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NOTE FROM THE EDITOR:
We are pleased to welcome two new attorneys to Hurwitz Fine in Rochester and Buffalo:
Richard N. Franco joins us as a Business & Commercial Litigation Partner in our Rochester office. He is an experienced litigator representing clients across a broad range of matters, including real property litigation, quiet title actions, business disputes, tax assessment challenges, breach of contract claims, municipal zoning issues, construction litigation, creditor’s rights, and appellate advocacy.
Jason A. Yots joins the firm as Economic Development Special Counsel, bringing nearly three decades of experience in community economic development and real estate law. In addition to his legal practice, he has been deeply involved in historic preservation and redevelopment efforts throughout Western New York.
Welcome, Rich and Jay!
Our Litigation Webinar Series continues on Tuesday, May 19th with “Strategies for Responding to Evolving Jury Economics, Counter-Anchoring, and Life Care Plans.”
Join Hurwitz Fine Attorneys V. Christopher Potenza, Elizabeth Midgley, and Stephen Sorrels for an in-depth discussion on the psychological and societal forces shaping today’s jury dynamics and driving nuclear verdicts.
This webinar will examine the evolving concept of “jury economics,” including the factors influencing juror decision-making and award valuations. The panel will also explore the science behind counter-anchoring, along with practical strategies for challenging inflated damages models and life care plans in high-exposure and catastrophic injury cases.
Attendees will gain actionable insights to better assess risk, develop effective defense strategies, and navigate the complexities of modern litigation.
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]
For those who attended our webinar on removal recently, below is a case that illustrates some of the issues we discussed regarding diversity of citizenship, proving citizenship of an LLC and timeliness of the removal.
4/13/2026 Preci v. Jovanii H Transp. LLC
United States District Court, Eastern District of New York
Case was remanded to state court based on defect in removal namely failing to identify citizenship of members of the LLC defendant.
Plaintiff Eva Preci, a resident of Queens County, New York, was involved in a motor vehicle accident on February 28, 2024 in Brooklyn, New York. The accident involved a truck owned by Jovanii H Transport LLC and operated by Juan V. Rivera, a resident of Volusia County, Florida. The action was commenced by plaintiff on June 14, 2025, in the Supreme Court of the State of New York, Queens County. Plaintiff attempted to serve Jovanii Transport at its Florida business address, but initial attempts were unsuccessful. Substitute service was effected on the Florida Secretary of State on September 4, 2025. Jovanii Transport appeared in state court and stipulated to extend its time to answer. Plaintiff attempted to serve Rivera but was unsuccessful and ultimately elected not to proceed against him, admitting Rivera was not a party to the action due to lack of service.
On November 17, 2025, defendants removed the action to the United States District Court for the Eastern District of New York, asserting diversity jurisdiction under 28 USCS § 1332. Plaintiff moved to remand the case to state court, arguing that removal was untimely and that Jovanii Transport had waived objections to service and jurisdiction. Plaintiff also sought attorneys' fees and costs. Defendants opposed the motion, arguing that diversity jurisdiction existed and that removal was proper.
The District Court granted plaintiff's motion to remand the case to Queens County State Court. The Court found that Defendants failed to establish complete diversity of citizenship because Jovanii Transport, as an LLC, did not plead the citizenship of its members, as required for diversity jurisdiction. The Notice of Removal only stated the state of incorporation and principal place of business, which is insufficient for an LLC.
Plaintiff's request for attorneys' fees and costs was denied. The Court found that although Defendants' removal was ultimately unsuccessful, it was not objectively unreasonable or frivolous, and there was no evidence of improper motive.
3/31/2026 Brooks v. Avis Budget Grp. Inc.
United States District Court, Southern District of New York
Spoliation motion granted against defendant for failing to preserve vehicle at issue in lawsuit.
Plaintiffs rented a car from defendant, Avis Budget Group, Inc. ("Avis"), with the vehicle owned by defendant, PV Holding Corp. On May 22, 2022, while plaintiff was driving, the left rear tire of the rental car allegedly blew out, causing the vehicle to crash into a concrete barrier. Plaintiffs notified defendants on June 12, 2022, that they were represented by counsel regarding potential claims from the accident. Plaintiffs requested that the vehicle be preserved for inspection and submitted a Mechanical Malfunction Information Form on August 30, 2022. Plaintiffs made repeated efforts to coordinate an inspection of the vehicle but were never able to inspect it. The rental car was disposed of on January 13, 2023, without plaintiffs receiving notice of its impending disposal. Plaintiffs moved for sanctions against defendants for spoliation of evidence, seeking either to strike defendants' answer or, alternatively, an adverse inference instruction. The Court found that defendants' duty to preserve the rental car attached, at the latest, on August 30, 2022, when plaintiffs formalized their intent to pursue a claim and requested preservation for inspection. The obligation to preserve extended to the entire vehicle, not just the allegedly defective tire. Defendants were found to have willfully destroyed the vehicle by disposing of it before plaintiffs had an opportunity to inspect it and without providing notice. The Court determined that plaintiffs met their burden to show spoliation: defendants had an obligation to preserve, acted with a culpable state of mind, and the evidence was relevant. Prejudice to plaintiffs was presumed due to the willful destruction of evidence. Plaintiffs' request to strike defendants' answer (effectively a default judgment) was denied, as the Court found no evidence of malice. Plaintiffs' alternative request for an adverse inference instruction was granted as an appropriate sanction for the willful spoliation. The precise language of the adverse inference instruction was reserved for the court at trial.
