Premises Pointers - Volume IV, No. 5


Premises Pointers
Watch your step!

Volume IV, No. 5
Monday, October 19, 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



On September 18, 2020, the legal community lost Supreme Court Justice Ruth Bader Ginsburg. It was a Friday night when the news broke and my phone lit up with e-mails and text messages from friends and colleagues who, like me, were shocked, saddened and shaken by the news. As a female attorney who graduated from law school the year before Ruth Bader Ginsburg became the second woman to serve on the Supreme Court, she was a role model and inspiration to me. She was a trailblazer that literally led the way for my generation of female lawyers and changed the course for women, not only in the legal profession, but in all aspects of life. Without the contributions and unwavering commitment of Justice Ginsburg on issues of gender equality, civil rights and social justice, we would be living in a different world. I had the opportunity to personally hear her speak last summer in Buffalo, which was a highlight in my professional career and an unforgettable experience for me personally. At that time, I was on the verge of taking on the position of Managing Partner at Hurwitz & Fine, an opportunity that may not have been available but for the resiliency, vision and achievements of Justice Ginsburg. This was not far from my thoughts as I listened to her recount stories from her life and career. Justice Ginsburg will be missed. RIP RBG.


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]

10/2/20            Ginsberg v. BJ’s Wholesale Club, Inc.
Appellate Division, Fourth Department
Judgment of lower court reversed because defendants had met their burden of establishing that they lacked constructive notice.
Plaintiff Debra Ginsberg alleged she sustained injuries when a metal panel detached from a self-check-out machine at a BJ’s Wholesale Club store and fell onto her foot. The machine had been manufactured by third-party defendant International Business Machines Corporation. Defendant-third-party plaintiff BJ’s Wholesale Club, Inc. and third-party defendant each moved for summary judgment dismissing the complaint. The Supreme Court denied the motions on the basis that questions of fact existed as to whether BJ’s lacked constructive notice of a defective or dangerous condition of the subject machine, and both parties appealed.
The Appellate Court found that Defendants’ submissions on the motions established that no one, including Plaintiff herself, observed any defect in the machine or metal panel that injured Plaintiff.  The evidence Defendants presented demonstrated that the machine had been inspected and tested on the morning of the incident, that an employee stationed directly in front of the machine prior to the incident had observed nothing abnormal about the machine, and Plaintiff had observed nothing abnormal about the machine while standing in line waiting to use it. Finding that Defendants met their initial burden of establishing that BJ’s lacked constructive notice of the allegedly dangerous or defective condition of the machine and that Plaintiff had failed to raise a triable issue of fact in opposition, the Court reversed the trial court’s decision and granted the motions.

9/30/20            Colini v. Stino, Inc.
Appellate Division, Second Department
Judgment of lower court upheld because plaintiff was unable to identify the reason for her fall; therefore defendant met its prima facie showing of entitlement to judgment as a matter of law.
Plaintiff Julia Colini brought this action alleging she was injured when she fell in a carpeted party room at a restaurant while attending a luncheon. She alleged she fell because the carpeting was maintained in a dangerous and hazardous condition. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion in and Plaintiff appealed from the judgment.
On appeal, the defendant contended that the appeal from the judgment should be dismissed because the judgment did not bring up for review the portion of the order entered, which granted the portion of defendant’s motion which was for summary judgment dismissing the complaint. The Appellate Court held that contention is precluded by the doctrine of law of the case, citing a decision and order on motion dated October 23, 2018 in which the Appellate Court denied the defendant’s motion to dismiss the appeal on that ground.
The Court agreed with the trial court’s decision to grant the branch of Defendant’s motion which was for summary judgment dismissing the complaint, finding that the defendant had established its prima facie entitlement to judgment as a matter of law by establishing that plaintiff could not identify the cause of her fall without engaging in speculation. Defendant had submitted a transcript of Plaintiff’s deposition testimony in which she testified she did not know what caused her foot to get stuck on the carpeting. Finding that this demonstrated the plaintiff was unable to identify the cause of her fall, the Court then determined a jury would be required to speculate as to the cause of Plaintiff’s fall.


