Premises Pointers - Volume IX, No. 4

Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] 

9/26/25     Mahoney v. Whole Foods Grp., Mkt. Inc.
United States District Court, Eastern District of New York
Plaintiff’s attempt in this slip and fall case to prevail on a novel legal theory based on NY Labor Law Section 376 was unsuccessful because plaintiff was not within the class the statute was designed to protect.
 
Plaintiff Deborah Mahoney filed a negligence action against Whole Foods Market Group, Inc. after slipping and falling at a Whole Foods store. The claims included common law negligence and an alleged violation of NY CLS Labor § 376, which requires mercantile establishments to maintain safe conditions for employees and persons "frequenting" the premises. As often seen with retail cases, the case was removed to federal court based on diversity jurisdiction. Plaintiff, who had shopped at the store only a few times before the incident, slipped and fell near the fish counter, allegedly due to water on the floor. After the fall, Plaintiff noticed water on the floor and wet clothes, but there was no evidence of how long the water had been present or how it got there. Store management was unaware of prior similar incidents or leaks in the area.
 
Whole Foods moved for summary judgment on the negligence claim, arguing lack of actual or constructive notice of the hazardous condition. Plaintiff opposed, arguing that summary judgment should only address notice, not the entire negligence claim, and that she should be allowed to proceed on a theory that Whole Foods created the hazard. Plaintiff also argued that NY CLS Labor § 376 provided a private right of action for her injuries. The court granted summary judgment for Whole Foods on the negligence claim, finding no evidence that Whole Foods had actual or constructive notice of the hazardous condition. The court later clarified that summary judgment was also appropriate on the issue of whether Whole Foods created the hazard, as Plaintiff failed to provide evidence of any affirmative act by Whole Foods that created the dangerous condition. Mere speculation or the fact that the store used a seafood display with ice was insufficient. The court dismissed the claim under NY CLS Labor § 376. It was determined that section 376 does not provide an express or implied private right of action for customers like Plaintiff, as she did not "frequent" the store within the meaning of the statute (having only visited "a few times" and not "often or habitually"). The court found Plaintiff was not within the class of persons the statute was intended to protect.
 
 
9/26/25    Almodovar v. Wal-Mart Stores E., LP
United States District Court, Southern District of New York
Retailer’s motion for summary judgment was granted based on plaintiff’s failure to meet her burden of proof and the lack of evidence establishing actual or constructive notice, as well as evidence to support a failure to inspect theory.
 
Plaintiff Jarline Almodovar slipped and fell in a Wal-Mart store in Middletown, New York, while shopping with her husband. The incident occurred near a self-service water filling station and an area where dishwashing liquid is sold. After the fall, water was observed on the floor, but neither Almodovar nor her husband saw the water before the accident or knew how it got there or how long it had been present.

The water was described as clear, with no track marks, footprints, or debris. There was no evidence regarding the frequency of employee presence in the area or any prior complaints or observations of the water.
 
Plaintiff claimed that Wal-Mart was negligent in maintaining the premises, leading to the slip and fall. Focus was placed on whether Wal-Mart had constructive notice of the water hazard, arguing that the location was one where employees should have seen and remedied the condition. Plaintiff also advanced a "failure to inspect" theory, suggesting that a reasonable inspection would have revealed the hazard. Wal-Mart argued there was no evidence it created the hazardous condition, had actual notice, or had constructive notice of the water on the floor. Further, Wal-Mart   contended that the water was not visible and apparent prior to the fall, and there was no evidence regarding how long it had been present or that any inspection policy was violated.

