Premises Pointers - Volume IV, No. 3


Premises Pointers
Watch your step!

Volume IV, No. 3
Friday, August 14, 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



Since our last edition, I am pleased to report we have returned to the office and it has been a welcome change of scenery for everyone. While we have staggered schedules, wear masks in common areas and employ social distancing practices, we are back to collaborating in person, bouncing ideas off one another and enjoying that ability to “pop” in someone’s office. Though our work from home experience was successful, often resulting in increased communication and greater teamwork, we also appreciate working with our colleagues in real time at the office.
On the Court front, most matters continue to be handled virtually, but there is discussion of several test trials scheduled in Erie County this fall and in other parts of New York State.  At this point, we are not entirely sure what this will look like, but it is a positive sign for the future and demonstrates a return to a more normal litigation practice.
The next challenge on the horizon is on the education front with schools scheduled to open this fall. Across New York State and beyond, most School Districts are trying to strike the right balance that considers safety, the need for in-person teaching and providing socialization for school age kids.  It is not an easy task. Having spent a good deal of my career representing School Districts, I suspect litigation will flow from schools reopening on a variety of issues. Time will tell.
Stay well and enjoy the rest of the summer!


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]
and guest contributor Katherine L. Wood [email protected]

Since this month’s column is focused on restaurant liability, I invited employment law attorney Katherine Wood to write about two employment cases, O’Rouke and Farmer. Should you require any assistance on an employment law issue, please reach out to Katie who would love to hear from you. And once again, thanks to attorney Lani Brandon for her assistance this month with Premises Pointers.
07/16/20           O’Rourke v. Drunken Chicken in NY Corp., et al
United State District Court, Eastern District of New York
Defendants’ failure to appear leads to granting of injunctive relief, monetary damages, and attorneys’ fees on Plaintiff’s public accommodation discrimination claim.

Plaintiff, a man who suffers from numerous conditions that impair his ability to walk, attempted to visit a restaurant owned and operated by Drunken Chicken.  He alleged that he was denied access to the restaurant due to architectural barriers, including the property lacking a proper ramp, accessibility routes to the public sidewalks, and sufficient handicap parking.  He sued Drunken Chicken along with the owner of the property, Soho New York Lodging, LLC, for violations of the public accommodation requirements of Title VII of the Americans with Disabilities Act (“ADA”), and state and city human rights laws.  Defendants failed to appear or otherwise defend Plaintiff’s action against them.  The Court found that because Defendants failed to appear in the case and Plaintiff had alleged sufficient facts to state a claim under Title III of the ADA, Plaintiff was entitled to injunctive relief to remedy the architectural barriers on the premises.  As Title III of the ADA permits granting attorneys’ fees to a prevailing plaintiff, Plaintiff was permitted to submit billing records to the Court for attorneys’ fees to be granted at a later date.  The Court held similarly on the state and city human rights law claims, and thus granted Plaintiff an award of $1,000 in compensatory damages for those claims.

07/21/20           Farmer v. Shake Shack Enterprises, LLC, et al
United State District Court, Southern District of New York
Motion to dismiss granted on race discrimination claim, but denied on sex and retaliation claims against former employer and aiding and abetting discrimination and retaliation claim against manager in his individual capacity.

Plaintiff, a pregnant African American woman, brought an action against her former employer, Shake Shack Enterprises, LLC (“Shake Shack”), the specific Shake Shack location at which she was employed, and her former general manager alleging discrimination based on race and sex and retaliation under Title VII of the Civil Rights Act of 1964 and state and city human rights laws.  Plaintiff alleged that her former general manager and other managers had subjected her to discriminatory treatment after she told him she was pregnant.  For example, Plaintiff’s general manager allegedly required that she provide proof of her pregnancy by the next day or risk termination; Plaintiff was allegedly chastised for moving slowly; and her general manager allegedly informed her that her performance was declining due to her lifting restrictions.  Plaintiff’s general manager terminated her employment soon after, allegedly because Plaintiff could not keep up with the work.  The Court held that these allegations were sufficient to support the sex discrimination, retaliation, and aiding and abetting causes of action, and thus, Defendants’ motion on those claims were denied.  With respect to her race-based claims, Plaintiff alleged that the general manager terminated the employment of two African American employees and one African American and Hispanic employee and that he also accused an African American manager of stealing.  The Court found these allegations insufficient to support a causal connection between Plaintiff’s race and her termination from employment and granted Defendants motion to dismiss relative to that claim.

