Premises Pointers - Volume IX, No. 1

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.

NOTE FROM THE EDITOR:

Happy Summer!
 
We’re excited to share updates from our General Litigation team, including the addition of two talented attorneys to our Melville office: 

• Rachel M. Epstein is a litigation associate on the firm’s General Litigation team, representing individuals and businesses in a wide range of civil matters, including personal injury, premises liability, and construction accidents. She brings valuable experience in defense litigation across multiple practice areas, as well as a strong academic background from Albany Law School and The Ohio State University.
• Cecilia Proano joins Hurwitz Fine as special counsel. She brings 25+ years of experience defending businesses and individuals in high-exposure bodily-injury and property-damage cases, securing favorable jury verdicts, arbitrations, mediations, and motion wins. A CUNY Law alumna with a B.A. from St. John’s University, Cecilia is active in the Latino Lawyers Association of Queens County and the Long Island Hispanic Bar Association, and recently spoke at the United Nations on “Women in the Law.”

In this issue, we’re also covering key developments in wrongful death and survivors’ rights legislation:

• A newly revised version of the Grieving Families Act has passed the New York Legislature. If signed, this law would dramatically expand recovery in wrongful death claims. Litigation attorneys Michael J. Williams and Jeremiah E. Lenihan provide insight on the bill’s implications here.

• Governor Hochul previously vetoed the Grieving Families Act due to concerns over unexamined costs. Could proposed legislation expanding rights for sexual and correctional violence survivors face a similar outcome? Litigation attorney Michael J. Williams explores the potential legislative roadblocks in our latest legal alert here.

We hope you enjoy the updates and have a safe and restful summer!

-Jody
 

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.

Labor Law Pointers:  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:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at emm@hurwitzfine.com to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

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

Retail defendants in two separate lawsuits, one pending in the Southern District of New York and another pending in the Eastern District of New York were both granted summary judgment. Both cases turned on the plaintiff’s failure to offer sufficient evidence of notice of the dangerous condition. In the first case, the condition was clear liquid on the floor near the checkout area and the second case was a struck by case when a case of tiles fell on the plaintiff.
 
6/06/2025      Cooper v. Wal-Mart Stores East, Inc.
United States District Court, Southern District of New York
Summary judgment granted to retail defendant - the court held that the 5 minutes and 41 seconds the liquid was on the floor before plaintiff’s fall was insufficient as a matter of law to establish constructive notice.

The plaintiff slipped and fell on a clear liquid spill near the self-checkout area of a Walmart store. Surveillance video showed the spill was created by another customer 5 minutes and 41 seconds before the fall. Plaintiff did not see the spill before falling. The spill contained no debris, track marks, or footprints other than the plaintiff’s. Walmart employees were working in the area but did not appear to notice the spill. As well established, New York state law governs the substantive slip-and-fall claim. Federal law governs procedural aspects, including the summary judgment standard. The court noted that the fact that the plaintiff did not see the spill before falling, coupled with the lack of evidence that others noticed it, indicated the spill was not visible and apparent. Further, New York courts have consistently held that periods of time comparable to or greater than the 5 minutes and 41 seconds here are insufficient as a matter of law to establish constructive notice. Plaintiff failed to provide evidence of a Walmart policy requiring inspections at specific intervals or that Walmart failed to conduct required inspections. The court granted Walmart's motion for summary judgment, dismissing Cooper's case.
 
6/04/2025       Jing Yung Wang v. Home Depot U.S.A., Inc.
United States District Court, Eastern District of New York
Summary judgment granted to retail defendant - plaintiffs failed to establish that any hazardous condition with the tile boxes was visible and apparent or existed for a sufficient length of time for Home Depot to have constructive notice.

