Premises Pointers - Volume IX, No. 2

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:

I’m currently attending the FDCC Annual Meeting in beautiful Park City, Utah, where I had the opportunity to speak this morning on “Cultivating Today’s and Tomorrow’s Legal Leaders: Strategies for Law Firms and In-House Counsel.” It is always a pleasure to collaborate with colleagues from across the country on issues and topics we are all facing. Today’s program did not disappoint! It was an energizing exchange of ideas on leadership development within the defense and insurance industries.
 
The entire week in Park City has been a wonderful opportunity to reconnect with FDCC friends. The programming, speakers, and venue were all amazing!
 
Back in New York, a recent decision by the New York Court of Appeals has clarified a key legal standard in sexual abuse cases involving employer liability. The court ruled that, to hold an employer responsible for an employee’s abusive actions, there must be proof the employer had actual or constructive knowledge of the employee’s dangerous propensity to commit sexual abuse. Hurwitz Fine P.C. attorneys Lee Siegel and Evan Gestwick provide insights to Law360 on this legal shift, which could significantly affect how such claims are defended and covered moving forward here.
 
It’s hard to believe August is already here…summer always seems to fly by. Wishing you a wonderful end to your 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] 

This month we are covering three federal court cases. In two of the cases, retail defendants Target and Apple both prevailed on their motions for summary judgment, and in the third case, Costco successfully opposed plaintiff’s motion to remand the case to state court.
 
7/25/2025         Khaimova v. Costco Wholesale Corp.
United States District Court, Eastern District of New York
A plaintiff cannot deprive a federal court of jurisdiction by reducing their demand to $75,000 or less once the jurisdictional threshold has been satisfied.

Plaintiff Lyudmila Khaimova allegedly slipped and fell at a Costco store in Queens, New York on September 12, 2020. She filed suit in New York state court on July 20, 2023, without specifying a dollar amount for damages. On February 26, 2024, plaintiff's counsel communicated a demand of $250,000 to defendant's counsel. Defendant removed the case to federal court on March 7, 2024, based on diversity jurisdiction. After discovery closed on January 31, 2025, and before dispositive motions were due, plaintiff filed a motion to remand on March 3, 2025, claiming she had reduced her demand to $74,999.99. Defendant argued that the sole purpose of reducing the demand was to avoid the filing of a dispositive motion. The motion was denied because the amount in controversy is measured as of the date of the filing of the complaint. The reduced demand did not change the fact that the jurisdictional threshold was satisfied at the time of filing of both the complaint and the notice of removal.
 

7/07/2025       Levine v. Apple, Inc.
United States District Court, Southern District of New York
Retail defendant’s motion for summary judgment was granted in part because the plaintiff was unable to rule out other potential causes of her fall, making any determination of causation "predicated on sheer speculation."

Valerie Levine, an 86-year-old woman, fell at an Apple Store on April 6, 2023, sustaining a fractured femur requiring surgery. Levine was being assisted by Apple employee Leah Singleton at the time of the fall. Levine claimed she suddenly found herself on the ground and saw Singleton's shoes and socks going horizontally across her body, but denied feeling any physical contact with Singleton or any object before falling. Levine testified that she did not trip, lose balance, slip, or experience dizziness before falling. Singleton stated she was pulling out a chair for Levine when she turned around and saw Levine already falling. No closed-circuit television footage of the incident exists. The court held the following: 1.) that summary judgment was appropriate where plaintiff failed to establish causation, an essential element of negligence, 2.) that neither direct nor circumstantial evidence in the record was sufficient to create a genuine dispute of material fact regarding the cause of plaintiff's fall, and 3.) Levine's speculation that Singleton tripped over her was insufficient, as Levine denied feeling contact with Singleton before falling and did not describe how Singleton's actions resulted in her fall. The court rejected Levine's argument that Singleton must have caused the fall because she was the only person in the area, as the record showed other people were present.
 

7/02/2025          Pimentel v. Target Corp.
United States District Court, Southern District of New York
Target’s motion for summary judgment was granted based on the complete lack of evidence establishing actual or constructive notice.

On May 20, 2022, Heriberto Pimentel slipped and fell on water while shopping at a Target store in the Bronx, resulting in injuries. Neither Pimentel nor his wife observed anything on the floor before he slipped and fell. Pimentel and his wife did not know the origin of the water on the floor, nor how long it had been there before the fall. Target produced video footage showing 38 minutes before and 23 minutes after the incident. A Target Security Specialist conducted a formal safety walk through the relevant aisle fewer than two minutes prior to the incident without noting any issues. Multiple Target employees and customers moved through the aisle prior to the incident without noticing any water on the floor. In granting Target’s motion, the court noted that Pimentel produced no evidence that Target created the condition that caused him to fall. It was undisputed that Pimentel did not know the origin of the water. There was no evidence that Target or any of its employees were aware of water on the floor. No reports or complaints about the condition were made. There was no evidence of constructive notice. The court found no evidence that the defect was visible and apparent, as numerous Target employees and customers moved through the aisle without noticing any water. Additionally, there was no evidence regarding how long the water had been on the floor. The water was described as "very clear" with no black marks, discoloration, or footprints in it, suggesting it had not been there long.

