Premises Pointers - Volume IV, No. 6


Premises Pointers
Watch your step!

Volume IV, No. 6
Friday, November 13, 2020
A Monthly Electronic Newsletter


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

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



This month’s edition is filled with football news (Marc Schulz who is our in-house fantasy football officiate), Halloween happenings (Rob Hewitt’s kids had some pretty cool costumes), legislative updates (Anastasia McCarthy has her pulse on the legislative news front), good thoughts and wishes for Thanksgiving (from all of our Premises Pointers contributors), and unfortunately reminders we are all still dealing with COVID. The common thread is that everyone is hanging in there and pushing forward as we look forward to a reset in 2021.
On a positive note, I am thrilled to report Hurwitz & Fine has been ranked as a Tier One law firm for 2021 in eight practice areas, once of which is Personal Injury Litigation – Defendants and another being Insurance Law Litigation, by U.S. News & World Report. Click here for more details. This would not be possible without the hard work of our talented lawyers and dedicated support staff.
Another positive is that Thanksgiving is around the corner and an opportunity for all of us to unwind a bit. At the firm, we’ve decided that giving back to the community would be a good way to navigate the uncertainty brought on by the pandemic. Our Firm Safety & Wellness Committee has organized a holiday gift drive centered around sponsoring a family for the holidays. This year, we have decided to adopt-a-family through Stone’s Buddies, a program at Oishei Children’s Hospital, which supports patients and families coping with chronic illness and medical complexity. The program looks to serve these “frequent flyers” and underprivileged families by providing sources of happiness, support, and friendship while they go through a difficult time. Here is a photo of our tree with “ornaments” containing wish list items for the family. Our generous employees at the firm have been taking ornaments off the tree throughout the week and will be purchasing the wish list items for the family.

I would love to hear from you on what your businesses and offices are doing to give back to the community – send me an e-mail or photo for inclusion in our next edition of Premises Pointers. Happy Thanksgiving to all!


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]