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

With our close proximity to Canada (2.5 miles from our office), many Buffalonians celebrate Thanksgiving on October 12th weekend with our friends and family across the border.  Despite not being able to travel across the border this year, we nonetheless have much to be thankful for as we slowly creep toward the colder months – the weather is crisp, the leaves are beautiful, and the courts have opened up just enough so that litigation practice is creeping back to normal.  Western New York’s Covid rates are down to 1.5% and the Buffalo Bills, despite their loss this week, are having a strong start to the season. Life is grand, and we hope to continue this positive momentum in both our professional and personal lives as an uncertain holiday season looms on the horizon.
We have several interesting cases for you this month. A motion to set aside a jury verdict worth nearly $3 Million dollars was denied where comparable awards were not provided and the verdict was deemed consistent with the evidence after an elderly man suffered destroyed brain function, leading to six months spent in hospice on a ventilator and feeding tube. A motion for summary judgment was denied where decedent’s fall was unwitnessed, leading to questions of fact as to adequate supervision and monitoring. Finally, summary judgment was also denied where questions arose as to the nature of the physician/patient relationship when the physician in question had performed an assessment and ordered testing at co-defendant’s facility.
Until next month, we highly recommend getting out and about – it’s the safest place to be, the leaves really are beautiful, and as we all know, the snow is coming. Go Bills!
September 16, 2020  Rozanne Rosario v. Our Lady of Consolation Nursing and Rehabilitation Care Center, et al.
Appellate Court, Second Department
Question of fact arose as to whether defendant was a treating physician of decedent at the time she sustained injury to preclude summary judgment.
In an action to recover damages for medical malpractice, the defendant, who was the decedent plaintiff’s primary care physician primary for eight years, appealed from a denial of his motion for summary judgment. After suffering a fall at home, 70-year old Martha Rosario (“decedent”) was admitted to Good Samaritan Hospital by defendant .  Thereafter, she was transferred to Our Lady of Consolation Nursing and Rehabilitation Care Center (“OLOC”) for rehabilitation. During her admission to OLOC, decedent’s condition deteriorated, and she was discharged to Good Samaritan Hospital where she was diagnosed with stage II pressure ulcers on her sacrum, an unstageable pressure ulcer on her buttocks, a left heel ulcer, a urinary tract infection with sepsis, hypotension, and pneumonia, and died a week later. Her death certificate lists the immediate cause of death as cardiopulmonary arrest due to coronary artery disease and hypertension, with urosepsis as a significant contributing factor.
Defendant primary care physician moved for summary judgment on completion of discovery, and submitted an expert affidavit stating that the care and treatment rendered by defendant comported with good and accepted medical practice and was not proximately related to any injuries sustained by decedent at OLOC. In opposition, plaintiff submitted an expert affidavit stating that there were triable issues of fact as to the nature of the physician/patient relationship between defendant and decedent while she was at OLOC. Specifically, there was a question as to whether defendant was a treating physician of the decedent at that time, as he performed a physical exam of her and created an assessment and plan which included orders for x-rays and a complete blood count. As such, the denial of summary judgment to defendant was affirmed.
September 3, 2020  Carmen DeJesus v. Good Samaritan Hospital Medical Center, et al.
Supreme Court, Suffolk County
Unwitnessed fall of at-risk patient leads to question regarding adequacy of supervision to preclude summary judgment.
Defendant Good Samaritan Hospital Medical Center (“Defendant”) here moved for summary judgment in an action to recover damages allegedly sustained as a result of medical malpractice, negligent hiring and supervision, and wrongful death. Decedent, an 86-year old woman with history of dementia, vision and hearing impairments, gait impairment, and a history of falls, was a resident of co-defendant’s facility. On December 7, 2008, Decedent was transferred to Defendant’s facility following a fall from her bed which resulted in a left clavicle fracture.
