
A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Municipal Liability
Nursing Home & Assisted Living Facility Litigation



Hard to believe we are in mid-July…hope you are all finding creative ways to enjoy the warm weather. We broke records here in Buffalo last week but no one is complaining (except perhaps some of our Premises Pointers writers) given our short summers and slow start this year. While many summer plans have been altered due to COVID, it has still been nice to get outside, grill and spend time near the water.
We are excitedly awaiting our return to our office located in the Liberty Building in Downtown Buffalo. The reason we are still working from home is actually not COVID related.  We have had the green light to return (pursuant to a Safety Plan of course) for several weeks. However, we started a construction/renovation project right before the shut down that came to a halt. The work is just about complete so we will be returning to a fresh new look at the office. Stay tuned for pictures!
Back to the Liberty Building for a moment. It was built in 1925. At the time of its completion, the Liberty Building was the largest office building in downtown Buffalo. The building was christened with three replicas of the Statue of Liberty sculpted by Leo Lentelli in 1925. Two statues on the roof, one facing west, and the other facing east, represent Buffalo's strategic location on the Great Lakes. A third statue was placed over the Main Street entrance. Only the rooftop statues remain today. They stand 36 feet tall and are illuminated at night. It’s a beautiful building and we are fortunate to occupy the 12th and 13th floors with views of Buffalo City Hall and Lake Erie. While our lawyers transitioned well to working from home mastering Zoom and Microsoft Teams, we are looking forward to getting back to the office.
Our Melville, NY team also has a brand new office space to return to later this month. They moved office locations right before the shut down and are finally getting a chance to settle in and get set up. Attorneys Brian Mark, Robert Hewitt (PP columnist) and Michael Dischley cover the New York Metro area and Lee Siegel and Diane Bucci cover both Connecticut and New York.
Last month, I neglected to congratulate the Premises Pointers Team on the start of our 4th year in publication. Over the last several years, we’ve added content and writers (speaking of which, thank you Lani Brandon for your work on the newsletter this month) and best of all, subscribers! We’ve received many notes and calls and love hearing from you! Please feel free to reach out to any of our columnists.  Our sister publication, and the firm’s first newsletter, Coverage Pointers, also celebrated an anniversary last month as they began their 22nd year! Congratulations to Dan and the entire CP team!

Stay well.


And don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

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

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Products Liability Pointers: Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, product liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of product liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Brian F. Mark at [email protected] or V. Christopher Potenza at [email protected] to subscribe.


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

Last week, we received a favorable decision for one of our retail clients in a slip and fall case. The plaintiff slipped due to a Gatorade spill located in a back aisle of the store near closing time. Surveillance video confirmed the spill occurred 12 minutes before the plaintiff’s fall when a guest dropped a bottle of Gatorade on the floor, which was not reported to the store.  The Court ruled that “no reasonable jury” could conclude this was a sufficient period of time for employees to discover the hazard and remedy it. Since this case was removed to Federal Court, it was noted the defendant was not obligated to affirmatively prove that it lacked notice of the spill, nor was it obligated to provide proof of when it last cleaned or inspected the area where the accident occurred.  It was the plaintiff’s burden to present evidence of constructive notice, which the plaintiff did not do here. Happy to share the decision with anyone interested!
One of the reasons we were successful in this case is because we removed it to Federal Court. The below case is a reminder of the strict requirements for removal that must be followed.

7/06/20              Sharrock v. Walmart
United States District Court, Northern District of New York
Lawsuit removed to Federal Court remanded because oral demand is not sufficient to establish amount in controversy.

Plaintiff Joel Sharrock filed a Complaint in the Supreme Court of the State of New York, Westchester County, alleging he had been injured in a Wal-Mart store due to a liquid spill.  Defendants filed an answer to the Complaint on July 26, 2019 and removed the action from state court on October 29, 2019 pursuant to 28 U.S.C. §§ 1441 and 1446, asserting that “the grounds for removal are that this Court has original jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).” Pursuant to § 1446(c)(2), if removal of a civil suit from state court to federal court is premised on 28 U.S.C. § 1332(a) and state practice does not permit a demand for a specific sum, removal is proper only if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds $75,000.
In their Notice of Removal, Defendants stated that complete diversity existed because they are citizens of Arkansas and Plaintiff is a citizen of New York. They also asserted that the amount in controversy is in excess of $75,000 based on a telephone conversation with the plaintiff’s attorney that took place on October 29, 2019, during which the plaintiff demanded $200,000 to settle the case. Defendants did not provide any additional support for their assertion that the amount in controversy exceeds $75,000.
Pursuant to § 1446(b)(3), “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant…of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” The Second Circuit has established a “bright line rule” that the 30-day “removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought.” Furthermore, the Second Circuit has established that an oral settlement demand is not a sufficient basis for removal.
The Court found that the defendants failed to satisfy their burden of establishing that the amount in controversy exceeds $75,000, that the oral demand did not serve to start the 30-day removal clock, and  that removal from state court was improper. The Court then remanded the action back to the state court from which it was removed.