7/15/20            Generoso v. Miller’s Ale House
Appellate Division, 2nd Department
Summary Judgment denied because Defendant failed to meet burden.

Plaintiff alleged he sustained personal injuries when he slipped and fell inside the restaurant of Miller’s Ale House. Defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the branch of the motion which was for summary judgment dismissing the complaint asserted against the defendant Miller’s Ale House. The Appellate Court affirmed the order of the Supreme Court, noting that the defendant moving for summary judgment in a slip-and-fall case has the initial burden of demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence for a period of time sufficient to discovery and remedy the condition. The Court held that the defendants had not met their burden, noting that the presence of a warning sign in the vicinity of the accident scene satisfied defendant Miller’s Ale House’s duty to warn of a dangerous condition.
7/15/20            Von Euw v. Frisco, LLC
Appellate Division, 2nd Department
Summary Judgment granted because Defendant satisfied burden as movant by demonstrating Plaintiff did not know what caused her fall.

Plaintiff commenced this action alleging personal injuries suffered as the result of slipping and falling in a restaurant operated by defendant Jackson Roadhouse, LLC and leased from defendant Frisco, LLC. The Supreme Court granted defendants’ motion for summary judgment. On appeal, the Appellate Court noted that, in a slip-and-fall case, a plaintiff’s inability to identify the cause of his or her fall is fatal to the cause of action because a finding of negligence on the part of the defendant would be based on speculation. Defendants had submitted a transcript of plaintiff’s deposition testimony with their motion, which demonstrated plaintiff could not identify the cause of her fall. The plaintiff failed to raise a triable issue of fact on opposition.
8/12/20            Kleiner v. Crystal Ball Group
Appellate Division, 2nd Department
Summary Judgment granted because Defendants satisfied burden.

Plaintiff was a guest at a wedding reception when an employee of the wedding venue stepped backwards and bumped into the plaintiff, causing her to fall. She commenced this action against the employee and the venue, alleging she suffered injuries as a result of the fall. Defendants moved for summary judgment and the Supreme Court granted the motion. On appeal, the Court upheld the Supreme Court’s ruling, holding that Defendants made a prima facie showing that the employee was not negligent as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact. 


