Premises Pointers - Volume IV, No. 4

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
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

NOTE FROM THE EDITOR:

So glad to have back to school 2020 in full swing! My best wishes to all of you who have kids adjusting to the new school year. As a mother of 3 children (1 in college, 1 in high school and 1 in middle school), getting back into the groove of school has been a welcome event. While the kiddos are doing a combination of remote and in-person learning, it’s still an exciting time for them (and me). On the other side of things, schools and educators have been tasked with the monumental responsibility of creating a learning environment that provides for safety while allowing students to learn, advance academically and grow socially. Our firm has represented and counseled schools throughout New York State (see here for more details) and suspect there will be a spike in lawsuits related to school reopening plans, safety protocols, availability of school services, school sports and a host of other issues. For now, I am happy parent, however putting my lawyer hat on, I am also prepared for the litigation likely to be seen down the road.
 
In other news, I am incredibly proud of my colleagues at Hurwitz & Fine who have been recognized over this past month by Super Lawyers and Best Lawyers. We have several new attorneys listed this year and also many associates who have made new “Ones to Watch” and “Rising Stars” lists, including many of our Premises Pointers columnists! These recognitions are a reflection not just on the lawyers who are listed, but our entire office.

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:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on medical and nursing home liability claims, including updates on the impact of COVID-19.  Contact Chris Potenza 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 Lani J. Brandon [email protected]

8/20/20            Defisher v. PPZ Supermarkets, Inc.
Appellate Division, Fourth Department
Judgment of lower court upheld because the jury’s determination was supported by fair interpretation of the evidence.

In this slip and fall case, Plaintiff Kristen Defisher alleged she slipped and fell on water on the floor in the vestibule of Defendants’ supermarket, causing her to suffer personal injuries. A jury found that there was no water on the floor where Plaintiff fell, and a judgment was entered in favor of Defendants. Plaintiffs appealed, contending that the Supreme Court had improperly reversed a purported factual finding in its earlier spoliation order by ruling that Defendants would be permitted to contest whether video footage that had not been retained would have captured the area where Plaintiff fell. Plaintiffs neglected to include the spoliation order in the record on appeal, rendering the appellate court unable to review Plaintiffs’ contention. Plaintiffs further contended that the trial court erred in denying their motion for a directed verdict made at the close of proof. The appellate court rejected that contention on the grounds that it is well settled that a directed verdict is appropriate where the court finds, based on the evidence presented, that there is no rational process by which the fact trier could base a finding in favor of the nonmoving party. The Court further stated that whether a dangerous or defective condition exists is generally a question of fact for the jury, and that the parties in this case introduced conflicting evidence regarding the existence of water on the floor where plaintiff fell, which presented a question of fact for the jury to resolve.
 
Plaintiffs also challenged the trial court’s verdict on the ground that it is against the weight of evidence. The appellate court concluded that Plaintiffs were not required to preserve their contention that the jury verdict was contrary to the weight of the evidence by making a postverdict motion for a new trial. The Court stated, “Inasmuch as the trial court is authorized to order a new trial on its own initiative when the verdict is contrary to the weight of the evidence and the power of the Appellate Division is as broad as that of the trial court…this Court also possess the power to order a new trial where the appellant made no motion for that relief in the trial court.” The Court added that, to the extent that its prior decisions hold otherwise, those decisions should no longer be followed. Ultimately, the Court found that, contrary to Plaintiffs’ contention, the verdict is not against the weight of the evidence on the basis that the conflicting evidence regarding the existence of the alleged dangerous condition raised a question of credibility to be resolved by the jury. The Court affirmed the Supreme Court’s judgment, holding that the jury’s determination that there was no water on the floor where the incident occurred was supported by a fair interpretation of the evidence.
 

9/9/20              Manzone v. Wal-Mart Stores, Inc.
United States District Court, Eastern District of New York
Motion in limine granted in part and denied in part.
 
Plaintiff Cheryl Manzone brought this action against Wal-Mart alleging she sustained personal injuries as the result of slipping on a wet substance when she was walking down an aisle while shopping in Defendant’s store. Defendant filed a motion in limine to preclude certain damages claims and testimony from Plaintiff’s biomechanics expert and two treating physicians.
 