The plaintiff was shopping for tiles at Home Depot when a box of tiles fell on his feet. He did not notice anything unusual about how the tile boxes were stacked before the accident and had no idea what caused the box to fall. There was no evidence of how long any hazardous condition existed before the accident. Home Depot asserted the tiles are delivered pre-stacked by vendors and merchandised as-is. In opposition to the defense motion, plaintiffs provided no affirmative evidence that Home Depot improperly stacked the tiles or created any hazardous condition. There was no evidence Home Depot received complaints or was otherwise alerted to any dangerous condition with the tile boxes before the accident. Plaintiffs failed to show the alleged hazardous condition was visible and apparent or existed long enough for Home Depot to discover and remedy it. The court granted Home Depot's motion for summary judgment, dismissing both the negligence claim and derivative loss of consortium claim.

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

Hello Subscribers,
 
This month’s edition contains a variety of discovery cases, including several involving purported amended bill of particulars or supplemental bill of particulars. Leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise. However, once discovery has been completed and the case is certified for trial, a party will not be permitted to amend the bill of particulars except on a showing of special or extraordinary circumstances. Pursuant to CPLR 3043(b), a party in a personal injury action may serve a supplemental bill of particulars,” [p]rovided however that no new cause of action may be alleged.” A supplemental bill of particulars merely amplifies and/or elaborates on facts and theories already set forth in the original BOP but cannot raise new theories of liability.
 
If you know the difference between an amended BOP and supplemental BOP, please reach out and explain it to me. Until next issue, enjoy summer!

Marc

03/26/2025            Nunez v City of New York
Appellate Division, Second Department
Plaintiff not entitled to amend his bill of particulars seven months after the filing of the note of issue and certificate of readiness.

Plaintiff fell from a truck. The trial court denied plaintiff’s motion for leave to amend his bill of particulars (“BOP”). The Second Department unanimously affirmed the trial court’s decision because plaintiff failed to demonstrate special or extraordinary circumstances in seeking to amend his BOP several years after commencing this action and more than seven months after the note of issue was filed and the case was certified as ready for trial.

 
03/27/2025            Malerba v New York City Tr. Auth.
Appellate Division, First Department 
Defendants are entitled to striking of plaintiffs’ supplemental bill of particulars that asserted new theories of liability but not to references to specific statutes, codes and regulations.

Plaintiff was servicing a fire suppression tank that was removed from a subway booth in NYCTA’s subway system and brought to his employer’s service/repair facility when the tank suddenly activated, releasing its pressurized contents and injuring plaintiff. The trial court denied defendants’ motion to strike plaintiff’s supplemental bill of particulars. Plaintiffs' complaint and original BOP alleged that defendants were negligent in their responsibilities to, among other things, train as to the service and repair of the fire suppression tank, warn of the potential hazards associated with handling the tanks, and properly safeguard the fire suppression tanks from accidental activation.

Plaintiffs' original BOP also alleged that defendants violated “numerous and various statutes, codes, regulations, rules and/or customs,” but stated “[t]he exact violations are presently unknown as discovery has yet to be completed.” In 2022, twelve years after commencing the action, and one day prior to filing the note of issue, plaintiffs served the contested BOP (the “2022 BOP”). The 2022 BOP, which is labeled “supplemental,” asserted violations of specific statutes, codes and rules, and contained new allegations that defendants negligently awarded the contracts for the project to unqualified vendors and entered into a conspiracy to prevent qualified vendors from performing the work.

The trial court denied defendants’ motion to strike plaintiff’s supplemental BOP. The First Department unanimously reversed that portion of the trial court’s order insofar as striking the new theories of liability that defendants negligently awarded the contracts to unqualified vendors and entered into a conspiracy to prevent qualified vendors from performing the work. However, the Court affirmed that portion of the trial court’s decision denying the motion seeking to strike plaintiffs’ reference to specific statutes, codes, and regulations.

 
04/23/2025            Armor v 501 EMR, LLC
Appellate Division, Second Department 
The trial court properly denied defendants’ motion to compel plaintiff to submit to a physical examination and provide authorizations to obtain certain records relating to a prior MVA.