11/5/20            Velocci v. Stop and Shop
Appellate Division, 1st Department
Judgment of lower court upheld because defendants had met their burden of establishing that they did not create the hazardous condition and that they lacked both actual and constructive notice
Plaintiff brought this action alleging he was injured when he slipped and fell on water on the floor in front of an ice machine in a Stop and Shop supermarket. Defendants moved for summary judgment. They argued that neither Stop and Shop nor Mr. Luisi, the store manager, created or had actual notice that there was water on the floor before the accident, and that Luisi denied that anyone else had experienced an accident in the area where Plaintiff fell. Defendants also contended that they lacked constructive notice of the condition, which was supported by Plaintiff’s own testimony in which he admitted that the water on the floor was neither visible nor apparent. Defendants further argued the water was not on the floor long enough for employees to discover and remedy it before the accident. Defendants submitted an affidavit from the porter in which she stated she had reviewed the “Clean Sweep Log” for the date of the incident, along with a photograph of the accident location, and attested she had inspected the location approximately an hour and a half before Plaintiff fell. She asserted she would have indicated “hazard” on the log if she had seen water at the accident location during her inspection.
In opposition to Defendants’ motion, Plaintiff alleged that the water was a recurring condition, contending that Defendants knew water regularly accumulated in the area where Plaintiff fell. Plaintiff also argued that the porter’s affidavit was insufficient to establish that Defendants lacked constructive notice, because it described only the supermarket's general inspection practices and did not state which areas the porter inspected before the accident. In support of his opposition, Plaintiff and his wife submitted affidavits stating that they had shopped at the supermarket about once a week for the past five years and claimed to have seen on several occasions before the accident that there was no mat or carpet in front of the freezer. They also stated they had seen that there was water on the floor after bags of ice were left on the floor in front of the freezer. Plaintiff also submitted an expert affidavit from a professional engineer who opined that the ice chest as installed and maintained by defendants caused the water to be on the floor where plaintiff fell. The engineer claimed that there was a long-term generating of water from the replenishment of ice which Defendants failed to address. Plaintiff submitted an expert affidavit from a second expert  A second plaintiff's expert submitted an expert affidavit stating it was custom and practice in the industry to place cones and an absorbent rubber mat or carpet on the floor in front of a freezer, because it was known that water would constantly accumulate there when the bags of ice were placed into or removed from the freezer.    
The Supreme Court granted Defendants’ motion for summary judgment, finding that Defendants had established that the area near the freezer had been inspected prior to the accident and there was no indication of any hazardous condition. The Court found that Plaintiff’s deposition testimony confirmed that the water on the supermarket's floor was not visible or apparent when Plaintiff fell, and that his statements that customers or employees created the condition by placing bags of ice on the floor was speculative. The Court also found no evidence that there had been a prior accident in the area where Plaintiff fell or that the water on the floor was a recurring condition.
On appeal, the Appellate Court held that the lower court properly granted Defendants' motion for summary judgment. The Court also stated that a defendant establishes that it lacked actual notice when it produces a witness who can testify that no complaints about the location were received before the accident, and there were no prior incidents in that area before the plaintiff fell.
The Court found that Defendants sustained their initial burden of establishing that their employees did not cause or create the dangerous condition, which was supported by Plaintiff’s own deposition testimony. Defendants also established that the water was not on the floor for a sufficient period of time to charge them with having constructive notice that it was there. This was supported both by the porter’s affidavit and the deposition testimony of both Plaintiff and his wife, in which they both established that the water puddle that caused Plaintiff's fall was clear and without any footprints or marks. The Court found that Defendants also sustained their burden of showing that they lacked actual notice of the water on the floor before the accident, supported by the fact that there was no testimony as to any complaints about the area before the accident. The Court also pointed to the fact that Defendants had presented evidence regarding the Clean Sweep Log showing the supermarket was being cleaned daily and that the accident location was inspected about an hour and a half before Plaintiff fell. Further, the Court noted that the deposition testimony established that neither Plaintiff nor his wife complained to Defendants before the accident. The affidavits submitted by Plaintiff and his wife in opposition, attesting to several occasions before the accident where they saw water being deposited onto the floor when customers placed bags of ice in front of the ice freezer before purchasing them, were in direct conflict with their deposition testimony. These statements were also contradicted by evidence submitted by Defendants that customers retrieved the ice after purchasing it.
Lastly, the Court found that Defendants sustained their burden of making a prima facie showing that they had no actual notice of the water on the floor before the accident. Defendant store manager Luisi testified that he was unaware of any complaints about the area which were made before the accident. Further, the testimony of both plaintiff' and his wife establishes that they did not complain to defendants before the accident. The Court also found that Plaintiff's expert affidavits failed to raise a triable issue of fact as to whether Defendants were negligent.
10/28/20          Braddy v. Companies
Appellate Division, 2nd Department
Judgment of lower court reversed because defendant met its prima facie showing of entitlement to judgment as a matter of law based on evidence it owed no duty of care
Plaintiff commenced multiple actions to recover for personal injuries she sustained that were allegedly caused by a defective door at a store located in Brooklyn. The actions were consolidated and Defendant Vixxo Corporation, incorrectly sued in the action as First Service Networks, moved for summary judgment dismissing the complaint and related cross claims. The Supreme Court denied Vixxo’s motion in an order dated March 20, 2019, and Vixxo appealed.
The Appellate Court noted that premises liability, as with liability for negligence generally, begins with duty, and that the existence and extent of a duty is a question of law. The Court found that Defendant Vixxo demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating, through its submissions, that it owed no duty of care to the plaintiff and, thus, could not be held liable for the plaintiff's alleged injuries. The Court also found that the parties opposing the motion failed to raise a triable issue of fact. Although they contended that the motion was premature, they failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition were exclusively within Vixxo's knowledge and control. Additionally, in opposition to Vixxo's prima facie showing of its entitlement to judgment as a matter of law dismissing the cross claims insofar as asserted against it, the Court found that the parties opposing the motion failed to raise a triable issue of fact.
Finding that the Supreme Court should have granted Vixxo's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, the Appellate Court reversed the judgment of the lower court.