3/31/2026 Sikorski v. Wal-Mart Real Est. Bus. Tr.
United States District Court, District of Connecticut
Wal-Mart’s motion for summary judgment was denied because the surveillance evidence did not in the court’s view establish that plaintiff’s own negligence caused her accident.
Plaintiff sued Wal-Mart after tripping and falling on April 1, 2021. At the time of the incident, the plaintiff was wearing a cloth facemask due to the coronavirus pandemic. The plaintiff alleged that the fall was caused by a "raised portion of concrete colored similarly to the normal walking surface" around the base of a structural pillar near the store's entrance. It was further alleged that Wal-Mart exacerbated the tripping hazard by creating a temporary walking lane using blue tape and makeshift bollards, which guided customers toward the pillar, and by providing inadequate lighting, making the height difference difficult to observe. Wal-Mart denied these allegations, contending that the plaintiff's fall was due to her own negligence, specifically that she was not paying attention while adjusting her mask.
Wal-Mart filed a Motion for Summary Judgment, arguing that plaintiff's own negligence caused the fall. Wal-Mart relied on an incident report, deposition testimony, and surveillance video to support its motion. The plaintiff opposed the motion, arguing that material factual disputes existed, particularly regarding what the surveillance video showed. The court found that the surveillance video did not clearly show the plaintiff adjusting her mask or not paying attention at the time of the fall, as the view was obstructed. The court also found that the plaintiff had produced sufficient evidence regarding the alleged defect (the pillar base, blue tape, bollards, and lighting conditions) for a reasonable jury to find in her favor.
3/31/2026 Zoltowski v. Home Depot U.S.A. Inc.
United States District Court, Eastern District of New York
Home Depot’s motion for summary judgment granted even though Home Depot lacked a formal inspection policy.
Plaintiff, while walking in the back area of the store, slipped on a plastic strap on the floor, resulting in a fractured radius and a fracture of the radial head. Plaintiff and her family did not observe any dangerous conditions prior to the fall, and their view of the floor was unobstructed. They were in the aisle for no more than a minute before the incident and did not see the strap on the ground or see it fall from anywhere. While Home Depot did not have a formal inspection policy for the area where the fall occurred, employees were expected to look out for hazards and clean up as needed.
The court granted summary judgment in favor of Home Depot. It was held that, under New York law, to establish constructive notice, the hazardous condition must have been visible and apparent and must have existed for a sufficient period of time prior to the accident to allow the defendant an opportunity to discover and remedy it. The court found no evidence indicating how long the strap had been on the floor before the fall; the plaintiffs were in the area for less than a minute and did not see the strap beforehand. The court determined that the lack of an inspection policy alone was insufficient to establish constructive notice without evidence of the duration of the hazard’s presence.
3/30/2026 Grossman v. Lowe’s Store No. 1597
United States District Court, Eastern District of New York
Home Depot’s motion for summary judgment was granted in part because Court applied federal summary judgment standard over New York's heightened premises liability burden.
Plaintiff was injured when a fencing display fell and injured her foot. After visually inspecting the display for several minutes and not noticing any instability, Grossman touched the display to determine the material, causing it to collapse and strike her feet. The display had been assembled by Lowe's Merchandising Service Team (MST) one to two months prior to the incident. There were no prior complaints or incidents involving the display had been reported. Store managers conducted daily safety inspections, including on the day of the accident, and found no issues with the display. An incident report was filed, and assistance was provided to Grossman at the scene.
The court found that Lowe's owed plaintiff a duty of care as a customer. However, plaintiff failed to provide evidence of a dangerous or defective condition, or that Lowe's created, had actual notice of, or had constructive notice of such a condition. The court rejected the application of the doctrine of res ipsa loquitur, finding that the display was not in Lowe's exclusive control and that Grossman's own actions (touching the display) contributed to the accident. Summary judgment was granted in favor of Lowe's, dismissing Grossman's negligence claim.