Defendant argued that the biomechanics expert’s testimony is inadmissible because it is “not helpful in determining any fact in issue,” adding that the incident was captured on video so the jury can see what happened for itself. Defendant further argued that the expert opinion unlawfully infringes the province of the jury because it addresses matters “within the ken of the average juror.” Wal-Mart further asserted that the expert is unqualified to testify about safety standards and the duty of care, and even if she is, such testimony was not properly disclosed during discovery. Finally, Defendant argued that the expert’s opinion improperly draws legal conclusions in stating that the condition of the store aisle was the “proximate cause” of Plaintiff’s injuries and that Defendant was “negligent” in its maintenance of the aisle where Plaintiff slipped and fell.
 
In its analysis, the Court stated that the purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence, and that evidence should only be excluded if it is inadmissible on all potential grounds. The Court then turned to the legal standard for expert testimony, noting that the admissibility of expert testimony is governed by Fed. R. Evid. 702. The Court noted that its function is that of a gatekeeper whose approach should be flexible, with the presumption in favor of admissibility. The Court granted Defendant’s motion only to the extent that the expert’s opinion contains legal conclusions concerning the ultimate issues in the case that are for the jury to decide, adding that the jury will be instructed on the law on both issues at the conclusion of the trial and will make these determinations. The Court denied Defendant’s motion in all other respects.
 
Turning to the testimony of two of Plaintiff’s treating physicians, the Court noted that treating physicians may testify to opinions formed during the course of treatment but where they intend to opine about matters outside the course of treatment, they must satisfy the requirements of Fed. Civ. P. 26(a)(2)(C) and disclose in advance the subject matter of the expected testimony, along with a summary of the facts and opinions to be included in the testimony. Defendant did not attack the testimony of the treating physicians on the basis of a failure to comply with Rule 26, but rather argued that their testimony should be precluded because at their depositions they could not provide adequate medical opinions on causation with respect to Plaintiff’s purported injuries. Plaintiff represented that the only testimony being proffered through these two treating physicians is going to be limited to the facts obtained in the course of Plaintiff’s treatment. Finding that there was thus no basis to grant the relief sought, the Court denied this portion of Defendant’s motion.

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

We write to you live (or virtually anyway) from this year’s DRI Nursing Home and ALF Virtual Seminar, which Hurwitz & Fine is proud to sponsor. While we certainly miss being able to gather in person with our friends and colleagues from across the country to discuss the defense of long-term care claims, especially in this pandemic climate, this year we meet from our computer screens.  As this pandemic has struck our nursing home residents the hardest, it is more important than ever to be prepared to defend these fine institutions and their caregivers who did all they could to protect society’s most vulnerable from this unrelenting disease. 
 
Nursing home litigation is not immune to Covid-19.  Or is it?  While New York issued immunity to health care workers and facilities dealing with this pandemic (except for gross negligence), we wait to see how these executive decisions will be treated by the courts.  With this uncertainty abound, we must focus now on preparing to defend these claims and the front-line caregivers who put their own lives at risk to protect our loved ones.  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.
 
There is one case of note this month in which the Second Department denied a plaintiff’s attempt to seek disclosure of confidential health information of other residents and denied his attempt at class certification.
 

August 26, 2020          Olmann v. Willoughby Rehabilitation and Health Care Center, LLC
Appellate Division, Second Department
Plaintiff thwarted in attempt to obtain the disclosure of confidential health information of other residents and denied class certification.
 
In this putative class action, plaintiff sought damages for negligence and violation of Public Health Law § 2801–d.  Marie C. Olmann (hereinafter the decedent) was a resident of the defendant Spring Creek Rehabilitation & Nursing Care Center (hereinafter Spring Creek), a nursing home, from June 2012 to January 2014. In November 2015, the decedent's son, Joseph Olmann (hereinafter the plaintiff), individually and as the proposed administrator of her estate, and purportedly on behalf of all others similarly situated, commenced this putative class action against Spring Creek and its owner, the defendant Willoughby Rehabilitation and Health Care Center, LLC to recover damages for negligence and violation of Public Health Law § 2801–d. The plaintiff alleged that the decedent and other residents at Spring Creek sustained injuries attributable to substandard nursing care.
 
The Second Department held that the Supreme Court providently exercised its discretion in denying the plaintiff's motion for a protective order to allow for disclosure of confidential health information of other Spring Creek residents as “premature and overly broad.”  The Court further upheld the denial of plaintiff’s motion for class certification as plaintiff failed to establish that questions of law or fact common to the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

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

Dear Readers,
 
Like so many other things, COVID has completely disrupted New York’s lawmaking process.  Normally, the state legislature remains in session from January until June, however this year the legislature has continued to work in an ad hoc manner over the summer months and into the fall. 
 