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

As the season of giving thanks comes closer, the seemingly impending second shutdown inches nearer here in Western New York. The alarmingly rising Covid positivity percentages are offset only by the unseasonably warm, sunny days and the fantastic football we have been enjoying. One might even forget, for a few moments, that Erie County hospitalizations are firmly in the Yellow Zone when the Bills lead the AFC East; the Patriots struggle against the 0-8 Jets, and Tom Brady plays the worst game of his career. Not to fear however, as we have Governor Cuomo’s snazzy infographics to remind us of the potentially pending PAUSE.
This month we present two cases dealing with the applicability of punitive damages from Public Health Law section 2801-d. In the first, the Appellate Court reaffirms that medical facilities run by municipalities are not subject to punitive damages. In the second, the Court determined that the statute of limitations for sexual offenses pursuant to CPLR 213-c encompasses both intentional and negligent conduct that may result in an assault, but that a detoxification and rehabilitation facility was not governed by the Public Health Law and therefore not subject to punitive damages under the statute. Finally, we present a case in which plaintiff’s demands for extensive discovery were unwarranted following denial of class action certification.
Until next month - stay positive, test negative, and Go Bills!
October 2, 2020  Marlene Cornell, as Administrator of the Estate of Samuel Condello, v. County of Monroe
Appellate Court, Fourth Department
Affirming the general rule that a municipality is not subject to punitive damages under Public Health Law 2801-d
In an action to recover punitive damages for violations of Public Health Law 2801-d, defendant County of Monroe was awarded partial summary judgment dismissing the claim for punitive damages on the basis that punitive damages could not be awarded against a municipality pursuant to Public Health Law 2801-d. Decedent was a wheelchair-bound resident at Monroe Community Hospital when he was deprived of his manual wheelchair by the hospital’s executive director. He thereafter deteriorated and died.
Although the plain language of the Public Health Law permits punitive damages against a medical facility where a deprivation of a patient’s rights is found to be willful or in reckless disregard to the patient’s rights, as a general rule “the State and its political subdivisions are not subject to punitive damages.” Further, the twin justification for punitive damages – punishment and deterrence – are hardly advanced when applied to a governmental unit, and a statute in derogation of the sovereignty of a State must be strictly construed, waiver of immunity by inference being disfavored.
The Appellate Court here held that the Public Health Law does not clearly, expressly and specifically waive the municipalities’ sovereign immunity, and there is no indication that the legislature discussed, debated, or even contemplated exposing municipalities to punitive damages. The decision of the Supreme Court was therefore affirmed.
November 5, 2020                  Bernadette Gutierrez v. The Mount Sinai Hospital et al.
Appellate Court, Second Department
Holding that the statute of limitations pursuant to CPLR 213-c encompasses both intentional and negligent conduct that may result in an assault. Additionally, a detoxification and rehabilitation center is not subject to punitive damages under the Public Health Law 2801-d
This action stems from a lawsuit to recover damages for assault, negligence and violations of Public Health Law 2801-d, in which plaintiff appeals from a dismissal of her first and sixth causes of action. Plaintiff was a patient at Defendant’s medical facility where it is alleged that she was assaulted.
The trial court held that Plaintiff’s first cause of action for assault was barred by the one-year statute of limitations for intentional torts pursuant to CPLR 215. This Appellate Court however determined that this action was timely pursuant to the statute of limitations for sexual offenses found in CPLR 213-c, as the express language of the statute encompasses both intentional and negligent conduct that may have resulted in the assault.
The Appellate Court further held that the trial court was correct in dismissing plaintiff’s sixth cause of action premised upon the Public Health Law. A detoxification and rehabilitation facility is not a facility governed by the Public Health Law, and is therefore not subject to the private right of action available under PHL 2801-d.
October 23, 2020  Joseph Olmann, et al. v. Willoughby Rehabilitation and Health Care LLC, et al.
Supreme Court, Kings County
Following denial of class certification by the Second Department, there was no longer a basis for the broad discovery demanded by Plaintiff
Following a Second Department decision denying class certification, this Trial Court turned to outstanding motions concerning the disclosure of the Minimum Data Sets records and staffing levels. The Minimum Data Sets, or MDS, are calculated for residents at the facility and reported to government regulatory agencies and may possibly reflect on the level of care provided to residents at the facility as it is used as part of the clinical assessment of residents. Defendant objected to this production as it involved hundreds of thousands of pages of HIPAA-protected medical information concerning thousands of individual residents, and thus were overly broad and unduly burdensome.
The Trial Court held that, as class certification had been denied, there was no longer a basis for discovery of both the MDS records and staffing records for the entire facility, both of which were only ordered as pre-certification discovery in contemplation of class action. Defendant was instead ordered to provide staffing records and other relevant responses to plaintiff’s demand for “all records regarding the work schedules and assignments of all personnel, including nurses and nursing assistants, who provided care and treatment to Plaintiff during the relevant time period.”