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

Hello Subscribers,
 
We still like to think that courts slowdown in the summer and this month’s edition is evidence of that as we only report on one discovery case involving a motion to vacate a note of issue. Such a motion is addressed to the sound discretion of the trial court. Where a party’s motion to vacate a note of issue is timely, the party is required only to demonstrate why the case is not ready for trial (see 22 NYCRR 202.21[e]). However, where the motion is not timely, the party seeking relief must meet the more difficult standard of 22 NYCRR 202.21(d), which requires the movant to demonstrate that “unusual or unanticipated circumstances” have developed after the filing of the note of issue that require additional pretrial proceedings to prevent substantial prejudice. A lack of diligence in seeking discovery does not constitute “unusual or unanticipated” circumstances warranting post-note of issue disclosure.
 
If you have any good stories involving a motion to vacate the note of issue, please reach out and share. Until next issue, continue enjoying summer!
 
Marc


7/23/2025            Echavarria v Rego Park Gardens Owners, Inc.
Appellate Division, Second Department
Defendants not entitled to vacatur of plaintiff’s note of issue as motion was untimely and defendants failed to show the existence of “unusual or unanticipated” circumstances as to why additional discovery was warranted.
 
Plaintiff allegedly tripped and fell on a sidewalk abutting defendants’ property. At his deposition, plaintiff testified that he had been involved in a motor vehicle accident (MVA) after his trip and fall. He received therapy for low back pain after that MVA but had not yet filed a lawsuit for the MVA. After receiving post-deposition discovery demands seeking, among other things, information regarding that MVA, plaintiff failed to disclose that information. The trial court denied defendants’ motion to vacate the note of issue and to compel plaintiff to provide certain discovery.
 
The Second Department affirmed the trial court's decision to deny defendants’ motion because they waited more than four months after the note of issue had been filed to file their motion. Therefore, it was untimely, and the Court held that defendants failed to demonstrate the existence of unusual or unanticipated circumstances since the filing of the note of issue warranting its vacatur. Accordingly, the Court determined that defendants failed to demonstrate that additional discovery was warranted.

 
Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Patrice C.S. Melville pcsm@hurwitzfine.com

Hi Readers,

With the recent heatwave in New York and across the Country, I thought you might appreciate some discussion about ice! The slip and fall case highlighted below is yet another reminder that choosing the right expert can be vital. It also highlights the importance of keeping good maintenance and inspection records and reminds us that a general awareness of a condition is not enough to establish constructive notice of the specific condition that causes the plaintiff’s accident. I hope this case cools you off a bit. Enjoy the rest of the Summer. It is flying by!  
 

7/30/2025           Bell v. Bollenbach & House, Inc.
Appellate Division, Second Department 
An expert preparing an affidavit must be qualified to render an opinion and base his opinion on admissible evidence.
 
The plaintiff in this case alleged that he sustained injuries when he slipped and fell on ice in the drive-through lane of a parking lot while delivering donuts to a Dunkin Donuts restaurant located in Washingtonville (“the premises”). The defendant, Bollenbach & House, Inc. (“Bollenbach”), owned the premises, which it leased to defendant, Lucky Munchkin, Inc. (“Lucky”). Lucky subleased the premises to the defendant, Washingtonville Donuts, LLC (“Washingtonville Donuts”). Lucky contracted with the defendant Monteverde Landscaping, Inc. (“Monteverde”), to provide snow and ice removal services at the premises for the 2019-2020 winter season.
 
The plaintiff filed suit against Bollenbach, Lucky, Monteverde, and Washingtonville Donuts. Monteverde and Washingtonville Donuts each moved for summary judgment dismissing the amended complaint as asserted against each of them. Bollenbach and Lucky separately moved for summary judgment dismissing the plaintiff’s claims against Lucky. The lower court granted the defendants’ motion. The plaintiff appealed.
 
On appeal, the Appellate Division found that Monteverde, the snow removal contractor, established it did not launch a force or instrument of harm (or that any of Espinal exceptions apply) and, thus, create or exacerbate the allegedly dangerous condition; and that any conclusion that the icy condition upon which the plaintiff fell was formed when snow piles created by its removal services melted and refroze would be based on mere speculation. Monteverde relied on the deposition testimony of its president, the plaintiff, the manager of the premises, and the owner of the franchise, which demonstrated that there was no evidence of any snow piles in the area of the accident prior to or on the date of the accident.
 
The Appellate Division reasoned that while the plaintiff submitted an expert affidavit in support of its opposition to the various motions for summary judgment, the expert affidavit failed to create an issue of fact. First, the expert, a civil engineer, was not qualified to render an opinion regarding the evaluation of weather data. Secondly, the expert relied on Weather Underground records that were not submitted with his affidavit, and thus, his assertions regarding the weather conditions were inadmissible hearsay. Third, the expert based his conclusions on observations of conditions at the premises 14 months after the accident.
 