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

Greetings – I hope everyone’s summer has, and continues, to provide some relief from the changed world around us.  Having nowhere to go in the evenings and weekends has resulted in my gardens and landscaping looking better than usual, at least until the heatwave currently baking WNY arrived.  If nothing else, it’s a nice reminder why I could never live down south.  I do have to agree with the one benefit noted by my son, who has taken up golf this summer – concrete fairways are great if your best drives are grass burners.
A couple of new releases to liven a summer day are Alphabetland by Los Angeles punk legends X and the debut full length record Melee from Michigan rockers DoglegAlphabetland shows the past 30-40 years has dimmed X’s fire.  Melee is a promising start by a band willing to put in the work on the road to build a base.  Of course, having good tunes to play is always a bonus.  The next time someone claims rock is dead – offer one of these.  Actually listening to the bands putting out the music will tell you that.
The flow of cases is picking up but is still pretty light.  This month brings us two prior written notice cases, one at the trial court level that illustrates a very narrow and rarely seen exception to prior written notice requirements and an appellate decision reminding practitioners to take care to review the case materials and pleadings, even on what may seem like a routine matter.  The final case is a motion for summary judgment on a negligent supervision case where the failure to proffer evidence to support an argument that the defendant should have conducted the activity during which the injury occurred made the claim conclusory and insufficient to create a question of fact.
Stay safe.  TCB
June 15, 2020             Vaisman v. Village of Croton-On-Hudson, et al.
Supreme Court, Westchester County
Village’s sidewalk replacement program exempted case from the Village’s prior written notice statute.

Most of our reporting is about appellate decisions – this is a trial court decision that addresses a very narrow (and therefore rarely applied) exception to a prior written notice statute.

In April of 2019, plaintiff tripped over a Village sidewalk panel in front of his neighbor’s house.  Because of tree growth, edge of the offending sidewalk panel was elevated approximately 5 inches.  Plaintiff sued the Village and his neighbor as the adjoining property owner. 
After discovery, the Village moved for summary judgment, arguing it had not received prior written notice of the damaged sidewalk and that it had not affirmatively created the condition, an exception to prior written notice requirements.  The Village’s prior written notice statute required written notice to the Village Clerk and the Village submitted an affidavit from the Village Clerk attesting she had search 20 years of records and found no notice.  Addressing the claim it had created the condition, the Village submitted an affidavit from the Village Engineer stating that in the 19 years prior to the accident, the only work at the location was installation of new sidewalks in 2006 and that the Village would have rejected any sidewalk where the panels were not even and level.
The co-defendant property owner opposition blew up what seemed like a straightforward motion.  The property owner submitted proof that in 2015 the Village was aware that the growth of Village trees had damaged sidewalks throughout the Village, leading it to create “Sidewalk Improvement Project.” That program provided where sidewalk damage was caused by the Village’s trees, it would split the replacement of the sidewalk panels on a 50/50 basis with the adjoining property owner.  The property owner in this case applied for the program in the summer of 2016.  After an inspection, the Village deemed the sidewalk eligible for replacement under the project.  The property also owner submitted numerous emails between himself and the Village engineer about the sidewalk and the schedule for its replacement.  The owner was told the sidewalk was set for replacement in the spring of 2019, with the last email exchange occurring 10 days before the fall.  The Village clerk was not copied on any of the emails. 
The Village did not dispute any of the materials the property owner submitted about the sidewalk replacement project, including that the Village had determined the sidewalk in question qualified for the program. It held to its argument that the prior written notice requirements had not been met and it had not created the condition.
The Village’s motion was denied. The court noted that the case law and argument put forth by the Village was settled law and that the Village had established a prima facie case for summary judgment.  Prior written notice must be provided to the specific municipal official, office or agency or department stated in the statute, which had not occurred in this case – written communication with the Village Engineer about the sidewalk’s condition was not notice to the Village Clerk.  The court also agreed there was no proof of active negligence – passive negligence, such as allowing the condition to develop, was not sufficient to trigger liability. 
The problem for the Village was that the co-defendant property owner’s submission placed the case within a very narrow exception to the prior written notice requirements.  That exception applies “when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident”  The most common application for this inspection is what occurred here – an incident occurring after the municipality has identified a problem and is implementing a solution but the work has not yet been done. 
The Village has filed a Notice of Appeal.
June 24, 2020             Nigro v. Village of Mamaroneck
Appellate Division, 2nd Department
Establishing a prima facie case for summary judgment requires the moving party to address all the claims made against it.
After tripping and falling on an allegedly defective Village sidewalk, plaintiff served a notice of claim, followed by a summons and complaint that included a claim that the Village had affirmatively caused and/or created the defect.  After discovery, the Village moved for summary judgment, submitting proof that it had not, as required by Village Code, received prior written notice of the alleged defect.
Despite no substantive opposition on the prior written notice question, the Village’s motion was denied.  An exception to a prior written notice requirement is where the municipality actively created or caused the danger and plaintiff’s complaint contained that allegation.  The Village’s failing was not addressing the creation claim.  As the court noted, a moving party’s required prima facie showing is governed by the claims made against it.  By not addressing the claim it had created or caused the condition, the Village could not establish a prima facie basis for summary judgement.