The court determined that there was no evidence presented that Wal-Mart or its employees affirmatively created the water hazard. The mere presence of a self-service station did not establish creation of the hazard. There was also no evidence that showed that Wal-Mart had actual notice of the water, as there were no prior reports or observations by employees. Finally, the court found no evidence that the water was visible and apparent before the fall, as neither the plaintiff nor her husband saw it beforehand. There was also no evidence of footprints, track marks, or other indicators suggesting the water had been present for a significant period. As for the failure to inspect theory, plaintiff failed to provide evidence of a required inspection policy or that a reasonable inspection would have discovered the water. The court noted that the burden was on the plaintiff to show that a reasonable inspection would have revealed the hazard. Accordingly, the court granted summary judgment in favor of Wal-Mart, finding that the plaintiff failed to raise a genuine issue of material fact regarding Wal-Mart's creation of the hazard, actual or constructive notice, or failure to inspect.
 
 
9/23/25    Peters v. Whole Foods Mkt. Grp., Inc.
United States District Court, Southern District of New York
Retailer’s motion for summary judgment was denied based on questions of fact raised by video surveillance showing another customer slip in the area in question 13 minutes before the plaintiff’s fall.
 
The plaintiff, Florence Peters, brought a negligence action against Whole Foods after slipping and falling in a Whole Foods store. Peters alleged that she slipped on a wet or slippery condition near the hot food bar while purchasing lunch. Whole Foods moved for summary judgment, arguing that there was no evidence it had actual or constructive notice of the hazardous condition. Whole Foods contended that it had no notice of any wet or slippery condition, citing routine inspections and the absence of reported spills or abnormalities in the 20 to 30 minutes before the incident. The plaintiff, however, argued that video footage showed visible and apparent puddles of water around the hot food bar, that another customer slipped in the same area approximately 13 minutes before her fall, and that a Whole Foods employee was present in the area and had the opportunity to observe and remedy the condition. The plaintiff also challenged the credibility of Whole Foods’ inspection log, asserting that the video did not show an inspection at the time indicated. The court found that, although some of the plaintiff’s arguments were speculative, such as interpreting post-accident pointing in the video as evidence of pre-existing wet spots, a reasonable jury could find that a wet or slippery condition existed for at least thirteen minutes prior to the plaintiff’s fall, based on the video evidence of another customer slipping and the presence of a Whole Foods employee in the area. The court noted that New York case law varies on how long a dangerous condition must exist to establish constructive notice, but found that the circumstances here raised a genuine issue of material fact. The adequacy and timing of Whole Foods’ inspection were also deemed factual questions for the jury. As a result, the court denied Whole Foods’ motion for summary judgment, finding that material issues of fact remained regarding constructive notice and the adequacy of inspection.
 

8/27/25    Crawford v. Walmart Inc.
United States District Court, Eastern District of New York
Retailer’s motion for summary judgment granted due to no proof of when the condition was created, how it was created or notice to defendant it existed.

Plaintiff Crawford slipped on a black, wet substance in an aisle while shopping. She did not see the substance before her fall and did not know how it came to be there or how long it had been present. An eyewitness observed a skid mark and oily substance on the floor after the incident but did not know how long it had been there or how it got there. Walmart employee observed "something" on the floor after being alerted to the incident but did not investigate further. No video footage of the incident was available. Walmart moved for summary judgment, arguing that Plaintiff could not establish that Walmart created the hazardous condition or had actual or constructive notice of it. Walmart stressed that Plaintiff and witnesses only observed the substance after the fall, and that photographs did not show evidence (such as other footprints or cart tracks) indicating the substance had been present for a significant period. Plaintiff opposed summary judgment, arguing that there was "direct and inferential evidence" of constructive notice. She claimed the substance was visible and apparent, citing witness observations and photographs taken after the incident. She further argued that photographs showed trails from shopping carts and footprints, suggesting the condition existed for a significant period. Finally, she asserted prejudice due to Walmart's failure to preserve video footage, claiming this hindered her ability to uncover additional facts. The court found no evidence that the substance was visible and apparent before the fall; all observations occurred after the incident. The court held that the mere existence of a foreign substance, without more, is insufficient to support a negligence claim. As for the argument the video was not preserved, the court rejected it, noting that no video existed and Plaintiff did not develop this argument or request relief. The court granted summary judgment to Walmart.