Decedent was placed in a bed six feet from the nurse’s station. While waiting for CT results, Decedent fell out of her bed and sustained multiple additional injuries, including multiple facial fractures and a small parenchymal bleed. Decedent was placed in soft restraints, but was again found on the floor shortly thereafter, with no additional injuries noted.
Decedent’s condition continued to deteriorate, and she was declared dead the following day. Autopsy revealed the cause of death as blunt force trauma and complication of fractures of left clavicle and facial skeleton, and lists atherosclerotic coronary artery disease, chronic pulmonary disease, osteoporosis, and chronic renal disease as secondary causes of death.
Defendant moved for summary judgment on the basis that staff did not deviate from the accepted standard of medical care, and that the care rendered by staff did not proximately cause Decedent’s injuries. In opposition, Plaintiff submitted their expert affidavit which stated that Defendant failed to implement appropriate measures to prevent Decedent from falling, despite her being a clear fall risk. In particular, Plaintiff argued that staff failed to properly monitor her as evidenced by the fact that no one witnessed her fall, and further, that she should have received safety checks at least every 15 minutes. This court determined that this expert opinion was sufficient to raise triable issues of fact as to whether Decedent was appropriately monitored and supervised, and Defendant’s motion for summary judgment was denied.
September 3, 2020                  Frederick Smith v. Northern Manhattan Nursing Home
Supreme Court, New York County
New York County jury awards nearly $3 million to decedent plaintiff who spent six months on life-support, and motion to set aside verdict as unreasonable denied.
On December 9, 2019, the jury awarded $2,500,000 for the Decedent’s pain and suffering, and $480,000 for his medical expenses. Decedent had experienced hypoglycemia leading to destroyed brain function and spent six months with a tracheotomy on a ventilator and with a feeding tube inserted into his stomach until his passing. The extent of Decedent’s consciousness over that period was uncertain, but he was administered strong pain medications, including morphine and fentanyl, indicating that he did experience pain over those months. Defendant moved to set aside the jury verdict on Plaintiff’s damages on the grounds that the damages awarded were against the weight of the evidence and materially deviated from reasonable compensation.
Decedent was a resident of Defendant’s nursing home facility from December 2008 and was hypoglycemic with low glucose levels that required continuous monitoring. On October 19, 2011, his glucose levels decreased, but Defendant did not monitor this adequately, did not modify his food intake and did not arrange a physician consultation. On October 22, Decedent suffered hypoglycemia leading to anoxic encephalopathy that destroyed his brain function. He never regained consciousness and was transferred to hospice care until he died on April 15, 2012.
In determining whether Decedent was conscious of his suffering or not, it was determined that his loss of physical and cognitive functioning unquestionably constituted physical harm that rose to the level of a violation of the Public Health Law, as opposed to mere negligence, and the jury was instructed to compensate Plaintiff for these harms and losses. Defendant offered no evidence that Decedent was incapable of experiencing pain or discomfort or realizing his inability to function. Defendant was free to persuade the jury that, due to Decedent’s lack of consciousness, his pain and suffering was minimal, but the jury was free to conclude otherwise.
Moreover, Defendant failed to present lower awards for comparable injuries that appellate courts had sustained despite an appeal, as is required in such actions. Defendant did submit lower awards, but these were either in the form of a settlement or an award that was never appealed. The awards were also not comparable, as they either failed to show how long the deceased had suffered between hypoglycemia and death, or the suffering lasted less than one day, in comparison to Decedent’s six months. This Court therefore denied Defendant’s motion to set aside the jury verdict, as the verdict was consistent with the evidence and awarded Plaintiff reasonable compensation for Decedent’s physical and mental harms and losses, including lost enjoyment of life.