June 24, 2020             Carpento v. Middle Bay Golf Club
Appellate Division, 2nd Department.
Absent evidence the allegedly proper procedure or process was an accepted and implemented practice, the claim was conclusory and could not create a question of fact.
The 7 year old plaintiff was injured during a Junior Golf Day held by the defendant.  Plaintiff was part of a group of 12-15 kids, supervised by two instructors.  The group was at the “chipping” station, where each kid was given a wedge and allowed to hit several balls.  One instructor was positioned with the kids, while the other was approximately 30 yards away, in the direction where the kids were hitting.  After working on their short game, the group moved to the next station.  Plaintiff was running behind another golfer when that child stopped, turned and swung his club, an ill-advised, but not hostile, action resulting in the club hitting plaintiff in the face.
On summary judgment, the court found that the club met its prima facie burden of establishing it had adequately supervised the group (the decision does not indicate what the club submitted on this point) and that the accident had happened so quickly that any additional supervision would not have prevented the accident.
In opposition, plaintiff argued that the club was negligent because it should not have allowed the junior golfers to have a club outside of those instances when they were working one on one with an instructor.  This claim was rejected as conclusory because plaintiff provided no support or evidence that the level of supervision claimed necessary was accepted practice by golf clubs and professionals teaching the sport to young children. 
The lesson – saying it isn’t enough.  If you argue that something different should have been implemented or the event conducted differently, proof, typically an expert affidavit and/or accepted industry literature or guidelines, must accompany the claim. 


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

As we have shifted into the summer months, so too have we seen a shift from lawmakers and organizations to resuming a sense of normality through both the healthcare and legal systems, as evidenced by the announcement from the Centers for Medicare and Medicaid Services (CMS) that they are ending the emergency blanket waiver intended to reduce administrative burden on nursing homes amid the continuing COVID-19 pandemic.  We anticipate that — in New York at least — we will see more preparations for COVID protections drawing to a close in the coming weeks as the state’s numbers continue to improve. Given the anticipated ending of certain protections and the likelihood of FCA litigation against nursing homes, it is paramount that facilities continue to take robust steps to mitigate their risk. We are vigorously monitoring the guidance and statements coming from the relevant government and regulatory bodies, as these will inevitably inform the defense of any such COVID-related actions that may be filed – particularly when this guidance appears confusing or contradictory, as displayed in the interplay between Governor Cuomo’s Executive Orders and CDC recommendations.  If you haven’t yet signed up for our weekly newsletter, please do contact us if you would like to be included.
Appellate decisions are usually light during the summer months, and even more so during this quarantine.  There are two interesting trial court decisions addressing procedural issues which often arise in these claims: 1.) plaintiff’s counsel attempting to disqualify defense counsel for offering to represent a former employee and non-party witness; and 2.) plaintiff attempting to raise a new theory of liability at the summary judgment stage.
June 18, 2020              Bella Mesropian v. Providence Care, Inc.
Supreme Court, Kings County
Defense counsel’s offer of representation to a non-party witness and former employee of facility does not disqualify defense counsel from continued representation of defendant facility.
In this personal injury action resulting from a slip and fall occurring on the sidewalk in front of defendant’s nursing home, plaintiff moved for an order striking the Answer of the defendant for willful, intentional and/or negligent spoliation of evidence and for its willful failure to provide a response to the post-EBT document demands.  Plaintiff also moved to disqualify defense counsel due to contact with a non-party witness and former employee of facility who testified concerning the creation of an incident report.  Plaintiff argued that defense counsel was attempting to coerce the witness to testify in a manner favorable to defendant “while at the same time attempting to curry favor” with the witness by offering to represent him in a potential lawsuit against defendant for their retaliatory termination of his employment which constituted an inherent conflict of interest in violation of 12 NYCRR 1200 (Rule 1.7)
The Court held that the disqualification of an attorney is a matter which rests within the sound discretion of the court. A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion.  In denying the motion, the court noted that the record did not support the allegation that defense counsel offered to represent the witness in a potential retaliation claim against the defendant, and the witness nonetheless declined to be represented by this defense counsel in this proceeding. 
July 1, 2020                Cheryl Little v. Isabella Geriatric Center, Inc. et al.
Supreme Court, New York County