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

Hi Readers,

How fitting is the title of this column? In honor of the fall season, this month’s column focuses on two cases involving trip-and-fall incidents. Just as autumn reminds us to watch our step on shifting leaves and uneven paths, the law reminds us of the consequences that follow a misstep—whether literal or procedural.   
 
9/24/25            Coates v. Brooklyn Hosp. Ctr.
Appellate Division, Second Department
Liability cannot be imposed for a dangerous or defective condition if a plaintiff is unable to identify the condition that caused her accident without speculation
 
The plaintiff commenced this action against the defendant to recover damages for personal injuries that she alleged she sustained when she tripped and fell on a defective sidewalk on or abutting the defendant's property. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff could not identify the location or cause of her fall. The lower court granted the defendant’s motion. The plaintiff appealed.
 
On appeal, the Appellate Division affirmed the lower court ruling, finding in favor of the defendant. The Appellate Division noted that to impose liability upon a defendant property owner in a trip and fall action, there must be evidence of a dangerous or defective condition and that the defendant either created the condition or had actual or construction notice of it and failed to remedy it within a reasonable time. The Appellate Division found that the defendants met its prima facie burden by submitting the plaintiff’s own deposition testimony, which demonstrated that the plaintiff was unable to identify the location of her fall without engaging in speculation.
 

9/17/25            Berrick v. 16 Brentwood Rd., LLC
Appellate Division, Second Department 
There is no duty to protect or warn of conditions that are not inherently dangerous and open and obvious
 
The plaintiff commenced this action against the defendants, 16 Brentwood Road, LLC (“Brentwood”), and Enzo Chemical Labs, Inc. (“Enzo”), to recover damages for personal injuries the plaintiff claimed she sustained when she tripped and fell on a single step inside the premises owned by Brentwood and leased by Enzo. The defendants moved for summary judgment dismissal of the plaintiff’s complaint on the grounds that the condition was open and obvious and did not violate any applicable Building Codes. The lower court granted the motion and the plaintiff appealed.

On appeal, the Appellate Division noted that while property owners generally owe a duty of care to maintain their property in a reasonably safe condition and are liable for injuries caused by a breach of this duty, there is no duty to protect or warn of conditions that are not inherently dangerous and that are open and obvious, i.e. readily observable by the reasonable use of one’s senses. The Appellate Division found that the defendants each demonstrated that the single step, which the plaintiff had navigated without incident on two occasions prior to the date of the accident, was both open and obvious and not inherently dangerous. Further, the Appellate Division noted that the subject step was not in violation of an applicable building code. Thus, the Appellate Division affirmed the lower court ruling.

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

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
With the Bills back on the field, I have a renewed hope that this could finally be Buffalo’s year to claim the Super Bowl trophy. Much like a well-planned playbook guides a team’s success, a clear understanding of procedural options can be critical for litigation aiming to overturn or modify judgments. This month’s column analyzes two (2) recent decisions addressing distinct procedural mechanisms for post-judgment relief in New York, CPLR  § 4404(a) and § 5015(a)(1).

9/10/2025      Rendon v. White Castle Sys. Inc.
Appellate Division, Second Department
“A motion pursuant to CPLR § 4404(a) for judgment as a matter of law may be granted only where there is no rational process by which the jury could find in favor of the nonmoving party. In considering such a motion, a court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.”
 
“A party may move pursuant to CPLR § 4404(a) to set aside a verdict in the interest of justice, which "'encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering a motion to set aside a verdict in the interest of justice, a court "must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to its own common sense, experience and sense of fairness rather than to precedents in arriving at a decision.”
 
This matter arises from a trip and fall which allegedly occurred as a result of a defect in a sidewalk that was located in front of defendant White Castle. The plaintiff claimed that she sustained torn ligaments and tendons in the outside of her ankle and underwent one (1) surgery to remove scar tissue and repair the torn ligaments and tendons. She commenced an action against the defendant White Castle (tenant) and defendant Leonardo Asaro, LLC (property owner).
 
