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NOTE FROM THE EDITOR:
Hurwitz Fine’s Litigation Webinar Series continues in June with a special program that will be of interest to our Premises Pointers readers. Our Long Island Premises Liability attorneys Patrice Melville, Ashley Cuneo and Rachel Epstein will present “Too Slippery to Believe: Defending Fraudulent Slip/Trip and Fall Claims in New York,” which will focus on defending against questionable slip/trip and fall claims. Not every incident is what it appears to be, and defense counsel and claims professionals are increasingly challenged to distinguish legitimate claims from litigation-driven narratives.
This session will explore the key warning signs of potentially fraudulent claims, including unwitnessed accidents, inconsistent injury complaints, suspicious treatment patterns, and staged-event indicators. Attendees will gain practical strategies for investigating and litigating these cases, including leveraging discovery, surveillance, and medical and documentary inconsistencies to strengthen the defense. Learn how to identify red flags early and position cases for dismissal, favorable resolution, or trial success.
For more information and to register, click here.
If you missed last week’s “Strategies for Responding to Evolving Jury Economics, Counter-Anchoring, and Life Care Plans,” we have provided a Key Takeaways alert on what you need to know on the forces driving nuclear verdicts and practical strategies for defending high-exposure cases. If you are interested in learning more or setting up a presentation for your team, please reach out to Chris Potenza.
In July, our Retail & Hospitality Team will be back for another webinar on “Defending TBI Clams in New York.” Stay tuned!
Significant changes to New York’s motor vehicle liability laws just passed with week. Effective May 26, 2026, the state enacted sweeping changes to its motor vehicle liability statutes, including substantial revisions to serious injury thresholds, comparative negligence rules, and recoverable damages.
Read our latest legal alert for a closer look at what these changes could mean moving forward. We are also planning on hosting a future webinar on this topic.
-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]
These two recent Eastern District of New York decisions highlight how subtle factual distinctions can determine the outcome of slip-and-fall cases at the summary judgment stage. Both matters involved alleged transient hazardous conditions and claims of constructive notice, yet reached opposite results based on the quality of the evidence. Together, they underscore that duration, visibility, and proof of actual conditions, not speculation, remain critical in assessing liability.
5/22/2026 Sandy v. Target Corp.
United States District Court for the Eastern District of New York
Target’s motion for summary judgment was denied based on evidence the spill existed for 13 minutes before the fall.
Plaintiff brought a personal injury action against Target Corporation, alleging negligence after a slip and fall incident at a Target store in Brooklyn, New York. On June 27, 2021, at approximately 9:50 p.m., Sandy slipped and fell in the main aisle near guest services. The area was well lit, and Sandy did not see the substance before falling. The hazardous condition was a spill of baby food and broken glass, created when a customer dropped a glass jar of baby food about 13 minutes before Sandy’s fall. Sandy was unaware of any complaints made to Target employees about the spill before the accident. Target employees only became aware of the spill after the accident. Employees are trained to look for dangerous conditions and are required to guard, report, and clean up spills immediately upon observation. Video footage confirmed the spill existed for 13 minutes before the accident. During this time, several customers noticed and maneuvered around the spill, but there was no evidence that Target employees observed or responded to it. Security personnel and employees were stationed in areas near the spill, including the maternity section and a security podium approximately 100 feet away.
The court found no evidence that Target had actual notice of the spill. There were no complaints, warnings, or evidence that employees were aware of the spill before the accident. The key issue was whether 13 minutes was sufficient time for Target to have discovered and remedied the spill. The court determined that a reasonable juror could find that 13 minutes, combined with the spill’s location in a heavily trafficked area, the presence of employees nearby, and the fact that several customers noticed and avoided the spill, was sufficient to put Target on constructive notice. The court noted that New York case law is not uniform on the precise amount of time required for constructive notice, but cases have found periods as short as 5 to 20 minutes sufficient under certain circumstances. The court also considered Target’s duty to inspect and the lack of evidence of any inspection of the area during the 13 minutes the spill was present. The court ultimately denied Target’s motion for summary judgment.
5/13/2026 Climen v. Starbucks Corp.