Changes to the Election Law
 
Wondering how you are going to vote in the next election cycle? Recent changes to NY Election Law allow voters concerned about contracting or spreading COVID-19 to not only apply for absentee mail-in ballots, but to submit that application online. Significantly, this is not the end of the changes voters can expect to see this election cycle.  Indeed, in the coming weeks, New York election law could see several more changes.
 
In July, Senate Majority Leader Andrea Stewart-Cousins announced that the Senate Majority would advance a legislative package intended to “buil[d] on previous legislation passed to strength and expand New Yorkers’ voting rights.”  Among other things, the package of bills advanced by the Senate Majority (some of which have already passed both houses and signed by the Governor) included:
 
            S. 8806: The New York Automatic Voter Registration Act of 2020, which creates an automatic voter registration system. 
            S.8370B: Provides voters notice and an opportunity to contest (and cure) challenges to absentee ballots.  *This Bill has already been signed by the governor.
            S.8015D:  Defines “Illness” for the purpose of absentee voting.  “Illness” will include instances where voter is unable to appear personally because there is a risk of contracting or spreading a disease causing illness. *This Bill has already been signed by the governor.
            S.8799A:  An absentee ballot is timely even if it does not bear postmark if it was received and timestamped by the day after Election Day. *This Bill has already been signed by the governor.
            S.8783A: Temporarily allows absentee ballot applications to be submitted to boards of election earlier than 30 days before an election. *This Bill has already been signed by the governor.
            S.6886D: Requires electors to vote for Presidential and Vice Presidential candidate who received the highest number of votes in the state.  The bill is intended to “remove the risk that so-called ‘faithless electors’ from New York could impact the outcome of a presidential election.”
            S.8796A: Allows certain party designations and nominations to be made via video teleconference upon notice to the members of the respective committee. *This Bill has already been signed by the governor.
            S.8465A: Allows the use of an alternate, anglicized, or familiar name on an election petition or ballot so long as the name used is demonstrated to be commonly used to identify the person in their community and is not intended to mislead voters or petition signers.
            S. 8782:  Requires municipalities with the highest population in each county to have at least one polling placed designated for early voting. 
 
            Also in the news is the prospect of “Ballot Drop Boxes,” which allow voters to deposit completed ballots in official, approved, secure drop boxes and to ultimately avoid using the U.S. Postal Service or in-person polling locations to cast a vote.  Ballot Drop Boxes are currently used in more than 33 different states throughout the Country. Unlike a typical return box (like at the library), a Ballot Drop Box has to be securely constructed, monitored to prevent fraud, and regularly emptied.  The estimated cost of installing official and secure boxes through the State is approximately $5 million.

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

Greetings Subscribers!
 
I am so excited that football is back! With major sports in full swing, it is a very exciting time, although time will tell if the NFL can handle a global pandemic as well as MLB. Good luck Roger…
 
Although it remains slim pickings for discovery decisions, this month I report on a case involving a motion to renew, which is often confused with a motion to reargue. The standards are different as a motion to renew is based on new facts not offered on the prior motion and which would have changed the prior determination, and you need a reasonable justification for failing to submit the facts on the prior motion (see CPLR § 2221[e][2]). Conversely, a motion to reargue can only be made on matters of fact or law which were presented by the parties but allegedly overlooked or misapprehended by the court (see CPLR § 2221[d][2]). I’m more than happy to further discuss the similarities and differences between the two; just reach out. Until next issue, stay safe and healthy…
 
Marc

 
09/02/20          Leader v Steinway, Inc.
Appellate Division, Second Department
Defendant’s motion to renew was properly denied for failing to articulate a reasonable justification for not submitting the new facts in the original motion and for failing to show that these new facts would have changed the prior decision.
 
Plaintiff brought claims to recover damages for wrongful death and conscious pain and suffering as a result of a motor vehicle accident. The Complaint alleged that decedent died when the vehicle she was a passenger in plunged into a creek due to a missing or collapsed guardrail and that defendant made special use of that area, thereby causing or contributing to the collapse of the guardrail.
 