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

Dear Readers,
Although this is a non-partisan column, this month we cover how to vote in the State of New York.  This year’s election looks a little different thanks to the COVID-19 pandemic, so here are the nuts and bolts of what you need to know.
Want to Vote by Mail?
Anyone in New York can request a ballot online, by email, phone, mail or fax from their local County Board of Elections—it’s important to note that, unless you are requesting a traditional absentee ballot, you will need to tell your local Board that the basis for your request is “Temporary illness or physical disability”, which is the statewide, approved basis for voting by mail during the COVID-19 pandemic.
If you plan to vote by mail, you have until October 27, 2020 to request your ballot.
Want to Vote in Person?
Local polling places will still be open for those wanting to cast a ballot in person, however, many polling locations have changed because of the pandemic.  Check your polling place here.
Early Voting
Want to beat the crowds? Beginning Saturday, October 24th and ending Sunday, November 11th, you can vote early and in person.  Polling places are generally countywide (meaning you can go to whatever polling place is most convenient for you in your county) and hours do vary.  Check the hours and locations for early voting in your county here.


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

Greetings Subscribers!
Well, it was fun while it lasted. With COVID-19 wreaking havoc on the NFL schedule, it is becoming harder to manage my fantasy teams as we enter the bye weeks. Courts locally continue to embrace technology with the switch to Microsoft Teams, but discovery decisions are few and far between these days.
This month, I report on two cases involving the repeated failure to comply with prior discovery orders. Ignoring discovery demands for 18 months without providing a reasonable excuse for the delay nor a demonstration of a meritorious claim is just asking the court to dismiss your complaint. Instead, the busy practitioner should ask for an extension rather than just ignore discovery deadlines and only where it’s appropriate. Until next issue, stay safe and healthy …

10/06/20          First Equity Realty v Harmony Group, II
Appellate Division, First Department
Defendants’ failure to submit their substitute expert until after the “final extension” of discovery demands did not warrant vacating a prior order denying their request to extend the discovery deadlines.
The trial court denied defendants’ motion to vacate a prior order denying their request to extend an expert disclosure deadline. The Second Department unanimously affirmed the trial court’s decision as the action had been pending for five years and the trial court had previously granted multiple extensions of the expert discovery deadlines.
The Court noted that defendants’ request to submit their substitute expert came less than three months after the trial court had granted them a lengthy extension, over plaintiff’s objection, in what the trial court described as the “final extension” of the expert discovery deadlines. Additionally, the Court stated that while defendants categorized their expert’s withdrawal as “voluntary,” the record reflects that the conflict between them was foreseeable and avoidable.

10/06/20          White v City of New York
Appellate Division, First Department
Plaintiff is not entitled to an order restoring the case after it was dismissed and extending the time to file a note of issue for not providing an excuse for his repeated failure to comply with prior discovery orders and for nor demonstrating a meritorious claim.
The trial court dismissed the complaint and denied plaintiff’s motions to restore the case to active status and to extend its time to file a note of issue and vacate a prior order. The First Department unanimously affirmed the trial court’s dismissal of the complaint because plaintiff violated multiple orders to produce discovery over the course of approximately 1½ years and finally failed to comply with the orders even after the court, over defendants’ strenuous objections, had given him “one last chance” (Husovic v Structure Tone, Inc., 171 AD3d 559 [1st Dept 2019]).
The Court held that plaintiff failed to support either the motion to restore or his motion to vacate with an excuse for his repeated failure to comply or a demonstration of a meritorious claim (Kamara v Ambert, 89 AD3d 612 [1st Dept 2011]; Gal-Ed v 153rd St. Assoc., LLC, 73 AD3d 438 [1st Dept 2010]).


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

Dear Readers,
Welcome to another edition of my column in Premises Pointers. I hope your last month was a good one. My sons have made the transition back to in-person learning at school so far successfully.  Hopefully all of you are doing well.
We have a couple of cases this edition, mostly involving elevators.  In one, competing experts as to whether the elevator maintenance company should have been on notice of a defective condition that led to an elevator free fall doomed their motion for summary judgment. The remaining cases involve actual or constructive notice.  In one, a property owner was deemed to have no notice of a soapy condition the property owner did not create that plaintiff slipped on that only existed ten minutes before the accident. In another, there was an issue of fact as to whether the elevator maintenance company and property management company had notice of a misalignment between the elevator and the floor where the plaintiff’s mother swore in an affidavit she noticed the mis-leveling every day for thirty days, complained and there was a poor inspection report three days before the accident.
Until next time,

October 8, 2020         Orea v. NH Hotels USA, Inc.
Appellate Division First Department
Competing expert claims led to denial of motion by elevator maintenance company

