NOTE FROM THE EDITOR:
Last week, I attended the 2026 DRI Advanced Litigation and Trial Strategies in Retail & Hospitality with my colleague and Premises Pointers contributor Elizabeth Ognenovski in Nashville. It was a great event. The programming focused on a mock trial with live jury deliberations along with an AI jury. It is always super interesting to find out what a juror focuses on because often it’s not a fact or piece of evidence you as the trial attorney thought was important or legally impactful. Mock trials can be invaluable for the right case as they allow you to test theories and defenses, liability assessments, and damages. The case at DRI in Nashville centered around multiple incidents that happened in one night on Broadway at the plaintiff’s bachelorette party involving an accident on a mechanical bull, dram shop liability and a car accident. Ultimately, the defense prevailed according to our live jury and AI jury.
On the heels of that conference, we are excited to present our next premises and retail focused webinar, “Litigation Strategies: Removing Cases to Federal Court” on Thursday, April 16th.
Our webinar will focus on navigating the removal of civil actions from state court to federal court, and the legal bases for removal, key procedural requirements and timing considerations, and the strategic advantages federal court can offer. Attendees will gain practical insight into how removal can serve as more than a procedural step—it can be a meaningful litigation advantage.
For more information and to register, click here.
The week after, Insurance Coverage attorneys Victoria S. Heist and Lexi R. Horton will explore the evolving scope of attorney-client privilege across the United States and what it means in practice. Join them for a clear, practical discussion of how the privilege applies in real-world scenarios, including dual-purpose communications, interactions with in-house counsel and insurers, bad-faith litigation, and the discoverability of claims files. Attendees will gain actionable insight into protecting privileged communications while navigating complex coverage and claims environments.
For more information and to register, click here.
-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.
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Retail, Restaurant and Hospitality Happenings in the 2nd Circuit and Beyond
By: Jody E. Briandi [email protected]
As discussed below, in this slip and fall case, Walmart’s motion for summary judgment was first granted by the district court because the plaintiff was unable to prove what caused the spill or how long it was on the ground. The decision however was later reversed by the Second Circuit Court of Appeals who determined that the reasonableness of Walmart’s safety protocols was for the jury given the surveillance video demonstrating the lack of an inspect of the aera by Walmart during the 60 minutes prior to the incident.
03/17/2026 Marquez v. Wal-Mart Stores East, Inc.
United States Court of Appeals for the Second Circuit
Summary judgment was intially granted to retail defendant at the district court level - an appeal was taken and the decision was reversed
Plaintiff Aracelis Marquez sued Wal-Mart after sustaining injuries from a slip-and-fall incident in the milk aisle of a Walmart store. She appealed to the Second Circuit when her case was dismissed by the lower court. The Second Circuit reinstated the case and focused on the following facts. Video evidence showed multiple shoppers noticing or reacting to something on the floor in the hour preceding the accident. One customer appeared to gesture to others to avoid the area, and a young girl was seen sliding near the liquid. For over 60 minutes before the accident, no Walmart employee was observed inspecting the relevant aisle. Employees who appeared in the footage walked past the milk cooler on the opposite side and did not inspect the aisle where the incident occurred. The assistant manager testified to a lack of awareness of any regular inspections at the store.
Walmart argued that the liquid on the floor did not exist for a sufficient length of time prior to the accident to permit Walmart to discover and remedy it. Walmart’s second argument was that plaintiff failed to provide evidence regarding the reasonableness of its inspections.
The Second Circuit was unpersuaded. The Second Circuit found the district court erred by resolving factual disputes that should go to a jury. The video evidence could support a jury finding that the liquid existed long enough for constructive notice, especially given customer awareness and New York precedent finding as little as five minutes sufficient in some circumstances. The court also found the 60+ minute inspection gap, combined with testimony about lack of regular inspection procedures, raised jury questions about the reasonableness of Walmart's safety protocols rather than warranting summary judgment.
04/18/2025 Marquez v. Wal-Mart Stores East, Inc.
United States District Court for the Eastern District of New York
Walmart’s motion was granted by the district court but ultimately reversed as noted above.
