Premises Pointers - Volume IX, No. 3

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:

We are proud to begin this edition of Premises Pointers with exciting news: 26 Hurwitz Fine attorneys have been selected for inclusion in the 2026 edition of The Best Lawyers in America®. In addition, four of our attorneys were recognized on the prestigious Best Lawyers: Ones to Watch® in America list.
 
This recognition reflects the results of an extensive peer-review process, with more than 26 million evaluations analyzed for The Best Lawyers in America® and over 5.4 million evaluations considered for Ones to Watch®.

Our attorneys were recognized across a wide range of practice areas, including Personal Injury Litigation – Defendants, Litigation – Insurance, Medical Malpractice Law – Defendants, Litigation – Municipal, and Product Liability Litigation – Defendants. Beyond litigation, we are also proud to be honored in areas such as Corporate Law, Commercial Litigation, Insurance Law, and Mediation.
 
For our full announcement and complete list of attorneys recognized, please visit: 26 Hurwitz Fine Attorneys Recognized by The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America.
 
And there is more exciting news! Please join me in welcoming Hurwitz Fine attorney Michael Lieberman to the Premises Pointers team. Mike will be covering NYS discovery issues. As you will see from Mike’s cover note, he’s a football fan so feel free to reach out to Mike about all things discovery and Buffalo Bills football!
 
On the AI front, across nearly 300 cases in the United States and abroad, lawyers and self-represented litigants have submitted briefs and legal memoranda containing “hallucinated” decisions and quotations—fabricated citations generated by large-language artificial intelligence programs such as ChatGPT. Courts have sanctioned both attorneys and clients for relying on these false authorities. Hurwitz Fine Insurance Coverage senior member Dan D. Kohane has closely tracked and summarized many of these cases on LinkedIn and was recently asked by the ABA Journal to comment on two of the latest decisions.
 
It’s hard to believe summer is already winding down and Labor Day is here. Wishing you a smooth start to the fall season, and as always, we look forward to keeping you informed on the latest in premises liability and beyond.

-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] 
 

8/25/2025      McFee v. BJ’s Wholesale Club, Inc.
United States District Court, Eastern District of New York
Defendant BJ’s motion for summary judgment was granted based on the lack of evidence proving notice despite plaintiff’s use of an expert affidavit.

On August 20, 2020, plaintiff Tricia McFee slipped and fell in the bottled water display area at BJ's Wholesale Club in Brooklyn. After her fall, plaintiff noticed "puddles" of water on the floor, though parties disputed whether the water was "dirty brown" or "clear." BJ's employees moved pre-stacked pallets of water onto the sales floor overnight when the club was closed to customers. BJ's employees performed inspections of the water section approximately twenty and thirty minutes prior to the accident, respectively, and neither found water on the floor. Neither plaintiff nor her cousin observed any liquid or water on the floor prior to plaintiff's fall or any BJ's employees handling products in the Water Section prior to the accident. After the accident, BJ's employees could not determine the source of the water on the floor. In opposition to BJ’s motion for summary judgment, plaintiff retained a certified packaging professional as an expert regarding the causal factors of the accident who opined that BJ’s knew or should have known of the hazard created by the water display. The Court granted in part and denied in part defendant's motion to exclude the expert report and testimony of plaintiff's liability expert, Sterling Anthony. The Court admitted portions of Anthony's report discussing the general risks of compression failure in bottled water packaging but excluded portions regarding the causal relationship between the water condition at BJ's and plaintiff's slip-and-fall.
 
 
8/14/2025        Jedra v. Wal-Mart
United States District Court, Northern District of New York
Defendant’s untimely removal resulted in remand to state court.

Plaintiff Sharon Jedra filed a negligence lawsuit against Walmart defendants in New York Supreme Court for Cayuga County on November 5, 2024. Defendants were served with the summons and complaint on November 7, 2024. Plaintiff's complaint explicitly stated damages "exceeds seventy-five thousand dollars and the jurisdictional limits of the New York State Supreme Court." Defendants answered on November 27, 2024 and served a supplemental demand for relief pursuant to N.Y. C.P.L.R. § 3017(c). Plaintiff responded on January 31, 2025 with a demand for $50,000,000. Defendants filed a notice of removal on February 19, 2025, claiming diversity jurisdiction. Plaintiff moved to remand on March 21, 2025, arguing removal was untimely. The court granted the motion to remand based on the following reasoning that the Second Circuit has established a bright-line rule that the "removal clock" starts once the defendant receives a complaint that explicitly specifies the amount of monetary damages sought. Plaintiff's complaint clearly stated damages "exceeds seventy-five thousand dollars and the jurisdictional limits of the New York State Supreme Court," which was sufficient to inform defendants that the case satisfied the federal diversity jurisdiction requirements. The 30-day removal period began on November 7, 2024 (when defendants were served) and ended on December 9, 2024. Defendants did not file their notice of removal until February 19, 2025, more than two months after the deadline. The court denied attorneys' fees because defendants' basis for removal, while incorrect, was not objectively unreasonable or frivolous. Defendants mistakenly believed that plaintiff's supplemental notice of demand, rather than her complaint, triggered the removal clock.