Plaintiff's complaint alleged TEI, through the allegedly negligent course of its performance of inspection, maintenance, and repair work of the elevator at the premises, launched a force or instrument of harm that ultimately caused the injury to plaintiff when the elevator free-fell. In a motion for summary judgment, TEI’s expert opined that the breakage of the elevator chains was not due to any service work performed by TEI. However, plaintiff's expert rebutted TEI's claim and opined that based on how the vertical reciprocating conveyor had jammed, TEI should have been alerted that it needed to examine the chains and sprockets when it repaired the elevator and replaced the chain master links the day before the accident occurred. TEI's employee observed that something had warped the chain master links. After the elevator had been taken out of service for over a month, TEI then placed the elevator back in service and the chains broke the following day. The conflicting affidavits of the parties' experts raised an issue of fact as to whether TEI was negligent in putting the elevator back in service. A Department of Buildings investigator also provided testimony that the breakage in the chains would not have occurred if the elevator had been properly maintained, and that the defect probably had to do with service on the device.
TEI also failed to establish that plaintiff may not invoke the doctrine of res ipsa loquitur. The Appellate Court held an elevator free fall does not ordinarily occur in the absence of negligence, and TEI has not established as a matter of law that plaintiff's own negligence caused this. TEI was the only entity that provided maintenance, service and repair work for this elevator. The fact that TEI may have been in control of the elevator does not preclude the application of the doctrine.

October 7, 2020         Carter v. Nouveau Industries, Inc.
Appellate Division Second Department
Elevator maintenance company may be liable to a passenger for failure to correct a defective condition it had knowledge of or should have found.

On March 23, 2010, the plaintiff allegedly sustained personal injuries when a panel fell from the wall of an elevator located at North Shore University Hospital in Nassau County. The plaintiff commenced this action against, among others, the defendant Nouveau Elevator Industries, Inc. which had been retained to maintain and service the elevators in the hospital. Nouveau commenced a third-party action against Velis Associates, Inc. which installed the wall panels in the elevator bank where the plaintiff was injured. On competing motions for summary judgment, the Appellate Court held that an elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found. Further, a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons . . . where the contracting party has entirely displaced the other party's duty of safe maintenance.  The Second Department held Nouveau failed to demonstrate, prima facie, that it did not owe a duty to the plaintiff in light of the terms of its elevator inspection and maintenance contract. Nor did Nouveau demonstrate, prima facie, either that there was no defect in the elevator that it "ought to have found" or that it used reasonable care to discover such a defect.

As for the third-party defendant, Velis did not demonstrate, prima facie, that it was not negligent with respect to the installation of the wall panel that allegedly fell on the plaintiff. Nor did Velis demonstrate, prima facie, that such negligence was not a proximate cause of the plaintiff's injuries. Thus, Velis’ motion for summary judgment was also denied.

September 30, 2020   Kachele v. Nouveau Industries, Inc.
Appellate Division Second Department
Elevator maintenance company was not liable for alleged mis-leveling that caused accident as it had no actual or constructive notice nor did it create the condition.

The plaintiff, a patient transporter at Lenox Hill Hospital, allegedly sustained injuries on October 4, 2013, when he felt "a pop" in his left shoulder as he was pulling an ICU bed into an elevator on the eighth floor of the hospital. The plaintiff alleged that the floor of the elevator was mis-leveled with the eighth floor, and that this mis-leveling caused the ICU bed to stop. The plaintiff did not observe any mis-leveling at the time of the incident but surmised that there was mis-leveling based on how it felt when the bed stopped and because he had previously observed the elevator mis-leveled.  The plaintiff commenced this action against the defendant, the company retained to maintain and service the elevator, to recover damages for personal injuries allegedly sustained in the accident.
As noted above, an elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.  

The plaintiff did not dispute that the deposition transcripts were otherwise sufficient to demonstrate, prima facie, that the defendant did not create or have actual or constructive notice of a mis-leveling condition. Instead, he argued they should not have been considered as they were unsigned but raised the issue for the first time on appeal. In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. The plaintiff may not rely on the doctrine of res ipsa loquitur because he failed to establish that the accident was one that would not ordinarily occur in the absence of someone's negligence. Therefore, the elevator company’s motion was granted.