In its motion Walmart pointed to plaintiff’s testimony that after taking a gallon of milk from the refrigerator, she slipped on a clear liquid she noticed only after falling. She speculated the liquid might have come from a nearby cooler, stating "something was leaking or broken, or I don't know." The assistant manager testified that maintenance issues with coolers would generate a work order, but there was no record of repairs to the cooler before or after the incident. According to the decision, video footage showed multiple people, including Walmart associates, passing through the area in the hour before the fall. One individual appeared to notice something on the floor about six minutes before the accident and warned another customer. It was noted that there was no direct evidence was provided regarding how the liquid came to be on the floor, how long it had been there, or that Walmart employees were aware of it. The court found no evidence that Wal-Mart created the dangerous condition, as plaintiff’s attribution of the liquid to the cooler was speculative and unsupported by maintenance records or other evidence. The court found no evidence that Wal-Mart had actual notice of the liquid. The court noted that the only evidence regarding duration was that the liquid may have been present for at most six minutes before the fall, which was deemed insufficient under New York law. Finally, the court rejected plaintiff’s argument that a lack of inspection policy or failure to conduct reasonable inspections could impute notice, as there was no evidence the condition existed long enough to be discovered by a reasonable inspection.
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Patrice C.S. Melville [email protected]
Hi Readers,
This month’s offering is a reminder that property owners—particularly institutional defendants like the State—cannot rely on incomplete snow and ice removal efforts or loosely invoke the “storm in progress” doctrine to avoid liability. Even minor or intermittent weather events can create actionable hazards when conditions are known and left unaddressed. As we trade icy mornings for springtime sunshine (and maybe a few Easter egg hunts), this case underscores the importance of thorough and consistent maintenance practices, as well as the limits of common defenses where the evidence shows that a dangerous condition was both foreseeable and easily correctable.
03/26/2026 Powers v State of New York
Appellate Division, Third Department
When “Storm in Progress” Falls Flat: Liability for Untreated Ice After the Weather Clears.
The claimant, a contractor, slipped on untreated ice in a parking lot at Woodbourne Correctional Facility in the early morning hours. Although the State dispatched an employee to sand and salt the premises between midnight and 2:00 a.m., that employee failed to treat the specific paved area where the fall occurred—despite it being accessible and designated for such maintenance. Trial evidence showed that freezing rain overnight left a thin glaze of ice, and a facility superintendent confirmed both that all paved areas should have been treated and that conditions that morning were “very slippery.” Following a bifurcated trial on liability, the State moved to dismiss under the storm in progress doctrine at the close of claimant’s proof, without presenting any evidence. The Court of Claims reserved decision and ultimately dismissed the claim. The claimant appealed.
On appeal, the Appellate Division, Third Department, reversed, holding that the State had notice of the hazardous condition and that the storm in progress doctrine did not apply. The court found actual notice based on the employee’s overnight call-in to address road conditions, and constructive notice in the five-to-seven-hour window between ice formation and the accident. It further held that the State’s failure to treat the designated parking area, contrary to its own maintenance protocols, constituted a breach of its duty to maintain the property in a reasonably safe condition.
Critically, the court rejected the State’s reliance on the storm in progress doctrine, emphasizing that it applies only where an ongoing storm is producing appreciable accumulation. The intermittent “pockets” of freezing rain that ended hours earlier did not meet that threshold. The court cautioned against extending the doctrine to minor or concluded weather events, where its underlying rationale—avoiding futile cleanup efforts during active precipitation—is not implicated.
Finding no evidence of comparative fault, the court reversed the dismissal and remitted the matter for a trial on damages only. The decision highlights that partial or inconsistent snow and ice remediation efforts may expose landowners to liability, particularly where hazardous conditions are known and readily correctable.
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Slips, Trips, and Legal Shifts: The Latest Retail, Restaurant and Hospitality Updates in New York State
By: Elizabeth K. Ognenovski [email protected]
Hello Readers,
Happy Spring! After months of frigid temperatures and snow I am certainly excited for more sunshine and warm weather. This month, I have two (2) new cases, one of which analyzes the important topic of spoliation. The other case discusses a property owner’s duty under Administrative Code of the City of New York § 7-210.