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
This month we are looking at an unusual case out of the second department – when/if a prior homeowner can be responsible for plaintiff’s accident.
Hope you have time to read this edition of Premises Pointers outside in the sunshine and warm weather! Happy spring!
4/15/2026 Potanovic v Nikolarkis
Appellate Division, Second Department
The Appellate Division, Second Department, upheld the Trial Court’s decision granting SDF’s motion for summary judgment.
Plaintiff allegedly slipped and fell on ice located on a sidewalk adjacent to property owned by defendants Nikolarkis; Plaintiff also sued SDF Capital Limited Liability Company, who sold the subject premises to the Nikolarkises approximately eight months prior to the accident. Plaintiff alleges that the ice formed due to an improperly installed roof leader that directed water flow onto the sidewalk.
SDF (prior owner) moved for summary judgment, which was granted by the Trial Court; plaintiff appealed, which was denied.
Generally, liability for dangerous conditions on land does not extend to a prior owner of said premises. However if the dangerous condition existed at the time of the conveyance and the new owner did not have a reasonable time to discover and remedy the condition, liability may be imposed on the prior owner. The prior owner may also be liable if it affirmatively created the alleged dangerous condition.
The Appellate Division found that SDF established, prima facie, that it did not own the property at the time of the accident, did not create or conceal the allegedly dangerous condition, and the current homeowners (Nikolarkises) had a reasonable amount of time to discover and remedy the condition. The Appellate Division further held that plaintiff’s expert’s affidavit was insufficient to defeat summary judgment.
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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,
As the days grow longer and temperatures begin to rise, more time is spent outdoors and public spaces become busier which inevitably causes an uptick in premises liability claims. This month, I have analyzed two First Department decisions involving a plaintiff falling, one allegedly due to overcrowding and the other from an unidentified slippery condition.
4/14/2026 Kaufman v. Starbucks Corp.
Appellate Division, First Department
"Where a plaintiff alleges negligence stemming from 'overcrowding,' he/she must show that her freedom of movement was unduly restricted or that she was unable to find a place of safety due to the alleged crowd."
The plaintiff commenced an action against the defendant Starbucks after she sustained injuries when she allegedly “collided” with “one or more persons” and fell due to “overcrowding” in the store. The defendant moved for summary judgment and argued there was no evidence that “the plaintiff’s freedom of movement was unduly restricted or that the other patrons at the store were unruly.” The New York County Supreme Court denied the defendant’s motion.
On appeal, the First Department unanimously affirmed. The Court explained that the defendant’s only evidence of the condition of the store was testimony from a barista who was not working at the time of the plaintiff’s incident. The Court held this barista thus was unable to establish what the conditions of the store were like at the time of the plaintiff’s accident. The First Department determined the defendant “failed to carry its burden as the movant to present evidence establishing its prima facie entitlement to judgment as a matter of law.”
4/23/2026 Johnson v. AMF Bowling Ctrs., Inc., et al.
Appellate Division, First Department
“The fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence.”
The plaintiff commenced a personal injury action against the defendants following a slip and fall at the defendants’ bowling alley. The defendants moved for summary judgment to dismiss the complaint and argued that: (1) the plaintiff’s alleged fall and injuries were not proximately caused by any breach of duty owed to plaintiff, as plaintiff was unable to identify the cause of her alleged fall without engaging in speculation; (2) the defendants did not create, or have actual or constructive notice of, an allegedly dangerous condition on the premises; and (3) that the defendants AMF, Bowlero and Bowlmor Lanes did not owe a duty to plaintiff as they did not own, occupy, control, or make special use of the premises. The New York County Supreme Court granted the defendants’ motion.
On appeal, the First Department unanimously affirmed. The Court explained that the plaintiff’s testimony regarding whether she knew where in the bowling lane she slipped was inconsistent. If it is assumed that the plaintiff “slipped in the approach to the bowling lane (as opposed to in the lane itself), she did not identify any condition in that area that caused her fall, beyond mere slipperiness.” Despite alleging in her complaint and verified bill of particulars that she fell due to the defendants’ creation of a dangerous condition by its “excessive oiling, waxing, or conditioning of the floor,” the plaintiff offered no evidence to substantiate the claim. The Second Department held that it was “‘just as likely that’ [the plaintiff’s] accident was ‘caused by some other factor, such as a misstep or loss of balance,’ rather than defendants' negligence in cleaning and maintaining the bowling alley.” Thus, the Court determined that “any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.” In opposition, 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,
Buffalo has officially traded snow and cold weather for warmer weather and sunshine—hooray! With that said, the courts have not issued many discovery decisions this past month. However, while the volume may be light, the takeaway is important, particularly for those navigating discovery related motion practice under the CPLR.
Happy spring!