Plaintiff was injured when he fell on a sidewalk defect abutting defendant’s property. Six months after the note of issue was filed, defendants moved to compel plaintiff to submit to a physical examination and provide authorizations to obtain certain records, but did not move to vacate the note of issue. The trial court denied defendants’ motion to compel. The Second Department affirmed the trial court’s decision, finding that defendants waived their right to conduct a physical examination of plaintiff by failing to arrange such examination within the time set forth in prior orders, and by failing to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness. The Court noted that although further discovery after the note of issue is filed will be permitted if a defendant can demonstrate that “unusual or unanticipated circumstances” developed after the filing of the note of issue which required additional discovery to prevent substantial prejudice.” Here, the court found that defendants submitted no evidence of unusual or unanticipated circumstances.

 
 05/6/2025        Greene v City of New York
Appellate Division, First Department 
Plaintiff not entitled to striking of defendant’s answer.

The trial court denied plaintiff’s motion to strike NYCHA’s answer and thereafter denied plaintiff’s motion for leave to reargue. The First Department unanimously affirmed the trial court’s decision because plaintiff failed to demonstrate that NYCHA willfully or contumaciously refused to comply with discovery demands, or the court’s schedule orders. The Court held that NYCHA sufficiently demonstrated its efforts in response to plaintiff’s discovery requests by providing logbook pages of the supervisor of caretakers, daily checklists, and multiple witnesses’ affidavits and testimony. NYCHA’s affidavits showed that it identified and searched both physical and digital locations where the logbook page for the date of the accident was likely to be kept, the name of the employee who worked at the scene on the day of the accident, and an affidavit of an inspector certifying that his search did not locate the relevant logbook pages.

 
06/11/2025            Naftaliyev v GGP Staten Is. Mall, LLC
Appellate Division, Second Department
Plaintiff not entitled to serve supplemental/amended bill of particulars after the filing of the note of issue as no discovery dispute was pending, and plaintiff failed to show special and extraordinary circumstances in seeking leave to serve an amended bill of particulars.

Plaintiff allegedly injured when she tripped and fell in a parking lot. Plaintiffs’ BOP and supplemental BOP alleged injuries to plaintiff’s right elbow, right wrist, right knee and back. After filing the note of issue, plaintiff served another purported “supplemental BOP” adding injuries to her lower extremity, left ankle, and left foot. At her deposition, plaintiff testified that six months after the accident, she injured her left ankle in a second accident, when she attempted to stop her fall with her right and, but that hand was weak and unable to break her fall. The trial court denied defendants’ motion and sua sponte directed plaintiff to move for leave to amend her BOP.

The Second Department reversed the trial court’s decision as there was no evidence of any legitimate and pending pretrial discovery at the time of the order and the certificate of readiness did not contain “a material fact” that was incorrect. Additionally, the court held that plaintiff failed to show special and extraordinary circumstances in seeking leave to serve an amended BOP alleging new injuries and failed to even proffer a reasonable excuse for the delay in moving for leave to serve an amended BOP.

 
Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]

Hi Readers,

As quickly as I was wishing everyone a happy Spring, it is summer, which has been all but kind to us lately. I hope everyone is staying cool and has a happy and safe summer, and 4^th of July.

This month’s decision is from NYC Supreme Court, issued by Honorable Richard Tsai highlighting an important distinction between calcium and sodium chloride when used in snow removal efforts.

6/18/2025       Morel v NYC Tr. Auth.
Supreme Court, New York County 
While the Appellate Courts have held that calcium chloride is not inherently dangerous, there are no Appellate cases holding that sodium chloride (i.e. rock salt), when used as part of snow removal efforts, is not inherently dangerous.
 
This case deals with a few different issues. However, this summary focuses on the Court’s distinction between calcium chloride and sodium chloride (i.e. rock salt).
 
On February 19, 2016, at approximately 9:30 AM, plaintiff slipped and fell while descending the staircase at the 155^th St. subway station. Plaintiff testified that he didn’t see any salt, snow melt, or other material on the ground at the top of the stairway before he began his descent.
 
Defendants filed summary judgment arguing, in part, that the rock salt used on the subject staircase was open an obvious, did not create a dangerous condition, and was not inherently dangerous. Defendant relied heavily on a 1^st Department case that held that the presence of calcium chloride was open and obvious and not inherently dangerous.
 