03/25/2026 Atsaves v. El Caribe Caterers, LLC
Appellate Division, Second Department
“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned. A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.”
The plaintiff allegedly sustained injuries at her wedding while using a CO2 smoke gun. She commenced an action against defendants Victory Entertainment and El Caribe Caterers, LLC. The defendant Victory filed a motion to strike El Caribe’s answer under CPLR 3126 for spoliation of video surveillance which captured the incident or alternatively, to preclude El Caribe from offering evidence about the surveillance footage’s contents. The plaintiff and El Caribe both opposed the motion. The lower court denied the portion of Victory's motion to strike El Caribe's answer. The court granted the section of the motion to preclude El Caribe from offering any evidence regarding the contents of the video surveillance footage, “only to the extent of precluding the parties from offering any testimony regarding the contents of the video surveillance footage to the extent that such testimony contradicted the plaintiff's testimony.”
On appeal, the Second Department agreed with the lower court’s holding to deny the section of Victory’s motion to strike El Caribe’s answer for spoliation of evidence. The Court explained that Victory failed to prove that El Caribe “intentionally or negligently failed to preserve the video surveillance footage or that El Caribe was placed on notice that the video surveillance footage might be needed for future litigation before it was automatically deleted. Further, Victory did not demonstrate that the lack of surveillance footage prevented it from establishing its defense. With regard to the branch of the motion to preclude evidence regarding the surveillance footage, “only to the extent of precluding the parties from offering any testimony regarding the contents of the video surveillance footage to the extent that such testimony contradicted the plaintiff's testimony must be dismissed. The Second Department held the subject ruling was an evidentiary ruling, “which, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission.”
03/25/2026 Sukhachova v. King’s Gourmet Food Corp., et al.
Appellate Division, Second Department
“Administrative Code of the City of New York § 7-210 imposes a duty upon 'the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition. A tenant of property abutting a public sidewalk 'owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty.'”
The plaintiff commenced an action against the defendant after she fell on an allegedly uneven sidewalk and sustained injuries. The sidewalk condition was located in front of the premises leased and occupied by the defendant King’s Gourmet Food Corp. The defendant King’s moved for summary judgment to dismiss the complaint. The Kings County Supreme Court denied the defendant’s motion.
On appeal, the Second Department reversed. The Court held the defendant King’s met its initial burden by establishing that it did not owe a duty of care to the plaintiff as King’s was not the owner of the property abutting the sidewalk. Further, King’s established it did not create the alleged dangerous condition and “did not make special use of the sidewalk.” The plaintiff failed to raise an issue of fact.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hello readers,
As April rolls in and we start (hopefully) to see the first signs of spring after a long winter, this month’s section takes a look at a recent appellate decision addressing common discovery disputes that arise in premises liability matters.
03/26/2026 Robinson v. Redleaf Cap. LLC
Appellate Division, First Department
A motion to compel a further deposition was properly denied where the movant failed to make a good-faith effort to resolve the dispute prior to motion practice and failed to establish that the requested discovery was material and necessary.
The plaintiff commenced this action seeking damages for injuries allegedly sustained in a trip and fall over a raised sidewalk flag in front of 46 and 48 West 21st Street in Manhattan. Redleaf Capital LLC, the owner of the property abutting the sidewalk 46 West 21st Street, and Superior Management Incorporated, its property manager, produced a witness for a deposition conducted by co-defendant Dezer Properties 48 LLC, the owner of 48 West 21st Street. During the deposition, counsel for Redleaf and Superior directed the witness not to answer questions concerning subsequent remedial measures taken to repair the sidewalk.
Dezer moved pursuant to CPLR 3124 to compel Redleaf and Superior to produce the witness for a further deposition to respond to those questions. The Supreme Court denied the motion, and the First Department affirmed. The Court found that the motion was procedurally deficient, as Dezer failed to make any good-faith effort to resolve the dispute during the 45 days between the deposition and the filing of the motion, as required by 22 NYCRR 202.7(c).