The trial court denied defendant’s pre-discovery summary judgment motion dismissing the complaint as premature, with leave to renew after the completion of discovery. Defendant thereafter moved, pursuant to CPLR § 2221, for leave to renew and reargue its prior motion for summary judgment based on evidence obtained from related litigation involving the same accident. The trial court denied defendant’s motion to renew.
 
A motion seeking leave to renew must be based on new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the motion (see CPLR § 2221[e][2]; Bukhtiyarova v Cohen, 172 AD3d 1153, 1155-56 [2d Dept 2019]). “A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation” (Krobath v South Nassau Communities Hosp., 178 AD3d 810, 811 [2d Dept 2019]).
 
The Second Department affirmed the trial court’s determination that the new facts submitted in support of the motion to renew were available to defendant at the time of the original motion, and that defendant failed to set forth a reasonable justification for not submitting those facts on the prior motion. More importantly, the Court held that defendant failed to establish that the new facts would have changed the prior determination (see e.g., Ciliotta v Ranieri, 149 AD3d 1032 [2d Dept 2017]).

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

Dear Readers,
 
I hope all is well. My family and I are transitioning back to school. Both our children are in-person learning. For those of you with school-aged children, whether learning in person or virtually, I wish you the best of luck in meeting the challenges of this school year.
 
We have a couple of cases this edition. The first involves an elevator, but a slip and fall in an elevator due to outside weather conditions. The court found that the owner of the property successfully raised the storm in progress defense even though eight hours had occurred since the storm stopped. In the second case, the City argued it was an out of possession owner with no notice of the defective elevator but its motion was denied because it failed to demonstrate as a matter of law it had no duty to repair the elevator.
 
Until next time,
 
Rob

 
August 26, 2020         Bryant v. Retail Property Trust
Appellate Division Second Department
Eight hours after a storm still constituted storm in progress benefitting owner who did not clean snow and ice out of an elevator before a slip and fall.

This is a slip and fall due to weather conditions in an elevator. The plaintiff allegedly injured his back when he slipped on a mix of snow and ice inside an elevator located in a parking garage at the Roosevelt Field Mall in Nassau County, New York. The subject elevator was located near an area that was open to the elements. At the time of the accident, the defendants allegedly owned and operated the subject property. The plaintiff commenced this action against the owners to recover damages for personal injuries, alleging that they were negligent in maintaining the subject property. The mall defendants cross-moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them based on the applicability of the storm in progress rule. The Appellate Division affirmed the grant of summary judgment for the owners, holding  Under the so-called storm in progress' rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.  On a motion for summary judgment, the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case. Here, the mall defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including, inter alia, the transcript of the plaintiff's deposition testimony, certified climatological data, and an expert affidavit from a forensic meteorologist, with attached report, demonstrating that the snowstorm that caused the hazardous condition to exist inside the elevator ended on January 3, 2014, around noon, the accident occurred at 8:40 pm, and that they did not have a reasonable opportunity thereafter to correct that  condition.

 
July 15, 2020 Muller v. City of New York
Appellate Division Second Department
City failed to demonstrate it had no duty to repair elevator in building it owned
 
The defendant City failed to make a prima facie case and its motion for summary judgment was denied. The plaintiff, a librarian employed by the Brooklyn Public Library, fell while stepping out of an allegedly mis-leveled staff elevator at a branch of the library. The defendant City of New York owned the building where she fell. The plaintiff commenced this action to recover damages for personal injuries against the City, among others. The Appellate Division held an owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition. However, an out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty.
 
Here, the City failed to establish, prima facie, that, as the owner of the building, it had no duty, by contract or course of conduct, to repair the elevator inside the building. By failing to provide admissible evidence to prove the City's lack of responsibility for maintenance and repairs, or lack of notice,  the City failed to demonstrate the absence of any material issue of fact and there was no need to examine plaintiff’s opposition papers.

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

Greetings Readers:
 
Hope everyone is staying safe and productive as we transition from Summer into the indisputably best time of the calendar year – Fall.  It’s my personal opinion that nothing beats sitting outside in late September in a sweatshirt and just enjoying the crisp air.  On top of all of that, us residents of Western New York are all pretty excited about the fact that the Buffalo Bills are obviously going to win the Super Bowl this year…
 
In personal news, we have finally reached the stage of parenthood where my daughter has decided that she would like to climb on literally everything in our house.  The speed in which she went from (a) you can just put her on the ground and she won’t move to (b) look, she’s standing on that chair has been remarkable.  If anyone is in need of a good workout, feel free to contact me and I can arrange for you to babysit this little cyclone.
 