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

Hi Readers,

It’s hard to believe this year is almost three-quarters of the way through, and winter is around the corner. As such, I thought it would be appropriate to highlight a case, that provides a reminder as to what is required to properly defend a snow-and-ice case.

This month’s case deals with the storm-in-progress doctrine.

8/27/2025         Genutis v 555 Dekalb Ave., LLC
Appellate Division, Second Department
In order to successfully dismiss a case pursuant to the storm-in-progress doctrine, defendant must prove that Plaintiff’s injuries were not the result of a pre-existing condition.
 
It appears that Defendant’s summary judgment motion was filed before plaintiff definitively identified the condition that allegedly contributed to her fall. Defendant argues that it is entitled to summary judgment, regardless of whether plaintiff slipped on snow, or tripped due to a sidewalk defect. For purposes of this analysis, we will focus on the argument related to a slip on snow, only.
 
Defendants contend that the evidence establishes that plaintiff slipped and fell on snow, and that her claim is barred due to the storm-in-progress doctrine. The Court points out that while a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice, until an “adequate” period of time has passed, the property owner must still demonstrate that plaintiff’s injures were not the result of a pre-existing condition.

 
School District & Municipal Liability
By: Jody E. Briandi [email protected]

This month I am doing double duty. While the Wisnowski case is not a school district case, it is a municipal case involving a motion for leave to serve a late notice of claim. What was surprising here was that the Appellate Court reversed the Trial Court remanding the case and permitting pre-suit discovery on the question of whether the defendant had notice sufficient to justify granting the motion for leave.

6/27/2025       Matter of Wisnowski v. City of Buffalo and 4^th Generation Construction
Appellate Division, Fourth Department
Claimant permitted discovery on a motion for leave to serve a late notice of claim on the issue of notice.

Claimant's motion for leave to file a notice of claim and motion for pre-action discovery were both denied by the trial court. On appeal, the court reversed the ruling that denied claimant’s request for discovery. The court reasoned that since demonstrating notice is a factor when considering a motion for leave to serve a late notice of claim that the trial court abused its discretion denying the portion of the motion that asked for pre-suit discovery. The case was remanded to the trial court to determine the scope of the discovery and then to determine de novo that part of claimant’s application seeking leave to serve a late notice of claim.

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

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
As summer comes to an end, I always cannot help but feel a little sad as the long days get shorter and the weather becomes colder. But then I remember that fall brings crisp air, apple cider, pumpkins, colorful foliage, and of course, the glorious return of football! This month’s article dives into two (2) timely decisions, one involving yet another open and obvious hazard and another enforcing a post-mediation settlement agreement. 

8/6/2025    Karlin v. K. Thompson Foods, LLC
Appellate Division, Second Department
“The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case.”
 
The plaintiff tripped and fell on a wooden pallet at the defendant’s store. The pallet was located underneath a cardboard display which contained watermelons. A photograph of the subject display is below:



The defendant filed a motion for summary judgment to dismiss the complaint on the basis that the alleged condition was open and obvious and not inherently dangerous. The Suffolk County Supreme Court denied the defendant’s motion. In response, the defendant filed a motion for leave to reargue its motion for summary judgment. Upon reargument the lower court vacated the prior order denying the motion and granted the defendant’s motion for summary judgment.
 
On appeal, the Second Department held the lower court properly vacated its prior order denying the defendant’s motion and thereupon granted the motion. The Court explained that the defendant established that the alleged hazardous condition was open and obvious and not inherently dangerous by submitting evidence that:

• The color of the bin was in contrast to the surrounding floor;
• The lighting condition was good at the time of the accident;
• The plaintiff was aware of the pallet and display bin on top of the pallet before she fell; and
• The plaintiff was familiar with the area.

In opposition, the plaintiff failed to raise a triable issue of fact.