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

Greetings from Buffalo in August.  I send my hope that everyone is faring well as the pandemic continues and things begin to open. 
As of August 22nd, my wife and I will be empty nesters.  Not sure when that happened.  My daughter is heading back to her junior year at Villanova and my son starts his freshman year at St. Lawrence University in New York’s North Country.  The changes wrought by the past 6-7 months make college life, at least for the fall, almost unrecognizable.  Even on campus, their classes will be a mix of remote and live lectures and traditional campus activities are both minimal and tightly controlled.  My daughter's quick exit from campus last March has made us view what they are bringing to school and how to pack a priority.  Strange times indeed. 
I’ve been listening lately to a lot of stuff buried deep in my music library – do this long enough and you’ll forget what you have.  It’s like Christmas morning several times a month.  That dovetailed with terrific July releases from a pair of acts that have been plugging it in since well before many of H&F’s associates were born.  That will make you feel old.  The Jayhawks released their first record in 1986 and July’s XOXO finds them in fine form.  Don’t worry about the labels – they’ve at points been called roots rock, alt. country and Americana.  As a friend of mine noted, the Jayhawks provide an ideal soundtrack for sitting on the porch with your favorite beverage.  He’s right but don’t let the smooth fool you – especially their gorgeous harmonies.  They make it sound way too easy (and it’s not a studio trick – I’ve seen them bring it live).  If it was easy, everyone would be doing it (and they aren’t).  The second record is the stellar Hate For Sale from Chrissy Hynde and the Pretenders, who beat the Jayhawks to the record store by 6 years, releasing their first record in 1980.  Hate For Sale is vintage Pretenders – biting, snarling and surprisingly tender at times.  My only complaint is they stopped at 10 tracks. 
I look at four cases this month, including a pair from our own Appellate Division, Fourth Department.  Two address petitions to serve late Notices of Claims, starting with addressing the impact of the tolling of the statute of limitation occasioned by a parallel federal class action lawsuit on time to seek permission for the late filing.  The other two cases deal with claimed negligent supervision in a school and the applicability of a prior written notice requirement where one municipality has contractually agreed to plow another’s roadways.
Be well.  Send any questions, comments or suggestions my way.  TCB
July 24, 2020      Bingham v. Town of Wheatfield
Appellate Division, Fourth Department
Plaintiffs’ status as a member of an aggrieved parties in a federal class action lawsuit tolled the statute of limitations, allowing the court to consider their application to serve a late notice of claim beyond the one year and 90 days statute of limitations.
This matter addresses an application for leave to serve 67 late Notices of Claim.  The Nash Road Landfill, owned by the Town of Wheatfield, was designated a Class 3 New York State Superfund site in the 1980s and upgraded to a Class 2 site in December 2015.  On November 29, 2016, residents living near the site were notified that testing on their properties had revealed contamination.  By the end of February 2017, Notices of Claim had been timely filed for approximately 100 affected individuals.  Before the one year and 90-day window ran in early 2018, four other petitions were successfully brought to serve late Notices of Claim for other claimants and at least four lawsuits were commenced in state court.   The petition to serve the present 67 Notices of Claim was filed in December 2018, well after the applicable one year and 90 statute of limitations expired – the one year and 90 days ran from the petitioners’ receipt of the November 29, 2016 report of the test results.
In addition to the state actions, a federal class action lawsuit was commenced in March 2017.  The claimants now seeking to serve the late Notices of Claim are members of the class in that suit. 
The petitioners argued New York General Municipal Law §50-i’s requirement that applications to serve late Notices of Claim must be filed withing the statute of limitations did not bar their claims because the federal class action suit, timely filed withing the one year and 90 days, tolled the statute of limitations.  The court agreed, noting that even though the proposed class had not yet been certified by the federal court the tolling still applied.
The court also looked at the traditional factors for filing a late Notice of Claim – notice, prejudice, excuse.  Here, the court noted the respondents were well aware of the underlying facts and circumstances, having become aware in December 2015 of the landfill site’s change in class and the receipt of numerous other Notices of Claim making “substantially identical” claims.
July 24, 2020      Charles DJ v. City of Buffalo and Buffalo Board of Education
Appellate Division, Fourth Department
That relevant school employees were not in a position to know of prior sexual assaults was fatal to school’s motion for summary judgment in a case alleging negligent supervision.

Plaintiffs’ son, then a kindergartner at a Buffalo Public School, was sexually assaulted by an unknown 5th grader while using a bathroom at school.  Plaintiff had been excused to use the bathroom, located outside the classroom, by a substitute teacher.  Plaintiff was not accompanied by anyone when he went to use the bathroom.  In their lawsuit, the child’s parents alleged the school had negligently supervised the student by allowing him to use the bathroom unaccompanied. 
On their motion for summary judgment, the school argued that they lacked any notice of any prior sexual assaults at the school.  The question was whether the school had “sufficiently specific knowledge or notice of the dangerous conduct.”  Notice of the hazard or danger, either actual or constructive, is required – a defendant cannot be expected prevent or guard against the myriad spontaneous or sudden acts of students that happen daily in any school.
Here the court found that the school failed to meet its primae facia burden on the motion.  Fatal to the motion were two key points.  First, testimony by the school’s assistant principal that while she was not aware of any prior sexual assaults, complaints and incidents of that nature were “kept very quiet” and teachers and staff would not necessarily be informed of a claimed sexual assault.  That the teacher that allowed the child to go to the bathroom unaccompanied was a substitute teacher – the assault occurred on her first day, making her unable to know of any prior assaults.  The testimony of several other witnesses did not help the school’s cause, as they were also not in a position to know of any prior assaults. 
August 5, 2020                 Adbelghany v. City of New York, et al.
Appellate Division, Second Department
Access to transcripts from the 911 call for the underlying incident did not give notice of the underlying claims of negligence.
Petitioners sought to serve a late Notice of Claim alleging negligence by the City of New York’s Police and Fire Departments in responding to a 911 call after their daughter was discovered drowning in a swimming pool.  In responding to the call, the Fire Department’s responding Advanced Life Support unit was delayed in responding because it initially went to the wrong address.  The petition to serve the late notice was served more than one year after the incident but before the one year and 90 day statute of limitation expired.
The petitioners argued that possession of portions (each Department would maintain their handling of the call) of the 911 call gave notice to both defendants.  In opposition, the City set forth how such a call was processed.  911 calls are initially answered by the Police Department.  Calls of a medical nature, such as the call in this case, are immediately transferred to the Fire Department’s Emergency Medical Dispatch Center, which then determines the appropriate response.  The Police Department deletes its portion of the call after 180 days; the Fire Department maintained its portion of the call. None of the records documented who was responsible for the wrong address – the Fire Department or the 911 caller. 
The court denied the petition, finding that the absence of any record showing who was responsible for the wrong address meant that the Fire Department would not have been aware of any potential negligence on its part.  As to the Police Department, the court noted that the deletion of their portion of the call in the regular course 180 days after the incident established that they would be prejudiced by allowing the proposed Notice of Claim to proceed.
July 15, 2020      Brower v. County of Suffolk, et al.
Appellate Division, Second Department
Town’s prior written notice requirement applied to conditions on roadways it plowed, pursuant to a contract, for a neighboring Village.
Plaintiff claimed she slipped and fell on ice on a Village of Mastic street near her house.  Pursuant to a contract between the Village and the Town of Brookhaven, the Town plowed the street.  Plaintiff claimed the street was snow covered and unplowed when she fell.  Plaintiff then sued both municipalities.  The Town and Village both moved for summary judgment on the grounds that they had not received the required prior written notice of the allegedly hazardous condition.
In opposition to the Town’s motion, the plaintiffs argued that the Town’s prior written notice requirement applied only to those roadways owned by the Town.  Not so said the court.  Both the Village and Town’s motions were granted.