Honorable Tsai held that the subject action was distinguishable from the 1^st Dept., case in light of Defendant’s use of rock salt (vs. calcium chloride), and he was unable to find an appellate case that holds rock salt, used as part of snow removal efforts, is not, as a matter of law, inherently dangerous.

Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
As temperatures soar across the region in the grip of a relentless heat wave, we hope you are finding ways to stay cool and safe! While the weather brings its own discomforts, the legal world has also been heating up with some noteworthy decisions. In this month’s article, we take a look at two (2) recent cases: one where the First Department reviews whether a jury's award for past and future pain and suffering was fair and reasonable, and another determining whether a defect was trivial.

6/05/2025        Barcia v. Costco Wholesale Corp.
Appellate Division, First Department 
A plaintiff's failure to object to the jury's award for past and future pain and suffering on the grounds of inconsistency before the court discharged the jury, did not preclude the court from reviewing whether the jury’s award was “contrary to a fair interpretation of the evidence and of what would be reasonable compensation.”
 
This action arises from a slip and fall at Costco. The plaintiff allegedly sustained permanent injuries to her right shoulder, lumbar spine, and cervical spine. She claimed that she underwent lumbar compression surgery and a subsequent cervical discectomy and fusion. Prior to trial, the plaintiff withdrew her lumbar spine claim as it was revealed during the duration of discovery that she had sustained two (2) prior back injuries, one of which she was receiving Workers’ Compensation benefits.
 
A jury found the defendants 87% at fault, awarding plaintiff damages, including $250,000 for past pain and suffering, $60,000 for future pain and suffering, and $1,201,996 for future medical expenses. The defendants filed a motion pursuant to CPLR §§ 4403, 4404, and 4405 to set aside the jury's award for future medical expenses. Plaintiff filed a motion to set aside and conditionally increase the jury's award for past and future pain and suffering.
 
The First Department held the court “should have set the verdict aside and granted a new trial on the issue of damages as the evidence was insufficient to support the jury's award.” The Court explained it was an error to allow plaintiff to reopen her case to admit additional medical bills after plaintiff rested. The Court determined it was significantly prejudicial to the defendants as they were not afforded an opportunity to review the bills and object as these bills included expenses for plaintiff’s withdrawn lumbar spine treatment. The jury did not deduct the unrelated expenses and awarded the plaintiff the full amount of the bills. The Second Department further explained that the plaintiff’s physiatrist confirmed that in creating the life care plan, which was presented to the jury, he “improperly conflated” the plaintiff's cervical spine injuries with her withdrawn lumbar spine injuries.

6/17/2025     Weatherspoon v. Mazal Ubracha 101 LLC
Appellate Division, First Department 
Summary judgment on the issue of trivial defect should not be granted in a case in which the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive.
 
The plaintiff commenced a personal injury action after she allegedly tripped and fell over a raised edge of a cellar door which was in a sidewalk. The defendant Mazal Ubracha owned the premises and the defendant Teng Dragon leased and operated the restaurant on the premises. The defendant Teng Dragon moved for summary judgment and in part argued that the raised edge of the cellar door was a trivial defect and non-actionable as a matter of law. In support of its motion defendant Teng Dragon relied on the party depositions and photographs of the sidewalk, cellar doors, and cellar door frames. The New York County Supreme Court granted the defendant Teng Dragon’s motion for summary judgment and dismissed the complaint.
 
On appeal, the First Department unanimously reversed and denied the defendant Teng Dragon’s motion. The Court explained that producing measurements of the defect together with evidence of the surrounding circumstances is required for a prima facie showing that the defect was trivial as a matter of law. The photographs produced by the plaintiff depicted what appeared to be a non-trivial defect in the raised cellar door. Further, the testimony of the defendant owner’s principal indicated that there was an approximately 1-inch surface differential between the cellar door and the sidewalk. The First Department determined that since the defendant Teng Dragon failed to provide actual measurements of the alleged defect, the defendant did not establish a prima facie case for summary judgment and thus, summary judgment should not have been granted.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Marc A. Schulz
[email protected]

Anastasia M. McCarthy
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Elizabeth K. Ognenovski
eko@hurwitzfine.com