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

Dear Readers,
As we move through fall, I find myself constantly surrounded by leaf blowers. Today, I actually watched a person climb onto his roof and blow leaves off of the roof and gutters and into his landscaping.  I guess what I am trying to say here is there’s not too much going on in my world at the moment.  
Anyway, Governor Cuomo continues to clean off his desk in advance of the 2021 legislative session. This month’s column summarizes an interesting anti-SLAPP bill that expands New York’s earlier anti-SLAPP law.
New York Expands Protections of Free Speech and Petition Rights by Expanding Anti-SLAPP Law
Earlier this week, Governor Cuomo signed S.52A/A.5991A into law, which expands protections against SLAPP lawsuits. So, what is SLAPP?  SLAPP lawsuits (“Strategic Lawsuits Against Public Participation”) are frivolous lawsuits, typically filed by wealthy individuals and/or entities, with the intention of harassing and/or intimidating others into remaining silent. The plaintiffs in these cases weaponize the cost and time-consuming nature of litigation to keep others from exercising their rights to free speech and/or petition.
While not an entirely new law, this piece of new legislation greatly expands New York’s original anti-SLAPP law by amending the Civil Rights Law as follows:
(1) Provides that costs and attorneys fees shall be recovered upon a demonstration that a SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law.” Entitlement to costs and fees requires the Court to first find that the case has been initiated or pursued in bad faith.
(2) Defines “an action involving public petition and participation to include “a claim related to: i. Any communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest or in furtherance of the exercise of the constitutional right of petition.” Moreover “public interest” is to be broadly construed (“e.g. anything other than a ‘purely private matter.’”).
(3) Calls for a stay on discovery and all hearings or motions once a motion dismiss has been made pursuant to CPLR 3211(a)(7).


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

Greetings Subscribers!
The Bills absolutely dismantled the Seahawks at home in what would have an amazing game to attend. As for fantasy football, things are going well in the Hurwitz & Fine league, with the top four teams currently The Brahs (Barnas), Marc’s Trial Lawyer (Webb), Marc’s Daddy (Peiper), and The Champ (me). Two of those managers are gunning for highest scoring team in the league and are also monthly contributors to Premise Pointers … not too shabby.
This month, I report on the Ruiz case, which reminds us that you must address each of your opponent’s arguments regarding discovery motions, including specifically responding to each demand with the appropriate response or risk losing motion. The Tamburello case involves defendant’s summary judgment motion, which was filed prior to the completion of depositions. I hope each subscriber knows that such a motion is easy for courts to deny on the grounds that it is premature. If you have a discovery issue you wish to discuss, just reach out and I will be more than happy to discuss strategies to help you navigate your discovery issues.
Until next time, stay safe and healthy, and Happy Thanksgiving!

10/15/20          Ruiz v Selzer
Appellate Division, First Department
Plaintiffs complaint was dismissed due to her willful conduct, which was inferred by the Court, because her discovery responses were late, deficient, incomplete, and there were prior discovery motions and orders requiring her responses
The trial court granted defendants’ separate motions to dismiss the complaint, pursuant to CPLR § 3126, based on plaintiff’s failure to comply with her discovery demands. The First Department unanimously affirmed. Although plaintiff asserts that she complied with all of her discovery obligations, the Court noted she failed to respond to defendants’ specific allegations of her discovery deficiencies. The record also showed that while plaintiff did provide at least some discovery, some of it was provided late or in improper form, there were still missing responses, and depositions were never completed.
Additionally, plaintiff’s failure to comply with her discovery obligations had been the subject of multiple prior motions to dismiss, god faith letters, and discovery stipulations and orders. Therefore, the Court inferred willfulness such that plaintiff’s complaint was dismissed.