8/6/2025     Carbone v. ISS Facility Servs., Inc.
Appellate Division, Second Department 
Pursuant to CPLR § 2104, an agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him/her or his/her attorney. The party seeking to vacate or set aside a stipulation of settlement has the burden of establishing good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, or overreaching, or that the terms of the stipulation were unconscionable, in order to be relieved from the consequences of the stipulation.
 
The plaintiff commenced a personal injury action after she slipped and fell on a wet floor while working  for an airline at JFK International Airport. Following mediation, the parties entered into a settlement agreement. Per the agreement, the defendant was to pay the plaintiff $150,000 in exchange for a release by the plaintiff of any and all claims of liability against the defendant stemming from the accident. The agreement was made “subject to satisfactory resolution of [a] workers' comp[ensation] lien by defense.” Thereafter, the defendant and the insurer of the plaintiff's workers' compensation policy executed a stipulation which indicated the workers' compensation lien was settled for the sum of $68,024.04.
 
Following the settlement of the workers’ compensation lien, the plaintiff refused to execute the settlement documents releasing the defendant from liability. In response, the defendant filed a motion to enforce the settlement and the Queens County Supreme Court granted the defendant’s motion.  
 
On appeal, the Second Department affirmed the lower court’s holding. The Court determined the settlement agreement complied with CPLR § 2104 as the agreement included all material terms of the agreement including the settlement of the workers’ compensation lien and there was mutual asset. In opposition, the plaintiff failed to establish a sufficient reason to invalidate the agreement.

 
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Michael L. Lieberman [email protected]

Hello Readers,

I’m excited to join Premises Pointers and make this column my own. As summer is starting to wind down, I hope everyone is able to make the most out of the season before the temperatures start to shift. For me, one of my favorite seasons is starting up. Football season is just a week away and I, for one, cannot wait to see how it unfolds.

Go Bills!

8/6/2025       Frenkel v. 532 Neptune Residential, LLC
Appellate Division, Second Department
Plaintiff failed to meet her burden to establish she was entitled to quash Defendant’s subpoena to take deposition of nonparty.

Plaintiff brought this action after allegedly tripping and falling in a parking lot owned by the defendant. Plaintiff moved to quash a subpoena Defendant served to depose a nonparty, intending to question the witness about an entry she made in the plaintiff’s medical record. The entry recited a statement made by the plaintiff as to how the accident occurred. The trial court granted the motion on the grounds that the testimony would be inadmissible at trial because the medical hospital entry was hearsay.

The Second Department reversed the trial court. They noted that a party may obtain discovery from a nonparty as long as the nonparty is apprised of the reasons such disclosure is sought. Given that the defendant in this case satisfied that notice requirement, the plaintiff had the burden of establishing that the testimony would be “utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.” The Second Department held that plaintiff’s argument that the testimony would be inadmissible as hearsay did not successfully meet this burden.


8/13/2025            Kornreich v. Honeyman
Appellate Division, Second Department
Defendants are granted summary judgment because Plaintiff failed to disclose expert report prior to a Court-imposed deadline and filing an amended note of issue.

Plaintiff commenced this action in July 2015, after allegedly tripping and falling when entering a bar. In August 2018, the trial court had issued an order dictating that “ALL outstanding discovery, to the extent not already provided or completed, including depositions, are to be exchanged and/or completed on or before October 5, 2018.” The plaintiff filed an amended note of issue almost three years later in January 2022. At this time, plaintiff never served an expert witness disclosure.

Defendants moved for summary judgment on the grounds and plaintiff opposed the motions with an affidavit from an expert witness that was dated April 21, 2016. The trial court granted defendants summary judgment, noting that it had declined to consider the plaintiff’s expert affidavit.

The Second Department upheld the trial court’s decision. They noted that the defendants had met their initial burden of establishing that the subject entrance was not in a dangerous or defective condition at the time of the plaintiff’s fall via an expert report. Because the trial court was within it’s discretion to decline considering plaintiff’s expert report, plaintiff failed to raise a question of fact on the issue of whether such a condition existed.

CPLR 3212(b) provides that “where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange was not furnished prior to the submission of the affidavit.” However, CPLR 3101(d)(1)(i) provides, with the exception of good cause, parties must disclose expert witnesses. The Second Department recognized that “trial courts are vested with broad discretion in making determinations concerning matters of disclosure.” The decision of the trial court was within that discretion due to plaintiff’s failure to provide a reasonable excuse for failing to comply with the trial court’s order and failure to show good cause for not disclosing the expert’s affidavit before filing an amended note of issue.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Elizabeth K. Ognenovski
eko@hurwitzfine.com

Michael L. Lieberman
[email protected]