United States District Court for the Eastern District of New York
Starbuck’s motion for summary judgment was granted in light of evidence
Plaintiff sued Starbucks Corporation following an incident that occurred in a small alcove area outside the restrooms. Plaintiff alleged she slipped on a "wet slippery substance," which she described as "almost oily," based solely on what she felt under her foot. she did not see any substance before or after the fall. Plaintiff had walked through the store without incident before entering the alcove. After attempting to open a locked restroom door, she turned and fell after taking two steps. Video footage captured the incident and the area for a substantial period before the fall. The footage showed multiple customers and employees traversing the area without incident in the hour prior to Plaintiff’s fall. No one was seen cleaning, inspecting, or spilling anything in the area before the incident. Starbucks employees testified that they did not observe any substance on the floor before or after the incident. No prior complaints or incidents regarding the floor in that area were reported. After the fall, a shift supervisor cleaned the area and placed a "Wet Floor" sign, but this occurred only post-incident. Plaintiff argued that Starbucks failed to adhere to its hourly cleaning policy and that the lack of inspection contributed to the presence of a dangerous condition.
The court found no evidence that Starbucks created the alleged dangerous condition. There was also no evidence of constructive notice, as the alleged condition was not "visible and apparent" nor shown to have existed for a sufficient length of time prior to the accident. The video evidence showed the area was traversed multiple times without incident, and no substance was visible. Further, failure to adhere to a cleaning policy, without evidence that a reasonable inspection would have revealed the condition, was insufficient to establish constructive notice. Post-incident cleaning and placement of a "Wet Floor" sign could not be used as evidence of a pre-existing dangerous condition. Summary judgment was granted for Starbucks.
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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]
As Memorial Day weekend fades into the rearview mirror and the days grow longer, warmer temperatures are finally settling in across New York. With snow boots traded for sandals and icy sidewalks replaced by summer outings, it is easy to believe slip-and-fall season is behind us. But as this month’s cases remind us, winter-weather liability has a way of lingering long after the snow melts. From constructive notice disputes to prior written notice defenses and questions of premises control, courts continue to sharpen the contours of liability in snow-and-ice litigation—offering important lessons for municipalities, property owners, insurers, and defense counsel alike as we head into a new season.
5/7/2026 Arruffat v. Town of Middletown
Appellate Division, Third Department
Prior Written Notice Prevails: Town Wins Icy Slip-and-Fall at Transfer Station
In a recent Third Department decision, the court affirmed summary judgment dismissing a slip-and-fall case against a town arising from an alleged icy condition at a municipal waste transfer station. The plaintiff claimed she slipped on ice while unloading garbage after parking her vehicle at the Town of Middletown (“the Town”) transfer station. She commenced suit alleging that the town negligently failed to maintain the premises.
The Town moved for summary judgment based on its local prior written notice law, arguing that it had never received written notice of the allegedly dangerous icy condition. In support, the Town submitted affidavits from the Town Clerk and Highway Superintendent confirming that no prior written complaints had been received. The plaintiff opposed, arguing that the area where she fell was not a “parking lot” subject to the prior written notice requirement because access to the transfer station was restricted and lacked formal parking spaces.
The Third Department rejected that argument and held that the area where plaintiff parked to unload garbage functioned as a municipal parking lot because it served as a place for members of the public to stop and access the facility. As such, the area qualified as a “highway” for purposes of the Town’s prior written notice law, triggering the notice requirement.
The Third Department further held that the Town established its prima facie entitlement to summary judgment by demonstrating the absence of prior written notice, shifting the burden to plaintiff to establish an applicable exception. Under New York law, only two narrow exceptions exist to prior written notice statutes: (1) where the municipality affirmatively created the dangerous condition through negligence, or (2) where a special use confers a special benefit upon the municipality unrelated to public use. The plaintiff’s allegations that negligent snow plowing or ice maintenance caused the condition were deemed speculative and unsupported by evidence that the Town’s conduct immediately created the icy hazard. Likewise, the special-use exception did not apply because the parking area served the public generally and plaintiff failed to establish any special municipal benefit unrelated to that public use.
For municipalities and the defense bar, the decision reinforces the strength of prior written notice defenses in snow-and-ice litigation and serves as a reminder that constructive notice arguments become irrelevant where a municipality demonstrates the absence of the statutorily required written notice and no recognized exception applies.
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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,
With Memorial Day behind us and June just around the corner, summer is finally starting to feel real here in western New York! This month, I am highlighting two (2) new decisions out of the Second Department. One tackles the ever important issue of the “trivial defect” defense, while the other addresses spoliation and the consequences that can follow when key evidence is no longer available.