10/21/20          Tamburello v Rubino
Appellate Division, Second Department
Defendant’s motion for summary judgment seeking dismissal of the complaint should have been denied as premature due to conduct at the depositions
Plaintiff allegedly was injured when she slipped on a staircase in defendant’s house. Before depositions were completed, the trial court granted defendant’s motion for summary judgment dismissing the complaint. Defendants filed their motion only days after one of the defendant’s left her deposition before it was completed and defendant’s attorney refused to allow plaintiff to depose codefendant, who was also present at that deposition.
The Court held plaintiff’s attorney was not at fault for the failure to complete the depositions of these two witnesses and could not conclude that the discovery afforded to plaintiff was sufficient without defendants’ depositions. Accordingly, the Court reversed the trial court as it should have denied defendants’ motion for summary judgment dismissing the complaint as premature.


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.  Hope you had a Happy Halloween. My sons dressed as Skeleton from Minecraft and Spider-Man being taken over by his enemy Venom.  I hope you have a very Happy Thanksgiving. Despite a difficult year, a pause to give thanks for what we do have will be good for us all.
In the first case we have this edition, there were issues of fact as to whether a maintenance company owed an owner contractual and common law indemnity when an infant plaintiff fell down an elevator shaft her mother had opened because a drop key was accessible to residents. In a second case, the court rejected a new theory of liability not mentioned in the complaint or bill of particulars but raised for the first time in opposition to a motion for summary  judgment. Lastly, in an animal attack case, the Court of Appeals held a vet clinic, due to it special expertise, did not need knowledge of an animal’s vicious propensity to be held liable for negligence to a plaintiff who was injured in the waiting room by a dog that attempted to go after a cat.
Until next time,

November 5, 2020     XX v. Dunwell Electrical Industries, Inc.
Appellate Division First Department
Issue of fact as to whether owner detrimentally relied on maintenance company to maintain and repair elevator

This case involves a fall down an elevator shaft by an infant plaintiff. Plaintiffs commenced this action to recover for personal injuries allegedly sustained by the infant plaintiff (plaintiff) after she fell down an elevator shaft in the cooperative apartment building in which her family resided when the elevator shaftway door opened while the cab was on a different floor. Plaintiff's accident occurred when she backed into the elevator shaft in the building's lobby without the cab there after her nanny had used a "drop key" to unlock the shaft door. The drop key was left accessible on a ledge in the building lobby so residents could open the shaft door to access the elevator.
A New York City elevator inspector, inspected the elevator in December 2013, three months before the accident, and issued a violation. He testified that, pursuant to code, such an elevator may only be operated by a trained and qualified operator with no passengers other than those transporting freight, and access to drop keys was restricted to qualified elevator personnel and to building owners, who were required to keep them secured behind a locked panel for emergency use only. The inspector found that the elevator shaftway door did not have an operable parking device, which prevents the door from being unlocked with a drop key if the elevator cab is not present on that floor.
Pursuant to its management agreement with the owner, defendant Synoptic agreed to "provide advice and consultation based upon its expertise in the field of property management . . . and do all things reasonably deemed necessary or desirable by the Owner for the proper management of the Building." The agreement required Synoptic to: “At Owner's sole cost and expense, [to] cause the Building to be maintained in such condition as may be deemed necessary or advisable by the Owner, upon advice and consultation with the Agent . . . and cause repairs and alterations of the Building to be made, including . . . electrical, plumbing, steamfitting, carpentry, masonry, elevator, decorating and such other incidental alterations or changes therein as may be proper or desirable.
Additionally, Synoptic was required to recommend and, with the approval of owner's board, cause to be done all things necessary to comply with governmental orders and violations, establish and coordinate with contractors' annual or regular inspections when customarily required to maintain the building, and inspect the property monthly and advise regarding required or recommended repairs
Based on deposition testimony of others, including the owner's board president and plaintiffs, the Court found the owner hired Synoptic with the understanding that it would run the building on a daily basis, including handling any issues with the elevator.
The Court fund Synoptic’s argument it had not fully displaced the owner as unavailing. A contracting party may not be liable in tort to a noncontracting third-party for its negligent performance unless it launches a force or instrument of harm by creating or exacerbating an unreasonable risk of harm, the noncontracting third party detrimentally relies on its performances, or it completely displaces the other party's duty to maintain premises safely.  The management agreement obligated Synoptic to, inter alia, ensure the building was maintained, repairs and alterations were performed, and violations were remedied. It was also to inspect the building monthly to advise as to required and recommended repairs, coordinate with contractors for regular inspections customarily required to maintain the building, hire employees necessary to maintain and operate the building, and purchase supplies. It further had the authority to undertake emergency repairs and outstanding violations, including with regard to the elevator, without the owner's. The Court found whether Synoptic made the repairs itself or was qualified to do so is irrelevant as to whether it owed plaintiff a duty. Rather its duty arises from its contractual obligation under the comprehensive management agreement obligating it to, inter alia, maintain the property and cause needed repairs to the elevator.
Therefore, issues of fact existed as to whether plaintiffs detrimentally relied on Synoptic to perform its contractual duties to maintain, cause repairs to be made to, and correct violations regarding the elevator and whether Synoptic launched a force of harm by providing residents access to the drop key to use the freight elevator, since they had notice  that residents were using the drop key to access the freight elevator.
The Court held that the  infant plaintiff stepping into the elevator shaft without looking was not an intervening, superseding cause of the accident as a matter of law, but rather a question of fact existed as to whether it was a reasonably foreseeable danger from providing residents a drop key that could open the shaftway door without the elevator present.
Because issues of fact exist regarding Synoptic's culpability, it was not entitled to dismissal of the common-law indemnification and contributions cross claims against it. Moreover, since issues exist regarding whether it failed to perform its obligations under the management agreement, it was not entitled to dismissal of the owner's contractual indemnification cross claim against it.