Motion for summary judgment granted in part as plaintiff impermissibly raised a new theory of liability, and otherwise denied due to issues of fact raised as to the cause and treatment of decedent’s ulcers.
In this wrongful death action, Defendant New York Presbyterian Hospital-Columbia University Medical Center moved for summary judgment against the Plaintiff, stating that it could not be established that Defendant’s medical treatment deviated from accepted standards of care, or proximately caused decedent’s alleged injuries or death.
Defendant’s expert opined that decedent’s pre-existing comorbidities and severely compromised condition caused her to be predisposed to decubitus ulcers and prevented decedent’s wounds from properly healing despite timely and appropriate treatment and preventative measures. Although decedent’s ulcers were inevitable, the expert stated that Defendant took all reasonable and necessary steps to treat the existing ulcers and to prevent the development of new ulcers.
In opposition, plaintiff’s expert witness stated that although decedent had risk factors for the development of sores, these ulcers should not have deteriorated as they did. Specifically, the expert opined there were no records to indicate that defendant complied with turn/position orders, defendant should have implemented closer monitoring of the wound care specialist, implemented aggressive nutritional evaluations with a dietician, and raised for the first time that the decedent plaintiff’s amputation could have likely been avoided had defendant attempted less invasive measures.
The Court granted in part defendant’s motion for summary judgment dismissing plaintiff’s new theory of liability that plaintiff’s amputation could have been avoided had defendant attempted less invasive measures. The remainder of the motion was however denied, as plaintiff had raised triable issues of fact with respect to whether decedent’s pre-existing conditions caused or contributed to her alleged injuries and/or death, and additionally as to whether defendant properly treated decedent’s ulcers.


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

Dear Readers,
A heatwave haiku.

The grass in my yard
is browning, toasting, dying.
It’s hard to mow dirt.

July 2, 2020    Mark Dolgas v. Donald Wales, Tri-Valley Elementary School, Tri-Valley
Central School District, The Board of Education of the Tri-Valley Central
School District
N.Y. State Supreme Court, County of Sullivan
Generally, sexual tort lawsuits, at least those filed against institutional Defendants, are cases of alleged negligent supervision.  This case is a little different.
Plaintiff commenced an action for personal injuries, alleging that a former teacher employed by the District-Defendants sexually abused Plaintiff from 1982-1983 when he was 11 years old.  Among other things, he raised causes of action against the District-Defendants that included: intentional infliction of emotional distress, negligent infliction of emotional distress, a violation of federal law (Title IX or 28 U.S.C. 168.1), and a 42 U.S.C § 1983 claim for a violation of the Plaintiff’s U.S. Constitutional Due Process right “to be free from the invasion of bodily integrity through sexual assault, abuse, or molestation.”  The District-Defendants moved to dismiss with mixed success. 
First, the District-Defendants argued that the claims-revival provision of the CVA was, itself, unconstitutional and that Plaintiff’s claims should remain barred by the Statute of Limitations.  Like the case of ARK3 Doe v. Diocese of Rockville Centre, et al, which was covered in the June 2020 edition of Premises Pointers, the Defendants argued that Plaintiff had many years to raise his claims and that, due to the Plaintiff’s delay, there would be a significant lack of evidence allowing the Defendants to rebut Plaintiff’s allegations.  The Court immediately dismissed the argument holding that the District-Defendants, as municipal corporate bodies, lacked the capacity “to mount constitutional challenges to acts of the State and State Legislation.” The Court went on to state that, even if the District-Defendants could challenge the claims-revival provision of the CVA, the statute comported with the Court of Appeals test applied to legislation allowing previously time-barred cases to proceed through the enactment of a claims-revival law: 
A claim revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice.
In the Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377 (2017).  Like in ARK3 Doe, the Supreme Court of Sullivan County agreed that the the claims-revival provision of the CVA was a reasonable response to remedy an injustice clearly articulated by the legislature.
The District-Defendants went on to make a number of arguments tailored to Plaintiff’s individual causes of action:

  • The Court wholly eliminated the claim of intentional infliction of emotional distress, holding that “public policy bars claims alleging IIED against governmental entities.”
  • The Court did not dismiss Plaintiff’s claims of Negligent Infliction of Emotional Distress against the District Defendants, however, ruling that the District-Defendants’ arguments were premature and should be raised again on summary judgment.

Most interestingly, the Court also allowed Plaintiff to proceed with both his Title IX claim as well as his Section 1983 Claim (alleging a violation of Plaintiff’s federal, constitutional Due Process rights). 
Title IX is a federal law prohibiting sexual discrimination (including harassment) by federally funded educational institutions.  Specifically, the law states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” A teacher’s sexual harassment of a student may give rise to an action for money damages under Title IX only where the District had actual knowledge of discrimination in its programs and failed to provide a remedy.   The requirement for actual notice is not, however, without exceptions.  Indeed, in some circumstances, constructive notice of discrimination (evidence that the Defendant should have known about discriminatory acts or policies) can give rise to an inference (at least sufficient to raise a genuine issue of fact) that the District did indeed have actual knowledge of discrimination.
On motion, the District-Defendants argued that the Plaintiff failed to state a cause of action in his Complaint because the allegations related to this particular claim were overly vague and failed to establish that the District had actual notice of the abuse at-issue and/or that the Plaintiff had, as a result of the abuse, been deprived of educational opportunity.  In response, the Court stated that the Plaintiff was not required to plead with particularity, especially given his age at the time of the tortious conduct and because the Defendant was in a superior position to know if/how discriminatory policies existed in the District. The Court subsequently held that Plaintiff’s allegations that the District “had actual knowledge, knew, or reasonably should have known of Wales’s dangerous and exploitive propensities…” and that Wales’ abuse “caused [Plaintiff] to drop out of high school when he was sixteen” were sufficiently pled to satisfy the pleading standard and overcome Defendants’ motion to dismiss.
Finally, the District-Defendants moved to dismiss Plaintiff’s Section 1983 claim, alleging a violation of his federal, constitutionally guaranteed “Due Process right to be free from the invasion of bodily integrity through sexual assault, abuse, or molestation.”   In response, the Court applied the same minimal pleading standard discussed in connection with Plaintiff’s Title IX claim and, engaged in a brief Monell analysis.
Under Monell, a municipal corporation, such as a school district may bear liability for a teacher’s violation of a student’s constitutional rights where the violation was the result of a municipal or district policy or custom.  The analysis is satisfied (and a cause of action against a district may proceed) where: (1) the employee/teacher was acting pursuant to an expressly adopted district policy; (2) the employee/teacher was acting pursuant to a long-standing practice or custom; or (3) the employee/teacher responsible for the constitutional deprivation was himself responsible for establishing the relevant municipal policy. As with the Title IX claim, the District-Defendants argued that the Plaintiff failed to plead sufficient facts to support the necessary prongs of this analysis and that the allegations of the Complaint were simply too vague to support the claim.
The Court disagreed and pointed to Plaintiff’s allegations that (1) the District-Defendants failed to address prior complaints and allegations of abuse, causing an unknown number of students, including the Plaintiff, to be sexually assaulted, abused and molested and (2) that the District failed to properly investigate and/or prevent the abuse despite a reasonable opportunity and legal duty to do so (“amounting to a deliberate indifference to plaintiff’s rights) as sufficient to overcome the motion to dismiss.  The Court again found the pleading was ultimately sufficient, because of the Plaintiff’s age at the time of the tortious conduct and because the District was most likely to possess evidence of its own policies.