5/6/2026 Rosario v. Wyckoff Supermarket Assoc., Inc.
Appellate Division, Second Department
“A defendant seeking dismissal of a complaint on the basis that [an] alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.”
The plaintiff tripped and fell while walking on a public sidewalk that abutted a premises located in Brooklyn. The plaintiff commenced an action against several defendants including Wyckoff Supermarket and alleged the defendants maintained the area negligently. The supermarket defendants filed a motion for summary judgment to dismiss the amended complaint and argued the condition was trivial. The Kings County Supreme Court granted the supermarket defendants’ motion.
On appeal, the Second Department reversed. The Court determined the defendants failed to establish a prima facie case through the plaintiff’s deposition testimony and photographs of the sidewalk. The Court held this evidence did not include objective measurements of the dimensions of the defect and “failed to sufficiently quantify or estimate the dimensions of the defect.” The Second Department explained that “while the photographs demonstrated the irregular nature of the sidewalk, it [wa]s impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted.”
5/13/2026 Jorgge v. Stop & Shop Supermarkets, Co., LLC
Appellate Division, Second Department
“Where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party's claim or defense.”
The plaintiff commenced an action after sustaining injuries from a fall at the defendant store. The defendant’s employee allegedly witnessed the accident and testified at his deposition that on the date of the accident, he gave the store manager a written statement. The plaintiff’s attorney made a demand for the written statement and the defense attorney responded that no written statement could be located. Defense counsel thereafter also provided an affidavit and a supplemental affidavit from the store manager stating that she could not recall whether she had asked the employee to prepare a written statement regarding the plaintiff’s accident. The affidavits further stated the store manager did not remember whether the employee ever provided her with a written statement; that she did not personally possess a written statement prepared by the employee; and that she “performed a thorough search of all locations within the subject store where a written statement from [the employee] would have been kept, at the request of the defendant's counsel, and was unable to locate a written statement prepared by” the employee.
The plaintiff moved to impose sanctions for spoliation of evidence under CPLR 3126 against the defendant. The plaintiff moved in part, to preclude the employee from testifying at trial. The Queens County Supreme Court granted the motion to impose sanctions against the defendant and preclude the employee from testifying at trial.
On appeal, the Second Department modified the order and deleted the provision which precluded the employee witness from testifying at trial, and substituted a provision directing that an adverse inference charge be given against the defendant at trial. The Court explained that despite the plaintiff establishing that the defendant was negligent in losing or destroying the statement, the plaintiff did not demonstrate that the conduct rose to being intentional or willful. The Second Department determined that “under the circumstances of this case, the appropriate sanction was to give an adverse inference charge against the defendant at trial with respect to the spoliation of [the employee’s] written statement.”
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hello readers,
This month’s section includes several May 2026 decisions addressing procedural diligence, motion practice, and the consequences that can follow when deadlines and court rules are not carefully followed. The cases below are reminders that while courts strongly prefer resolving matters on their merits, that preference does not excuse parties or counsel from complying with procedural requirements, scheduling orders, and local practice rules.
5/20/2026 Kakuriev v. Baffone Transportation, Inc.
Appellate Division, Second Department
Plaintiff was not entitled to sanctions or to strike Defendants’ answer based upon allegedly inconsistent statements regarding how the incident occurred.
Plaintiff moved pursuant to 22 NYCRR 130-1.1 for sanctions against defendants and their counsel and pursuant to CPLR 3124 and 3126 to strike defendants’ answer, arguing that defendant driver Francesco Fatta committed perjury by giving inconsistent accounts of the accident. Prior to the action, defendants’ insurer issued a denial letter stating that plaintiff attempted to improperly pass defendants’ vehicle while it was backing into an alley. However, in opposition to plaintiff’s summary judgment motion, Fatta later submitted an affidavit stating he was not reversing at the time of the accident and that plaintiff attempted to pass on the right while Defendants’ vehicle was stopped at a red light. Plaintiff later obtained portions of the insurer’s investigative file, including a claim note reflecting that Fatta had previously told the insurer he was “backing into a side alley loading dock” when the collision occurred.