The Appellate Division further held that Washingtonville Donuts established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged icy condition in the area in which the plaintiff fell or have notice of it. The evidence submitted established that it had not received any complaints about the alleged icy condition in the area where the plaintiff fell, that it conducted travel-path inspections at regular intervals and at closing, and that there was no indication that ice was present.
 
Lastly, the Appellate Division affirmed the lower court’s dismissal of the plaintiff’s claims against Lucky. Lucky established, through evidence, including deposition testimony, that did not create the icy condition or have notice of it. While the plaintiff attempted to argue that Lucky had constructive notice because they were aware of a recurring icy condition on the premises, the Appellate Division reiterated the longstanding rule that a general awareness with respect to an alleged recurring condition is insufficient to establish constructive notice of the specific condition that allegedly caused the plaintiff to fall.

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

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
I hope you are all enjoying your summer! For me, July is that magical time of year when ice cream becomes a food group and flip-flops become the choice of footwear for most occasions. This month we take a closer look at two (2) decisions involving common premises liability claims: constructive notice based upon an ongoing and recurring dangerous condition; and an open and obvious condition.


7/03/2025      Levitt v. Tops Mkts., LLC
Appellate Division, Third Department
A general awareness of a dangerous condition cannot create an inference of constructive notice of the particular condition that caused the plaintiff's injury.
 
The plaintiff commenced an action after she allegedly slipped on a cherry tomato and fell at the defendant Tops’ store. The plaintiff was unaware as to how long the tomato was on the floor prior to her fall and did not observe the tomato before she fell. The defendant Tops moved for summary judgment to dismiss the complaint and argued it did not create the alleged dangerous condition and did not have actual or constructive notice of the condition. Thompkins County Supreme Court granted the defendant’s motion with regard to actual and constructive notice but held there were material issues of fact as to whether the defendant Tops maintained the store in a reasonably safe condition and/or created a dangerous condition.
 
The defendant Tops appealed from the lower court's order, arguing that the court erred in failing to dismiss the complaint in its entirety and the plaintiff cross-appealed on the issue that defendant did not have constructive notice. The Third Department reversed as to the defendant’s partially denied motion and held the defendant’s motion should have been granted in its entirety and the complaint dismissed.
 
The Second Department explained that the defendant met its burden in establishing that it maintained its property in a reasonably safe condition, did not create the allegedly dangerous condition, and did not have either actual or constructive notice of such condition based upon the testimony of several employees. The store manager testified to inspecting the store every morning when he arrived and throughout the day. The store manager did not remember any produce on the floor before the plaintiff fell. Further, the produce manager testified that the defendant did not have regularly scheduled inspections but the employees were to be “continually vigilant” for dropped items, “if you see something, immediately pick it up.” The produce manager regularly inspected the floors and was unaware of any complaints or incidents due to produce being on the floor. The Second Department noted that “more importantly, [the produce manager] testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.”
 
With regard to the issue of constructive notice, the plaintiff alleged the defendant Tops had constructive notice because they were aware of the ongoing and recurring dangerous condition of produce being dropped onto the floor frequently. The Second Department held that the plaintiff’s “reliance on the produce manager's own testimony that ‘every once in a while’ he has seen a customer spill a product, shows only a general awareness that a dangerous condition might exist and is legally insufficient to constitute constructive notice of the particular condition that caused plaintiff's fall.” The Court further held the plaintiff’s claim that a “grate mat” would have prevented her fall was speculative and insufficient as it was unaccompanied by an expert affidavit.


7/23/2025    Raspberry v. Best W. JFK Airport Hotel et al.
Appellate Division, Second Department
There is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. A court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence.
 
The plaintiff commenced a personal injury action after she tripped and fell over a milk crate in the defendant Best W. JFK Airport Hotel’s (“the defendant hotel”) hallway. Prior to her incident, she had been working as a security guard at the hotel for approximately one (1) year. She had regularly walked the hallways of the hotel and observed milk being repeatedly delivered to the hotel in plastic crates. She had also seen milk crates placed in various locations such as the stairwells and hallways of the hotel, including the area where the plaintiff fell. The plaintiff and other security guards would sit on the milk crates in the hallways during their shifts. On the date of her alleged incident, the plaintiff fell during her daytime shift on an empty black milk crate. She described the carpeting in the area as reddish, green-ish . . . earth colors.”
 
The defendants moved for summary judgment to dismiss the amended complaint and the Queens County Supreme Court denied the motion. On appeal, the Second Department reversed and held the lower court should have granted the defendants’ motion for summary judgment dismissing the amended complaint. The Court explained that the hotel defendants met their burden in establishing that “the empty milk crate was open and obvious, as it was readily observable by those employing the reasonable use of their senses, and was not inherently dangerous under all the existing circumstances.” In opposition, the plaintiff failed to raise a triable issue of fact.

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