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

Greetings Subscribers!
The end of this month cannot come soon enough with the return of NBA playoffs along with a shortened MLB season. I have not yet heard how the NFL will conduct this upcoming season, but that is next month’s problem. Courts throughout out the state are starting to move cases along and issue more decisions as most counties enter the second week of Phase 4. This week is starting off busier than the last few months; hopefully, it is a sign of good things to come!
This month, I report on an interesting case from our own background, Windnagle, wherein the trial court dismissed the complaint for plaintiff’s failure to comply with the discovery order. The Demurgian case is a reminder of the hurdles defendants face when seeking the plaintiff’s tax returns. If you’ve encountered this issue, drop me a line and we can strategize together on how best to proceed with a motion to compel or if there are alternative ways to obtain that information from other sources. Until next issue, stay safe and healthy…

06/12/20          Windnagle v Tarnacki
Appellate Division, Fourth Department
Although plaintiff’s dilatory conduct may have reasonably prompted defendants to seek the court’s guidance, the drastic sanction of dismissing the complaint, with prejudice, provided more relief than was necessary to protect defendants’ interests.
After plaintiff failed to complete discovery and file a note of issue and statement of readiness in compliance with the trial court’s scheduling order, the trial court issued a decision prior to oral argument on defendant’s motion to compel and dismissed the complaint, with prejudice, as a sanction.
“Although the nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking a pleading is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith.”
The Fourth Department reversed the trial court as defendants made no showing that plaintiff’s noncompliance with the court’s scheduling order was willful, contumacious or in bad faith, and the trial court made no such finding. Defendants claimed that plaintiff’s failure to comply with discovery was because plaintiff’s counsel indicated he was engaged in settlement discussions with the claims adjuster.
However, the Court held plaintiff’s conduct was not the type of “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay” that would justify the penalty of dismissal of the complaint, or that defendants were prejudiced by the delay in conducting discovery.

06/18/20          Demurjian v Demurgian
Appellate Division, First Department
Defendant was not entitled to the production of plaintiff’s tax returns because of the failure to identify the particular information the tax returns will contain and its relevance to the claims.
The trial court granted defendant’s motion to compel with respect to plaintiff’s tax returns, despite that such a demand is disfavored and requires “a strong showing of necessity” and the inability to obtain the information from other sources. The Frist Department unanimously reversed because of defendants’ failure “to identify the particular information the tax returns … will contain and its relevance to the claims made”, which should have been sufficient to deny defendant’s motion.

06/25/20          Rahman v Rahman
Appellate Division, First Department
Plaintiff could not show good cause for the extension she sought because she waited over two years after her counsel died from cancer to file her motion and did nothing to advance her case and failed to comply with a discovery order.
The trial court denied plaintiff’s motion to extend certain notices of pendency on the ground that she failed to show good cause for the extension, i.e., that the need for the extension did not result from her own delay in prosecuting her action. The First Department unanimously affirmed because plaintiff offered no detailed about her assertion that the delay was caused by her counsel’s illness and death from cancer or its effect on his legal work. The Court noted that her counsel died more than two years after the notices were filed and the action commenced, and she had nothing since that time to advance the case and failed to comply with a discovery order.


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

Greetings Readers:
We’ve officially surpassed one-hundred days since the COVID pandemic fundamentally altered the 2020 calendar year.  While it has been trying and difficult at times, I’ve been lucky enough to be quarantined with my almost-one-year-old daughter.  When the pandemic first arrived in March, she was barely able to move on her own.  Now she is in a constant state of movement, walking all over myself and my wife (both literally and figuratively).  While I am obviously eager to get back to life-as-normal, with July being the month we anticipate returning to the office, it has almost been a blessing to be home during these months and be able to experience so many important milestones of my daughter’s that I may not have otherwise been able to witness.
This month I highlight three recent decisions out of the Second and Third Departments.  The first case, Mejias, is a great recap of almost all of the legal theories that my column is based on, including, storm-in-progress, a defect being trivial and also the plaintiff himself being responsible for fixing the defect in the first place.  Aside from the holding of the case itself, it contains a plethora of useful case cites for anyone faced with these issues.  The second case, Stewart, again delves into the intricacies of the storm-in-progress in doctrine, specifically the concept of “new” versus “old” ice.  Lastly, Spina presents the rare example of a defendant obtaining summary judgment on the grounds of a defect being “open and obvious,” as Courts tend to find that such determinations are better left for a jury.
Until next month!