The Second Department affirmed the denial of plaintiff’s motion, holding that the alleged inconsistencies did not constitute frivolous conduct warranting sanctions under 22 NYCRR 130-1.1. The Court further held that the drastic remedy of striking defendants’ answer under CPLR 3126 was unwarranted because plaintiff failed to establish that defendants acted willfully or contumaciously in discovery or provided fraudulent information sufficient to justify such relief. In doing so, the Court reiterated that actions should be resolved on the merits whenever possible and that striking a pleading remains an extreme sanction reserved for clear instances of willful noncompliance.
5/18/2026 Bunker Information Technology, LLC v. Centrilogic, Inc.
United States District Court, Western District of New York
Plaintiff’s repeated failure to comply with Local Rules defeated motion seeking leave to amend complaint after scheduling deadline expired
Plaintiff moved for leave to amend its complaint to add additional factual allegations uncovered during discovery and a new promissory estoppel claim. Although motions for leave to amend are generally governed by the liberal standard of Federal Rule of Civil Procedure 15(a)(2), the Court explained that a more demanding standard applied because the deadline to amend pleadings contained in the scheduling order had already expired. Once that deadline passed, plaintiff was first required to demonstrate “good cause” under Rule 16(b)(4) before the Court would even consider Rule 15’s more permissive amendment standard.
The Court found plaintiff failed to establish the diligence necessary to demonstrate good cause. Plaintiff had attempted to amend before the deadline, but its first motion was denied because counsel failed to file a notice of motion as required by the Local Rules. The Court specifically advised counsel to review and comply with Local Rule 7. Despite that warning, Plaintiff filed a second motion that again failed to comply with the Local Rules because it lacked the required attorney affidavit, declaration, or affirmation. The Court sharply criticized counsel’s repeated noncompliance, emphasizing that attorneys admitted to practice in the Western District certify that they have read and understand the Local Rules. The Court stated it was “clear” that Plaintiff’s counsel had not familiarized himself with those rules and explained that the Court was not obligated to perform “quality control” over deficient filings or alert counsel each time a filing failed to comply with straightforward procedural requirements.
In rejecting plaintiff’s argument that its earlier amendment attempts demonstrated diligence, the Court reasoned that repeatedly filing procedurally defective motions, even after being expressly warned by the Court, demonstrated the opposite. The Court concluded it could not “fathom” how failing to follow the “simple mandates” of the Local Rules could constitute diligence sufficient to satisfy Rule 16’s good-cause standard. Because plaintiff failed to demonstrate diligence, the Court recommended denial of the motion without ever reaching the more lenient Rule 15 amendment analysis.
5/2/2026 April I.O. v. Taylor
Appellate Division, Fourth Department
Plaintiffs’ complaint reinstated where brief law office failure did not justify dismissal on default
Plaintiffs commenced this action seeking damages for injuries sustained in a motor vehicle accident. Defendant. Defendant moved for summary judgment dismissing the complaint and all cross-claims against him. Plaintiffs failed to timely submit opposition papers or appear for oral argument, and Supreme Court granted defendant’s motion. Approximately two weeks later, plaintiffs moved to vacate the order pursuant to CPLR 5015(a)(1), arguing that their failure to oppose was the result of law office failure. Supreme Court denied the motion to vacate.
The Fourth Department reversed, holding that Supreme Court abused its discretion in refusing to vacate plaintiffs’ default. The Court explained that, to vacate their default in opposing the motion, plaintiffs were required to show both a reasonable excuse and a potentially meritorious opposition. Although plaintiffs’ counsel failed to properly calendar the opposition deadline, counsel had attempted to obtain Defendant’s consent to an adjournment before the return date and submitted opposition papers on the return date, albeit after business hours, under the mistaken belief that the motion would be taken on submission. The Court emphasized that there was no evidence of a willful default, the delay was negligible, and Defendant suffered no prejudice.
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Labor and Employment Law Desk: Issues for Schools, Retailers and Employers
By: Maxwell C. Radley [email protected]
5/22/2026 Balchan v. New Rochelle City School District et al
United States District Court, Southern District of New York
Former School District Employee walked out of a disciplinary hearing only to have the outcome of the hearing being upheld and providing preclusive effect to later lawsuit.