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

New York State’s COVID numbers continue to remain low, and the state’s leaders have received much praise for their handling of this pandemic.  Once the hot spot, New York has one of the lowest transmission rates in the country.  The pandemic hit the nursing home community particularly hard, and criticism of how the state addressed the special needs of the nursing homes is growing.  We continue to monitor the situation and track this litigation.  If you haven’t yet signed up for our weekly newsletter, please do contact us if you would like to be included.
The good news is that nursing homes can now allow visitors.  Assuming proper protocols are followed, the most vulnerable members of our community can now be re-united with their loved ones. 
Governor Cuomo has recently signed legislation rolling back nursing home immunity. The rollback legislation passed by New York lawmakers on July 23, 2020 was signed into effect late Monday, August 3, 2020, and applies prospectively to cases accruing from this date. The bill, which amends an earlier law affording legal immunity to nursing homes and hospital facilities operating amid the COVID-19 pandemic, now extends immunity only to medical professionals who have diagnosed, assessed or treated COVID-19 patients. The legislation also removes the “prevention” of the coronavirus from the definition of health care services.
As for the legal updates, Appellate Decisions are light, but we highlight two trial court decisions, in which the defendant facilities were granted dismissal at the motion stage for claims of pressure sore injuries.
June 24, 2020              Maria Polanco v. Daughters of Jacob Support Organization, Inc.
Supreme Court, Bronx County
Motion for summary judgment granted where Defendant shows that decedent’s pressure ulcers were an unavoidable result of his age and numerous chronic comorbidities.
Plaintiff alleged that Defendant had failed to prevent and treat decedent’s pressure ulcers, eventually resulting in his death. Defendant established its entitlement to judgment as a matter of law by submitting an expert affidavit stating that decedent suffered from a multitude of comorbidities which caused him to be significantly at risk for developing pressure ulcers. These included: hypertension, hyperthyroidism, depression, dementia, Alzheimer’s, arthritis, anemia, sepsis, gastro-duodenitis with bleeding, and heart disease.
The expert stated that Defendant had developed plans of care to address this risk, and additionally outlined the care that was given to the decedent once the ulcers materialized. The expert concluded that decedent’s pressure ulcers were not caused by Defendant’s negligence but were the unavoidable result of his age and pre-existing chronic conditions.