4/14/2026 Vera v. Xolle Demo LLC
Appellate Division, First Department
Striking Defendant’s Answer Deemed Too Drastic Where Record Failed to Establish Willful Noncompliance or Prejudice
Plaintiff commenced this personal injury action and served discovery demands upon defendant, including a notice for discovery and inspection, requests for insurance coverage information, expert testimony, accident reports, and a bill of particulars. Defendant failed to timely respond, prompting motion practice and multiple court orders directing compliance. Although defendant violated three separate discovery orders over the course of approximately eighteen months, it ultimately provided partial responses, including insurance information and certain discovery materials.
The Supreme Court granted plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126. On appeal, however, the First Department reversed, emphasizing that striking a pleading is a “drastic remedy” reserved for instances of willful and contumacious noncompliance. The court held that while defendant’s conduct lacked diligence, the record did not sufficiently establish that the noncompliance was willful. Critically, the court noted that defendant did provide partial discovery responses and that the plaintiff failed to identify with specificity what discovery remained outstanding or demonstrate any prejudice resulting from the delay. Accordingly, the court reinstated defendant’s answer and remanded the matter for consideration of a lesser sanction.
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Labor and Employment Law Desk: Issues for Schools, Retailers and Employers
By: Maxwell C. Radley [email protected]
3/31/2026 Ashmeade v. Amazon.com et al, No.
United States District Court, Southern District of New York
An older employee received more work, more pressure to perform at the employer’s peril.
Plaintiff, a 50-year-old African American male, was assigned a workload five times heavier than his Caucasian colleagues and failed to meet expectations, resulting in placement on a performance improvement plan (PIP). Ultimately, he filed an internal discrimination complaint and was terminated two months later. Plaintiff file suit bringing claims under Title VII, the ADEA, and the NYSHRL, alleging excessive workload, repeated derogatory remarks (including being called “the worst manager in the building” and references to needing “fresh energy”), and placement on a PIP with unrealistic expectations. He also alleged that PIPs disproportionately affected African American employees, citing a 70% termination or demotion rate compared to 30% for white employees. On defendant’s motion to dismiss, the court held that plaintiff plausibly alleged disparate impact based on statistical disparities, retaliation based on temporal proximity and ongoing harassment, and a hostile work environment based on workload and treatment. The motion was therefore granted in part and denied in part with plaintiff’s disparate impact, retaliation, and hostile work environment claims surviving.
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Chalkboards and Claims: Liability Issues Facing School Districts
By: Jody E. Briandi [email protected]
4/8/2026 J.A. v. City of New York
New York State Supreme Court, Second Department
The continuing wrong doctrine applied to a Notice of Claim filed more than 90 days after some of the incidents of the alleged harassment had occurred.
Plaintiff J.A., a middle school student with an individualized education plan (IEP). J.A. was allegedly subjected to continuous verbal and physical harassment and assaults by a group of classmates from October 2017 through May 2018. School officials had actual notice of all incidents through the school's incident reporting system and repeated parental complaints. A Notice of Claim was filed in May 2018, encompassing all incidents. Plaintiffs alleged that school administrators responded with indifference, failed to develop a safety plan, and minimized the incidents as typical middle school behavior.
Timeline of Events:
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October 6, 2017
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J.A. punched in the head and face by classmate N. during recess.
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October 2017–May 2018
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Repeated verbal and physical harassment and assaults by classmates (N., R., O., A., T.).
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February 7, 2018
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R. called J.A. a racial slur, kicked him, and threatened further harm.
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March 6, 2018
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J.A. pushed to the ground by A. at a store off school grounds.
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April 13, 2018
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O. threw a crate of books at J.A.'s head and punched him.
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May 21, 2018
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J.A. physically assaulted in a classroom, injuring his left eye.
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May 25, 2018
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Notice of claim filed by J.A.'s mother, covering all incidents.
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January 3, 2019
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Action commenced against the City, DOE, and school for negligent supervision.
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August 1, 2023
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Supreme Court granted summary judgment dismissing claims against DOE and school for incidents prior to February 24, 2018, as time-barred.
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Regarding the timeliness of the Notice of Claim, the court held that the continuing wrong doctrine applied because J.A. faced a hostile educational environment through repeated harassment by the same group of students, with school officials having continuous notice. This doctrine tolled the limitations period, making the notice of claim timely for all incidents. The court found triable issues of fact regarding whether the school provided adequate supervision, given the school's actual notice of ongoing harassment and its indifferent response. Schools are obligated to provide adequate supervision and can be held liable for foreseeable injuries related to inadequate supervision if they had sufficiently specific knowledge or notice of dangerous conduct. Regarding incidents that occurred off school grounds, the court held that the defendants were not liable for those incidents as J.A. was not in their custody or control at those times.
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