September 30, 2020   Diaz v. LaGuardia Express LLC
Appellate Division Second Department
Owner had no actual or constructive knowledge of soapy condition that existed for less than ten minutes before the accident that they did not create.

The plaintiff commenced this action against the defendants to recover damages for personal injuries that she allegedly suffered on February 28, 2016, between 12:00 and 12:30 p.m., when she slipped and fell on soapy water in the service room of the defendants' hotel in Queens. The service room, which was kept locked and not accessible by the guests, led to an elevator which was used by those who worked at the hotel. At the time of the accident, the plaintiff was employed by an independent contractor, which provided cleaning services at the defendants' hotel.

The Appellate Division held a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence.  To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.
Here, as the plaintiff conceded on appeal, the moving defendants met their initial burden as the movants. The parties agreed on appeal that the soapy water condition that caused the plaintiff to fall was created about 10 minutes prior to the accident by an independent contractor that was retained to clean the carpet. Under the circumstances, the moving defendants established, prima facie, that they cannot be held liable for the negligence of this independent contractor that was retained to clean the carpet. The moving defendants also established, prima facie, that they did not have actual or constructive notice of the soapy water condition which appeared 10 minutes prior to the accident. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the moving defendants should be held vicariously liable for the negligence of the carpet cleaning contractor and thus the motion was granted.

September 16, 2020   Napolitano v. Jackson “78” Condominium
Appellate Division Second Department
Failed inspection report three days before accident and mother of plaintiff’s affidavit that she had seen the elevator misaligned every day for thirty days was enough for an issue of fact as to notice.

The plaintiff allegedly was injured when she tripped while stepping into an elevator in a building owned by the defendant Jackson "78" Condominium and managed by the defendants MPJ Realty, LLC, and SLJ Property Management, LLC.

The plaintiff alleged that when she entered the elevator, it was misaligned with the adjacent floor of the building lobby, and that this defect caused her fall. The plaintiff commenced this personal injury action against  those defendants, who moved for summary judgment. A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect.   

The Appellate Division held the property defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through the deposition testimony of their witnesses and an expert affidavit, that no complaints were ever made about misalignment of the elevator, that routine inspections of the building by employees did not reveal the presence of such a condition, and that an inspection conducted of the elevator three days before the accident did not reveal any defects that would cause misalignment.

In opposition, however, the plaintiff submitted, among other things, an affidavit from her mother, who then resided in the building, asserting that during the month preceding the accident, she observed misalignment of the elevator almost every day, and that, in response to a complaint about misalignment by another resident, a member of the condominium's Board of Managers had acknowledged the problem in her presence. The plaintiff also submitted evidence demonstrating the documented occurrence of prior similar incidents of misalignment, and an unsatisfactory inspection report for the elevator, completed three days before the accident, which, according to the plaintiff's expert, and contrary to the averment of the property defendants' expert and other witnesses, evinced defects which would cause misalignment. The plaintiff's evidence was sufficient to raise a triable issue of fact as to whether the property defendants had notice of the allegedly defective condition that caused the plaintiff's accident.


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

Greetings Readers:
There is no better time of year in Western New York than October.  As we all brace for the winter months ahead, we are treated to some spectacular weather around this time.  Temperatures in the mid-50s, a nice breeze and the treat of the leaves changing colors makes October easily my favorite month of the year.
One of the treats of this time of year are the local pumpkin patches that seem to sprout up all over the region.  While last year we did take my daughter to a pumpkin patch, she was only about 2-3 months old at that time so it was essentially just a quick photo op.  This year…mayhem.  Unleashing an incredibly brave and mobile toddler into a field full of pumpkins, hay bales and farm animals was an adventure to say the least.  Aside from all the action, I couldn’t help but hypothesize on the various different types of torts that could occur at such a venue.  Luckily we made it out there before anyone breached any duties owed to us, but I can’t help but think one of these monthly columns will necessarily involve some chaos that occurred at one of these locations.
This month, I highlight three new cases from around the state.  Notably, it appears from the docket search that the Fourth Department was active recently so some cases from the same are pointed out.  First, Monnin is a good example of the value of deposing not just the parties to a lawsuit, but also non-party witnesses (especially ones that are biased in favor of your client…).  Next, the Qoku case is yet another good example of how the Espinal Doctrine can work to help third-party contractors get out of tort lawsuits.  Lastly, Ayers highlights one of the more common ways that plaintiffs can successfully raise an issue of fact in cases where a defendant is pushing a “storm-in-progress” defense.
Stay safe all.