In terms of slip-and-fall law in New York, there have not been too many relevant opinions coming out of the Courts during the past few weeks.  Regardless, a few recent decisions highlight some important points that all attorney who work in this realm need to be aware of.  First, in Asprou, the Second Department reaffirms a very common theme: you will not win summary judgment unless you have specifics.  Next, the Second Department is again highlighted, this time explaining and applying some key legal concepts inherent to landlord-tenant law and premises liability.  Lastly, while just a trial level case and thus of limited precedential value, McDaniel is a good example of a plaintiff being required to have some proof of liability beyond mere speculation in order to maintain a cause of action against a contractor.
 
Stay safe all.
 
 
July 8, 2020                Asprou v. Hellenic Orthodox Community of Astoria
Appellate Division, Second Department
Second Department affirms trial court’s denial of defendant’s motion for summary judgment based on concepts of notice.
 
Plaintiff was injured when he allegedly slipped and fell on water present on a basketball court in defendant’s gym.  Plaintiff’s argument was that the water came from a leak in the roof of the gym.  Defendant moved for summary judgment arguing that it could not be liable to the plaintiff because, among other arguments, it had neither actual nor constructive notice of the leaking roof prior to the incident.
 
In affirming the trial court’s denial of defendant’s motion, the Second Department focused on a common failing of defendants who try to argue that they did not have constructive notice: the lack of documented proof of site inspections.  Specifically, the Court stated that the “fail[ure] to submit evidence regarding specific cleaning or inspection of the area…relative to the time when the accident occurred” precluded any award of summary judgment on the issue of constructive notice.  The takeaway, often highlighted by this column, is that if you wish to argue lack of constructive notice, you absolutely must have inspection logs or other similar documents that directly show reasonable proof that the area was regularly checked and the at-issue hazard was never noticed.
 

August 26, 2020          Mannapova v. Aufrichtig
Appellate Division, Second Department
Second Department affirms trial court’s dismissal of third-party complaint due to concepts related to owner-tenant law and general property maintenance law.
 
Plaintiff was injured when she allegedly tripped and fell on a portion of raised sidewalk outside of a building owned by one of the defendants.  The defendant property owner then commenced a third-party action against the building’s first floor tenant claiming that it was really the tenant’s responsibility to correct the subject defect.
 
The Second Department affirmed the trial court’s grant of summary judgment in favor of the third-party defendant tenant on a variety of grounds.  First, the contract between the landlord and the tenant required that the tenant make all “nonstructural repairs” and the Court found the sidewalk to be a clear structural issue.  Second, the Court focused on the municipal code of the City which places the duty to repair sidewalks on landlords and not tenants.  Lastly, the Court highlighted a key legal concepts by pointing out that this sidewalk defect predate the lease between the landlord and tenant and that “a duty to maintain does not impose a duty to correct pre-existing structural conditions.”
 

September 1, 2020      McDaniel v. City of New York
Supreme Court, Bronx County NY
Trial court grants summary judgment in favor of construction company based on failure of respondents to pinpoint location of company’s work.
 
Plaintiff was injured when she alleged tripped and fell on a defective portion of sidewalk and brought suit against a variety of public and private entities.  One of the defendants was Maspeth Supply Co., who had dug various “test pits” in the neighborhood in connection with the installation of an underground water main.  Plaintiff’s argument against Maspeth was that said work contributed to the sidewalk defect.
 
In support of its motion, Maspeth presented evidence consisting of both blueprints concerning the locations of these pits as well as testimony by a supervisor in charge of the work.  Even though the manager testified that ‘sometimes” the exact location of the test pits differed by up to 10 feet from where noted on the plans and that work was done on the street where plaintiff fell, the Court agreed with Maspeth’s argument and granted the motion.  The Court focused on the inability of any party opposing the motion to point to anything beyond pure speculation that Maspeth work was done within the immediate vicinity of where Plaintiff identified that she fell.  Again, as in Asprou above, the Court focused on a search for specifics and its decision was guided by a lack thereof, albeit in a different direction in this instance.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSOCIATE EDITOR
Todd C. Bushway
[email protected]

ASSISTANT EDITORS
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]

Patrick B. Curran
[email protected]

Stephanie L. McCance
[email protected]
 

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