July 13, 2020              Patricia Benjamin et al. v. Jewish Home Lifecare, et al.
Supreme Court, New York County

Motion for summary judgment granted where records from several medical providers indicated that decedent’s skin was intact and that she had not formed any pressure ulcers while residing at Defendant’s facility.
Defendant, Jewish Home Lifecare, filed a motion for summary judgment in this action for negligence and wrongful death, which Plaintiff commenced by alleging that Defendant’s negligence had caused decedent to develop pressure ulcers. Defendant submitted an expert affidavit which stated that at no point during decedent’s residency did she suffer a pressure ulcer.
At the time of decedent’s admission, Defendant’s nursing staff conducted a thorough skin assessment which revealed no impairment of any kind. The records showed that decedent’s skin remained intact during the entirety of her admission to Defendant’s facility, and this was supported by the St. Luke’s hospital records for decedent’s subsequent admission following her discharge from Defendant’s facility, which indicated that her skin was intact with no wounds, ulcers, or impairments. Decedent never returned to Defendant’s facility following her discharge.


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

Dear Readers,
This month’s legislative update will be brief as I am attending (virtually) the National LGBT Bar Association’s annual Lavender Law Conference.  This is a two day conference for LGBTQ+ legal professionals (and allies) centered on the various issues impacting LGBTQ+ people throughout the country (both in the workplace and beyond).  It has been an interesting and inspiring experience. While I am disappointed that I can’t be in D.C. as originally planned, the virtual format the NLGBT Bar is using is very impressive. 
The big news on the legislative front, at least for those of us handling Child Victim’s Act cases, is the Governor signed the extension of the CVA look back window earlier this month.  Now, plaintiffs over the age of 55 will have another year to file claims of childhood sexual abuse.  Once the window closes, claimants older than 55 will be statutorily barred from filing suit. 
Please stayed tunes for further legislative updates in the coming weeks.


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

Greetings Subscribers!
With MLB surviving its initial scare during its first weekend and the NBA bubble working (as long as players do not need their favorite wings), we are looking forward to the NFL season next month. It will be interesting to see how much is learned from MLB and whether the NFL’s Commissioner can adapt to situations that will inevitably arise. Things around WNY are picking up fast as Courts continue moving cases along and trials are expected to resume in-person next month.
It is slim pickings for my column this month, but I report on an interesting case where the plaintiff refused to proceed with trial on the day of and tried unsuccessfully to assert new injuries and conduct additional discovery. The lesson here, no matter what stage in litigation, is that if you are asserting a new injury or defense, you better be prepared to back it up with admissible proof to show a potentially meritorious cause of action or affirmative defense. Until next issue, stay safe and healthy…
07/15/20          Campbell v Dwyer
Appellate Division, Second Department
Plaintiff’s case was dismissed, pursuant to 22 NYCRR 202.27, where he failed to demonstrate a reasonable excuse for failing to proceed to trial at the calendar call.
After plaintiff filed a note of issue, the trial was adjourned several times. The trial court granted plaintiff’s motion to vacate a prior order dismissing the action pursuant to 22 NYCRR 202.27 based on plaintiff’s failure to proceed and set a trial date. On the day of the trial, plaintiff applied for leave to amend his bill of particulars, to mark the case off the trial calendar, and to conduct further discovery regarding the newly claimed injuries. After the trial court denied plaintiff’s application, the trial court dismissed the action pursuant to 22 NYCRR 202.27 as plaintiff essentially refused to proceed to trial.
About one year later, plaintiff served defendant with a “supplemental bill of particulars” or amended bill of particulars. The trial court thereafter denied plaintiff’s motion to vacate its prior order dismissing the case and to restore it to the trial calendar.
Pursuant to 22 NYCRR 202.27, a court may dismiss an action when a plaintiff fails or refuses to proceed to trial at the call of the calendar. In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.
Here, the Second Department held that plaintiff failed to demonstrate a reasonable excuse for his failure to proceed to trial at the call of the calendar and the case was dismissed pursuant to 22 NYCRR 202.27, not marked off the trial calendar pursuant to CPLR § 3404. Plaintiff also failed to demonstrate in his application that the newly claimed injuries in the amended bill of particulars, which was made on the eve of trial, had any merit and that plaintiff served same on defendant, without leave of the court and the action was dismissed, was a nullity.
Therefore, since the Court held plaintiff failed to demonstrate a reasonable excuse for his failure to proceed to trial at the call of the calendar, it declined to considered whether he demonstrated a potentially meritorious case.