May 27, 2020              Mejias v. City of New York
Appellate Division, Second Department
Second Department overturns lower court’s grant of summary judgment based upon a variety of different premises liability concepts.
Plaintiff was injured when he slipped and fell on an exterior step of a school that he worked at which was owned and operated by the defendants.  Of note, the plaintiff alleged that he was caused to fall because of an unreasonable accumulation of ice thereon as well as an alleged unevenness to the step.  Defendants were awarded summary judgment by the trial court on various grounds including the ‘storm-in-progress’ rule, an argument that the defect was trivial and an argument that plaintiff himself was actually responsible for maintaining the area in which he fell.
The Second Department overturned the trial court’s summary judgment award for each of the arguments listed above.  Regarding the storm-in-progress argument, while the Court noted that it was undisputedly snowing at the time of the accident, the defendants failed to establish that it was solely the ice/snow that caused his fall and not the unevenness of the step.  The existence of more than one proximate cause of an accident thus precluded the application of the storm-in-progress rule shield defendants from liability.
Concerning the trivial defect argument, the Court reiterated many of the oft-cited cases concerning the standard for assessing whether or not a defect is trivial and thus not actionable.  Despite the Court acknowledging that photographs, when properly authenticated, can established that a defect is trivial as a matter of law, here, the photographs submitted by defendant were of too poor quality to establish the same. 
Lastly, the Court noted that defendants failed to prove that plaintiff himself was the exclusive individual responsible for keeping the subject area clear.  Plaintiff’s own testimony raised issues of fact concerning who all would be involved in a situation involving the repair of the subject step, something that precluded the Court from awarding judgment as a matter of law on the topic.

June 25, 2020              Stewart v. Alcoa, Inc.
Appellate Division, Third Department
Third Department affirms trial court’s denial of summary judgment to defendant landowners on issues related to storm-in-progress doctrine and plaintiff being responsible for subject defect.
Plaintiff was injured when he slipped and fell on ice at a property owned by the defendants.  Plaintiff was working inside of a building that had to be reconstructed due to a recent fire.  Given the law of walls, snow and ice from outside was able to enter the perimeter of the structure.  Plaintiff asserted claims pursuant to both common-law negligence, as well as Labor Law § 200.  Defendants moved for summary judgment on various grounds including a storm-in-progress defense and an argument that plaintiff himself was tasked with remedying the condition at issue.
The Third Department began by explaining, in detail, the relevant case law concerning the requirements of a storm-in-progress defense.  The facts established, without a doubt, that it was “snowing heavily” on the day of the accident.  However, there was abundant testimony that, prior to that day, there was already ice present throughout the property and that the new snow simply was landing on top of that “old” ice.  The Court found that the complete inability to determine without a doubt whether plaintiff fell on “new” ice, in which case the action would be barred, or “old” ice, in which case the suit could proceed, precluded an award of summary judgment in defendants’ favor.  The key takeaway from this prong of the Court’s decision is that just because it was snowing, even snowing “heavily,” at the time of an accident, that does not automatically entitle a defendant to a successful storm-in-progress defense.
Regarding the argument that it was plaintiff who was responsible for addressing the defect that ultimately caused his fall, the Third Department again sided with the trial court.  The Court began by citing to the proposition that recovery is precluded when an injury is caused by “the very condition [the plaintiff] was charged with removing.”  In this case, however, the evidence again was not definitive that clearing the ice at issue was specifically this employee’s job.  Instead, the evidence suggested that he was doing so only as an aside to the actual work he was commissioned to perform.  As such, the Third Department again found that issues of fact precluded an award of summary judgment.

July 1, 2020                Spina v. Brookwood Ronkonkoma, LLC
Appellate Division, Second Department
Second Department affirms lower court’s grant of summary judgment based upon the defect at issue being “open and obvious.”
Plaintiff was injured when she tripped and fell on a flowerpot that was located on an exterior walkway near the entrance to defendant’s business.  The defendant was awarded summary judgment at the trial court level on a theory that it could not be liable because it had no duty to warn against an open and obvious condition.
The Second Department affirmed the trial court’s decision finding that the flowerpot qualified as an “open and obvious” condition.  After reciting the rationale for why a defendant will not be held liable for an open and obvious condition, the Court found that the flowerpot in this instance was not inherently dangerous based upon photographs thereof and the testimony of the plaintiff herself.  Additionally, the Court gave weight to the fact that the placement of the flowerpot did not violate any applicable building codes.