October 29, 2020       Mitchell v. 423 West 55th Street
Appellate Division Second Department
Plaintiff could not introduce new theory of liability in opposition to summary judgment motion that had never been raised in the complaint or in any bill of particulars

In this case, an out of possession landowner made a prima facie showing that it could not be held liable for plaintiff's injuries because it was an out-of-possession landlord with no duty to clean the ramp on which plaintiff fell, no structural defect was alleged to have caused the accident, and it neither caused nor had notice of the cause of the accident, which plaintiff testified was oil dripping onto the ramp from the sprinkler pipe overhead. In opposition, plaintiff stated that he was not claiming that defendant was responsible for the condition of the ramp but was contending that the oily liquid had leaked from the elevator machine room, which, pursuant to its lease agreements, defendant was required to maintain. 
On appeal, plaintiff's sole argument is that he did not introduce a new theory of liability but merely explained where the oily substance had come from. However, defendant was never placed on notice that plaintiff would allege that the oil leaked from the elevator machine room, which is on the roof of the building, rather than from the sprinkler pipe above the ramp. He did not so allege in the complaint, in the bill of particulars or in the supplemental bill of particulars, and he did not so testify at his deposition. Thus, the lower court correctly characterized plaintiff's opposition as raising a new theory of liability for the first time and rejected it. The Appellate Court found, in any event, plaintiff failed to raise an issue of fact as to whether the oily substance had dripped down onto the ramp from the elevator machine room. His expert's affidavit, which shows that the expert never visited the premises or inspected the elevator machine room on the roof, was deemed speculative.

October 22, 2020       Hewitt v. Palmer Veterinary Clinic PC
Court of Appeals
A vet clinic did not have to have notice of an animal’s vicious propensities to be liable for a negligence claim due to their expertise
Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, plaintiff Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla's leash back to her owner, Vanilla saw plaintiff's cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.
Plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident. The complaint alleged that the vet had a duty to provide a safe waiting room, that the vet breached that duty by failing to exercise due care and by bringing an "agitated, distressed" dog into the waiting area, and that the vet knew the dog Vanilla had vicious propensities and was in an agitated and aggressive state.

Plaintiff subsequently filed supplemental bills of particulars, wherein she alleged that the clinic was negligent in bringing an agitated and aggressive dog into the waiting room and for failing to adjust the dog's collar to prevent it from getting loose.
Plaintiff argued the vicious propensity standard does not apply to a vet clinic. Under existing precedent, an owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal's vicious propensities Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities. The Court of Appeals agreed.
The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard.  However, the Court held it did not apply to the vet clinic. The Court found it was undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.
The Court of Appeals held that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff's claim. A negligence claim may lie despite Palmer's lack of notice of Vanilla's vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care.