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

Greetings Readers:
Hope all is well with everyone.
I’m happy to report that this is the first edition since March that I am writing from the confides of my actual office instead of the spare bedroom at my house.  While we gradually attempt to get back to normal, it is important to stay focused on remaining diligent and healthy and hopefully the worst of everything has passed.  That being said, it seems everything is unknown these days so all we can do is our respective parts to keep each other safe.
On a lighter note, my daughter just had her first birthday and, while cliché, everyone was right that time flies when you have children.  I’d like to take the time to thank her grandparents for buying her musical instruments and walkers that make loud sounds for her birthday – these delightfully noisy toys are definitely not gradually driving my wife and me to the brink of madness…
In terms of cases this month, the Appellate Divisions continue to churn out ample material to highlight that is relevant to the world of slip-and-fall lawsuits.  The three selected below provide a nice range of decisions on the topics of “open and obvious,” “storm-in-progress” and general notice concepts.  In addition to the excerpts highlighted below, I strongly suggest the actual decisions be read as they are full of useful case citations to use in building upon the points made therein.
Until next month!

June 24, 2020              Holmes v. Macy’s Retail Holdings, Inc.
Appellate Division, Second Department
Second Department affirms trial court’s denial of defendant’s attempt to obtain summary judgment based on the “open and obvious” doctrine.
Plaintiff was injured when she tripped and fell on a wooden pallet blocking a stockroom entrance inside of defendant’s store.  Defendant argued that it could not be liable for plaintiff’s injuries because the alleged hazard, the pallets, were open and obvious and not inherently dangerous.  The Trial Court denied defendant’s motion for summary judgment arguing the same.
The Second Department agreed with the trial court and affirmed the denial.  The Court reiterated the general standard on the issue that, while a landowner has no duty to protect against conditions that are open and obvious and not inherently dangerous.  However, the Court noted that just because something is “open and obvious” does not mean that automatically a landowner cannot be liable.  Instead, the analysis must include whether or not the hazard, even though “obvious,” was nevertheless dangerous.  Here, the Court found that defendant failed to establish a prima facie case because of testimony establishing that pallets were not supposed to be stacked in such a manner and their presence there could foreseeably create a tripping hazard.

July 17, 2020              Danielak v. State
Appellate Division, Fourth Department
Fourth Department affirms Court of Claims’ summary judgment award to defendant landowner based upon lack of notice.
Claimant was injured when she slipped and fell on ice on a sidewalk of the campus of a State University.  She brought suit in the Court of Claims due to the public entity defendant and the Court of Claims eventually granted summary judgment to the defendant on the grounds that it was not liable for a variety of reasons related to notice.
The Fourth Department agree with the Court of Claims’ decision in its entirety.  First, it agreed with the Court of Claims that there was no merit to claimant’s argument that defendant had a duty to proactively treat the sidewalks with de-icing substances in anticipation of potentially inclement weather.  Second, the Court agreed with defendant that there was no evidence that defendant had actual notice of the hazardous icy condition because the school submitted evidence that it did not receive any complaints thereof or specific notice as to ice in the area where the fall happened.  Lastly, the Court agreed that defendant lacked constructive notice of the condition.  This was based upon defendant’s submission of an expert meteorologist’s report that ice in the area did not “exist for a sufficient amount of time” to permit the ice’s discovery and corrective action by defendant.

July 29, 2020              Kearse v. 40 Wall Street Holdings Corp.
Appellate Division, Second Department
Second Department overturns trial court’s award of summary judgment to defendant because the facts did not support a “storm in progress” defense.
Plaintiff was injured when he slipped and fell on snow/ice on a sidewalk in front of a property owned by defendants.  Defendants were awarded summary judgment by the trial court on the basis that there was a “storm in progress” at the time of the plaintiff’s fall and that, as a result thereof, defendants could not be liable for injuries caused by icy conditions until a reasonable amount of time passed after the storm ceased.
The Second Department overturned the trial court based on a review of the facts available.  Specifically, in this case the plaintiff fell at approximately 2:30PM on the day in question.  The defendants had submitted evidence that on the date of loss snow began to fall in the morning and continued through the time of the fall into the night.  However, Plaintiff produced evidence that established that two days prior, there was a significant snowstorm involving about 3-and-a-half inches of snow.  The defendants did not produce any evidence that the subject area was completely cleared in-between the snowstorm two days prior and the time of the fall.  As such, the Court determined that there were issues of fact as to whether or not plaintiff fell on snow/ice from the storm two days prior or from snow/ice that fell on the day in questions that precluded the award of summary judgment and thus reinstated the plaintiff’s complaint.


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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