The Court further held that, on the merits, the trial court properly exercised its discretion in denying the request for a further deposition, as Dezer failed to demonstrate that the requested discovery regarding post-accident remedial measures was material and necessary to its defense, particularly where ownership of the abutting properties was undisputed.
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Labor and Employment Law Desk: Issues for Schools, Retailers and Employers
By: Maxwell C. Radley [email protected]
03/24/2026 Smith v. Dolgen N.Y., LLC
United States District Court Northern District of New York
The Northern District of New York confirmed that sometimes, when you’re fired, what you think matters
Recently, the Northern District of New York granted summary judgment against a former employee-plaintiff's Section 1981 and NYS Human Rights Law disparate treatment and retaliation claims. The Court found that based on the record, plaintiff voluntarily left her employer. She did not receive any negative, disparate, or retaliatory treatment from the employer. Plaintiff never alleged that she believed she was terminated, rather she voluntarily left her position for another job. In opposition to summary judgment, plaintiff tried to create a disputed material fact based solely on discovery from the employer's internal records. The court held, however, that her federal and NYS HRL claims could not be sustained solely from discovery obtained through the company's internal record keeping system. These records show plaintiff was terminated for allegedly taking another job. Plaintiff argued that this was an impermissible pretense and was actionable under the law. The court highlighted that the plaintiff's reliance on internal documentation only is fatal to the employee's claims because the plaintiff's alleged adverse employment effects must focus on the reasonable perceptions of the employee. Not whether formal words of firing were spoken. The court continued that plaintiff could not establish what contemporaneous knowledge she had leading to her "involuntary" termination. Therefore, her conclusory statement that she was terminated is not enough to defeat summary judgment. Some state law claims survived, but the court declined to extend jurisdiction.
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The Municipal Defense Docket: Immunity, Indemnity & Municipalities
By: Jeremiah E. Lenihan [email protected]
03/23/2026 Zorn v. Linton
United States Court of Appeals for the Second Circuit
The Supreme Court reaffirmed that government officials enjoy qualified immunity from suit under § 1983 unless their conduct violates “clearly established” law, and in doing so, courts generally “need to identify a case where an officer acting under similar circumstances … was held to have violated” the Constitution.
Last week, the Supreme Court issued an important decision in the context of qualified immunity. In Zorn v. Linton, the Supreme Court reinforced a critical limitation on constitutional claims: the right at issue must be clearly defined to a particularized set of facts. To avoid a qualified immunity defense, a plaintiff must show that the constitutional rights be “clearly established” requiring that “officers are on notice that their conduct is unlawful” before officers maybe held personally liable for their conduct.
In reversing the Second Circuit, the Court emphasized that it is not enough to rely on broad propositions such as the right to be free from excessive force or unlawful seizure. Instead, the inquiry must focus on whether existing precedent placed the specific conduct at issue “beyond debate” in a comparable factual context. The Second Circuit had allowed the excessive force claim of using a wristlock maneuver to proceed even though the violation of the constitutional right was framed in general terms. Notably, there had been no case identified by the Second Circuit where actions in “similar circumstances” violated the Constitution.
The Supreme Court rejected the Second Circuit’s generalized approach, reiterating that officials must be placed on notice of a particular, potential constitutional violation. The Court discussed concerns about how defining rights too broadly risks collapsing the qualified immunity analysis into a generalized reasonableness inquiry.
The divergence between the courts highlights a recurring issue in § 1983 litigation. Plaintiffs often rely on sweeping allegations of constitutional violations, while the Supreme Court continues to require a narrow, fact-driven analysis tied to existing case law. Without closely analogous precedent, even conduct that appears questionable will not overcome qualified immunity. This framework places a meaningful burden on plaintiffs to identify prior decisions addressing similar circumstances, rather than relying on abstract constitutional guarantees.
For municipal defendants, Zorn provides a strong tool for early motion practice. Where a complaint defines the alleged right in broad or conclusory terms, it is vulnerable to dismissal. Just as Monell requires more than boilerplate allegations of a “policy or custom,” the Supreme Court has made clear that constitutional claims themselves must be grounded in clearly established, fact-specific law.
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