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

Greetings Readers:
To be frank, given the tremendous quantity of news these days, attempting to find an amusing anecdote to start the column seems increasing difficult.  Nevertheless we must push on! 
We are quickly approaching the holiday season and the best holiday of the year – obviously Thanksgiving – is only a few short weeks away.  Regardless of how Thanksgiving takes shape this year, whether it be fewer people, more (sigh) videoconferences or any other potential changes, one thing is for sure: my little one and I are going to make a giant mess!  Given the fact that she has an uncanny ability to make a mess out of literally anything these days, one can only image the chaos she will sow when presented with servings of mashed potatoes, stuffing, gravy, cranberries and whatever other delightfully messy and throwable foods are served.  While times may be rough for a variety of reasons, its important to remember that nothing has the ability to cheer you up like sharing an unnecessarily large meal of comfort food with the ones you love and I wish everyone a happy and safe November holiday season.
This month we highlight two cases from the Appellate Divisions that touch on the topics that we have all grown accustomed to recently.  First, Mister, aside from being an example of intra-familial litigation that is sure to go over poorly during Thanksgiving, illustrates some interesting concepts type to constructive notice based on patterns of events.  Next, Anderson gives some insight into the types of evidences that plaintiffs can be successful in highlighting when attempting to avoid summary judgment based on a storm-in-progress defense.
Enjoy Turkey Day and stay safe all!
November 5, 2020                  Mister v. Mister
Appellate Division, Third Department
Third Department affirms lower court’s denial of defense summary judgment due to pattern of similar events suggesting constructive notice on the part of defendant
Plaintiff was injured when she alleged slipped and fell while going down the front porch steps of the defendant’s home.  At the trial level, the defendant moved for summary judgment on the grounds that (i) the cause of the plaintiff’s fall were pine needles on the steps as opposed to the steps themselves (ii) that the steps were properly maintained and (iii) even if defective, defendant had no notice of the defect prior to the fall.  The trial court denied defendant’s motion and defendant appealed.
In affirming the lower court’s denial of the defendant’s motion, the Third Department cites to a variety of useful and often-used tenants of property law that are worthy of saving for use in future motions.  Specific to this particular case, the key evidence that the Court focused on was that apparently people slipped and fell on these specific steps quite often – even per the defendant’s own testimony.  The Court noted that “[a] party who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific [recurrence] of that condition”  Applying that to this case, the Court found that the defendant could easily be considered to have had notice that the steps would get slippery when wet and covered in needles and that was sufficient to create a question of fact.  Aside from that useless tidbit of case law, this opinion also highlights the importance of deposing multiple non-parties in these types of cases, as it was the quantity of non-party testimony that really helped the plaintiff in this matter.

November 5, 2020                  Anderson v. NYC Housing Authority
Appellate Division, First Department
First Department reverses lower court’s grant of summary judgment to a defendant based upon issue of fact concerning notice and the applicability of the “storm-in-progress” defense
Plaintiff was injured when he alleged slipped and fell on “dirty” ice near his residence.  Defendant, who was charged with maintaining the area in a safe condition, was granted summary judgment by the trial court based on an argument centered around a lack of constructive notice.
In reversing the lower court’s decision, the First Department highlighted a variety of pieces of evidence that make one wonder how the lower court could have initially ruled in the defendant’s favor in the first place.  First, defendant’s storm-in-progress argument was flatly undermined by the meteorological records that suggested only 0.05 inches of snow fell on the day in question, not to mention that it fell after the incident.  Next, the defendant’s own expert proffered evidence that suggested the conditions in the days leading up to the incident were ideal for existing snow to thaw and then refreeze as ice, one of plaintiff’s arguments.  Lastly, the plaintiff’s repeated descriptions of the ice as “dirty” was sufficient to raise questions of fact as to how long said ice existed.  Ultimately, the evidence was simply overwhelmingly in support of overturning the lower court’s erroneous decision.


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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