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

Dear Readers,

I hope you are well. My wife and I have been trying to keep our children busy now that school is out but it is difficult with few camp or other opportunities. Hopefully brighter days are ahead soon.
This month, I have an escalator case, the first since I started this column. In the escalator case, the trial court granted the motion for summary judgment of defendants, holding that the escalator was regularly inspected and maintained, and that they did not have actual or constructive notice of a prior similar incident or an ongoing condition that would have caused the escalator to stop suddenly with vanishing steps, as plaintiff testified.
Until next time,

June 10, 2020             Marshall v. Port Authority of New York
Supreme Court, New York County
Plaintiff alleges she was riding an ascending escalator at LaGuardia Airport. She had ridden midway up the escalator when it stopped suddenly and the step she was on "vanished.”  Plaintiff fell backwards, landing on her back, with her head facing downwards and her feet facing upwards. There were no witnesses. The unit maintenance supervisor employed by Port Authority of New York and New Jersey (“Port Authority”) responsible for writing and procuring maintenance contracts for the Port Authority testified that escalators are inspected monthly by Schindler Elevator Corporation (“SEC”) and that any calls for repairs are recorded on work tickets and in a logbook detailing the work performed. Mr. Hatton testified that there are safety devices along the escalator that will shut off the escalator if they are tripped, which would result in requiring an SEC or a Port Authority employee to reset the safety device. He stated that there is no record of the plaintiff's accident and that he has never heard of an escalator stopping suddenly. The SEC witness stated that he made monthly maintenance inspections of the escalator in question and that both SEC and the Port Authority inspected the safety switches once a year. He explained that the escalator will not stop unless a safety switch or emergency switch is activated. If a safety switch is tripped and the escalator stops, it slides about three quarters of a step and is meant to stop softly. A manual reset with keys is then required to restart the escalator. He testified that there were no maintenance, repair or inspection records for the date of the alleged incident.
The Port Authority and SEC filed a motion for summary judgment. In support of their motion, they submitted an expert report by an engineer in the field of vertical transportation. The expert noted that maintenance on the escalator in question was performed monthly, repairs were timely, and there was no indication that the escalator the plaintiff alleges to have stopped suddenly ever stopped. He concluded that the subject escalator was maintained on a regular and systematic basis in accordance with industry standards and that there is no indication that stoppage of the escalator is what caused the plaintiff to fall.
Plaintiff’s expert engineer opined that an increase from two violations in 2014 to seven in 2015 was indicative of a lack of sufficient preventative maintenance and concluded that, with a history of 23 outages in 12 months, the stoppage of the escalator on the date of plaintiff’s fall was caused by a lack of proper cleaning, lubrication, examination, adjustment and repair of the escalator by SEC.
The Court granted Defendants’ motion for summary judgment. In its opinion, the Court held that order to establish lack of constructive notice, a defendant must provide some evidence regarding the last time the site was inspected relative to the accident. The Court found that the defendants had established their prima facie entitlement to judgment as a matter of law by demonstrating that the escalator was regularly inspected and maintained, and that they did not have actual or constructive notice of a prior similar incident or an ongoing condition that would have caused the escalator to stop suddenly with vanishing steps.
The Court stated that, although the plaintiff's expert opined that the accident was caused by the defendants' failure to properly inspect, maintain and repair the escalator, those assertions were merely speculative, unsupported by the record, and, thus, have no probative value. Plaintiff had also contended that the defendants should be held liable pursuant to the doctrine of res ipsa loquitur. In response to this, the Court stated that plaintiff failed to establish that the escalator was within the exclusive control of the defendants, since it was continuously used by the public. Additionally, the Court found that the testimony of the Port Authority and SEC witness along with the defendants' expert affidavit, established that emergency stop buttons are located at the top and bottom of the escalator that are accessible to the public. The Court noted that the plaintiff's expert did not opine that the location of any emergency stop buttons constituted a design defect or otherwise was not in keeping with accepted industry standards. Therefore, the motion was granted.


Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Brian M. Webb
[email protected]

Rob E. Hewitt
[email protected]

V. Christopher Potenza
[email protected]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]


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