October 2, 2020                      Monnin v. Clover Group, Inc.
Appellate Division, Fourth Department
Fourth Department reverses lower court’s grant of summary judgment in favor of defendant landowners based upon issues of fact concerning constructive notice.
Plaintiff was injured when she allegedly slipped and fell on some ice located on a sidewalk of property owned and managed by the various defendants.  At the time, the plaintiff was returning to her car after providing home health care to one of the property’s tenants.  The defendants were granted summary judgment by the trial court on grounds that they lacked constructive notice of the hazardous condition prior to the plaintiff’s fall.
The Fourth Department ultimately ruled that the trial court was incorrect and that various issues of fact existed as to whether or not the defendants had constructive notice that the subject sidewalk was in a hazardous condition due to the presence of ice.  The key evidence supporting plaintiff’s position came from the tenant whom the plaintiff treated.  That tenant testified that the subject sidewalk often becomes icy due to runoff from melting snow on other parts of the property.  Most importantly, the tenant testified that he had personally complained to the defendants on multiple occasions prior to the accident and was told that there was “nothing [defendants] could do about it because “snow melts.”  The Court held that such evidence was sufficient to raise an issue of fact as to whether or not the defendants could be considered to have had constructive notice that the subject sidewalk would become hazardous in certain circumstances

October 7, 2020                      Qoku v. 42nd Street Development Project, Inc.
Appellate Division, Second Department
Second Department overturns lower court’s denial of contractor’s motion for summary judgment based upon Espinal concepts.
Plaintiff was injured when she allegedly slipped and fell on a grease spill located on a loading dock in New York City.  One of the defendants sued was janitorial service that was hired by an adjacent landowner to perform some maintenance duties on said dock.  Defendant moved for summary judgment on the grounds that it owed the plaintiff no duty pursuant to the Espinal line of cases.
In overturning the lower court’s denial of defendant’s motion, the Second Department cited the longstanding law that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” unless one of the three Espinal exceptions applies.  Here, the plaintiff tried to argue that the case fell into the exception of a contactor “launching a force or instrument of harm.”  However, it was evidence from her testimony that the plaintiff (i) did not know where the grease came from, (ii) did not know who was supposed to clean the grease and (iii) never saw any employee of the janitorial defendant ever work on the dock.  The Court rightly determined that the plaintiff’s whole case against the janitorial defendant was speculative and awarded summary judgment.

October 9, 2020                      Ayers v. Pioneer Central School District
Appellate Division, Fourth Department
Fourth Department overturns lower court’s grant of summary judgment in favor of defendant because issues of fact existed as to whether or not there was a “storm-in-progress.”
Plaintiff was injured when she allegedly slipped and fell on ice in the defendant school’s parking lot.  The School moved for summary judgment on the grounds that it did not owe the plaintiff a duty to correct and address the icy condition of the parking lot because there was a storm in progress” at the time. 
The Fourth Department began its analysis by highlighting that initially defendant did present a prima facia case that there was an ongoing storm at the time of plaintiff’s fall.  This was established by the combination of deposition testimony, weather radar data and a meteorologist’s affidavit all showing that it had been snowing on the date of the accident from the early morning through the plaintiff’s fall at around 3:00PM.  However, the Fourth Department determined that the plaintiff raised an issue of fact by presenting evidence that, when viewed as true, suggested the possibility that the ice may have predated the day’s storm.  Given that possibility, the Court decided that summary judgment in favor of defendant was improper and reinstated the plaintiff’s action.


Jody E. Briandi
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Todd C. Bushway
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V. Christopher Potenza
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Anastasia M. McCarthy
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Marc A. Schulz
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Brian M. Webb
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Rob E. Hewitt
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Patrick B. Curran
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Stephanie L. McCance
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