Dr. Balchan, former employee of New Rochelle City School District, challenged her termination after disciplinary proceedings arising from Section 75 charges of misconduct, incompetence, and insubordination, as well as disputes over her requests for family leave and personal days allegedly tied to religious observance. At her disciplinary hearing, Dr. Balchan and her counsel walked out of the hearing in protest. After she left, the hearing officer substantiated all charges. Dr. Balchan challenged the finding in arbitration, which only resulted in the hearing officer’s determination being substantiated. Dr. Balchan then sued in federal court. The District later moved for summary judgment and determined the disciplinary hearing’s findings had a preclusive effect. The court ultimately dismissed her claims for religious discrimination, retaliation, pregnancy discrimination, FMLA retaliation, stigma-plus, and New York Labor Law violations, finding either no protected activity, no credible religious basis, no discriminatory or retaliatory motive, or no due process violation. The only claim allowed to proceed was FMLA interference, based on a triable issue as to whether she gave sufficient notice of leave and whether the District’s failure to provide FMLA notice caused prejudice.
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Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
I hope everyone enjoyed the long holiday weekend! While the weather here in Western New York was anything but summerlike, it was nice to spend time with friends and family. I am also excited to introduce myself as a new contributor to Hurwitz Fine’s Premises Pointers! I look forward to sharing insights and developments in this evolving area of law. With the arrival of summer bringing increased travel, outdoor activities, and public gatherings, this month’s edition highlights important premises liability considerations for property owners and school districts working to maintain safe environments for their guests and communities.
Enjoy!
5/12/2026 Rios v. City of New York
Appellate Division, First Department
Defendants’ motion for summary judgment was granted on the grounds that plaintiff failed to raise an issue of fact in opposition regarding proof of prior written notice of the dangerous condition and that a height differential in a curb was an affirmative act of negligence by the defendant that was immediately apparent.
This case involved a plaintiff who tripped and fell due to a height differential in a metal curb cover on a sidewalk in New York City. The Supreme Court, New York County, granted summary judgment in favor of the City defendant and dismissed the complaint.
On appeal, the Appellate Division unanimously affirmed this decision. The Court found that the City had demonstrated the absence of prior written notice regarding the sidewalk curb condition that allegedly caused the plaintiff's fall. The plaintiff attempted to invoke the affirmative negligence exception to the prior written notice requirement, arguing that the City’s actions constituted affirmative negligence.
The First Department determined that the plaintiff failed to provide sufficient evidence that the height differential in the metal curb was the result of an affirmative act of negligence by the City that was immediately apparent. The plaintiff's assertions regarding the timing and cause of the curb's condition were deemed speculative. The Court noted that the metal curb cover could have been damaged by various events unrelated to the City's actions, and there was evidence that the City had not performed work on the curb prior to the accident.
The plaintiff also argued that the City's enlargement of a tree well increased the uneven surface area. However, the Court pointed out that the plaintiff’s own testimony indicated that her fall was caused by the height differential in the metal curb cover, not the sidewalk's uneven surface. Additionally, the plaintiff claimed the City failed to produce records about the tree well remodeling, but she had not requested such information before filing a note of issue and certificate of readiness.
Practice Pointer: This decision reinforces the requirement of prior written notice for municipal liability in sidewalk defect cases. Here, the court clarified that the affirmative negligence exception to the prior written notice rule requires concrete evidence of an immediately apparent hazardous condition created by the municipality’s affirmative act. Mere speculation or inference is insufficient.
5/20/2026 Rabito v. Union Free School District
Appellate Division, Second Department
Summary judgment will not be granted in favor of the moving party when there remain triable issues of fact regarding the foreseeability of the injury, the cause of the injury, and whether the claim is barred by the primary assumption of risk doctrine.
This case involves an action to recover damages for personal injuries sustained by an infant plaintiff, a fifth-grade student, during a field day activity at the defendant school. The plaintiffs alleged that the injury occurred when the infant plaintiff slipped and fell during an organized game on an outdoor field, attributing the accident to both a dangerous condition of the field and negligent supervision by the school. The defendant school district moved for summary judgment to dismiss the complaint, which was initially granted by the Supreme Court, Nassau County. However, upon appeal, the Appellate Division reversed the judgment, denied the defendant's motion for summary judgment, and reinstated the complaint.
The Second Department found that the defendant school district failed to eliminate all triable issues of fact regarding: whether the accident occurred so quickly that no amount of supervision could have prevented it; the applicability of the defense of primary assumption of risk; and whether the activity leading to the accident was compulsory.
Practice Pointer: This decision underscores the responsibilities of schools to supervise students and maintain a safe premises. Furthermore, it highlights that summary judgement is not appropriate where genuine issues of material fact remain, particularly regarding causation, foreseeability, and the nature of the activity involved.
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