Following the liability trial, the jury determined both defendants were negligent. The defendants moved to set aside the jury verdict under CPLR § 4404(a) and for judgment as a matter of law dismissing the complaint or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence or in the interest of justice and for a new trial on the issue of liability. The Kings County Supreme Court denied the motion.
 
After the damages trial, the jury awarded the plaintiff: $600,000 for past pain and suffering; $1,800,000 for future pain and suffering; $40,000 for past medical expenses; and $200,000 for future medical expenses, with the awards of future damages intended to provide compensation for a period of thirty (30) years. The Kings County Supreme Court issued a judgment in favor of the plaintiff and against the defendants in the principal sum of $2,640,000.
 
On appeal, with regard to liability, the Second Department held the lower court properly denied the section of the defendants’ motion to set aside the liability verdict and for judgment as a matter of law dismissing the complaint. The Court explained that there was a “valid line of reasoning and permissible inferences” that could lead someone to conclude that defendant White Castle owed a duty to the plaintiff and that Asaro was negligent.
 
The Second Department further determined that the lower court should have granted the portion of the defendants motion seeking to set aside the liability verdict in the interest of justice and for a new liability trial. The Court explained that “in charging the jury, the [lower] court failed to differentiate between White Castle and Asaro, and failed to identify how their duties differed as tenant and as landowner, respectively. Thus, the court did not ‘adequately convey[ ] the sum and substance of the applicable law to be charged.’”
 
The Second Department noted that if either of the defendants was found liable on the liability issue, a new trial on the issue of damages was warranted. The Court found the jury’s awards were excessive as to past and future pain and suffering as well as past and future medical expenses.


9/10/2025     Cross v. Woodbine Caterers
Appellate Division, Second Department
A defendant seeking to vacate a judgment pursuant to CPLR § 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action. The Supreme Court has the discretion to accept law office failure as a reasonable excuse, but a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse. Where there is a pattern of default and neglect, the attorney's neglect can be imputed to the client.
 
The plaintiffs allegedly sustained injuries at a dance party during a physical altercation. The premises of the party was owned by the defendant David Oswald who owned Woodbine Caterers and 2281 Church Ave, LLC. The plaintiffs added 2281 Church Ave as a defendant and filed an amended complaint. In response the defendants served an answer to the amended complaint. The plaintiffs then filed a second amended complaint to add another defendant, Bad Dog Security, LLC. The defendants did not serve an answer to the second amended complaint. In response, the plaintiffs moved for leave to enter a default judgment which was opposed by the defendants. The Kings County Supreme Court granted the plaintiffs’ motion. The defendants moved to stay enforcement of the judgment and moved to vacate it pursuant to CPLR § 5015(a). The Kings County Supreme Court denied the defendants’ motion.
 
On appeal, the Second Department held the defendants did not establish a reasonable excuse for their default and thus, there was no need to consider whether the defendants had a “potentially meritorious defense to the action.” The Court explained that it was insufficient for the defendants to submit “conclusory, undetailed, and uncorroborated claims of law office failure. In addition, the Second Department held that the “record established a pattern of default and neglect in addition to the defendants' failure to answer the second amended complaint.”

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

Hello Readers,

Fall is officially under way, and it’s my favorite season of the year. I’m looking forward to a little bit of cooler weather, apple cider season, and, of course, the Buffalo Bills to keep rolling. So far, they have had quite the impressive start to their season, beating the Ravens in one of the best Sunday Night Football performances of all time and soundly beating divisional rivals in the Jets and Dolphins as well. I have no doubt they will be able to keep it up throughout this next month.

Go Bills!

9/10/2025         Kuznitz v. Funk
Appellate Division, Second Department
Defendant’s motion to strike the complaint or preclude plaintiff from introducing evidence on the issue of damages due to plaintiffs’ supposed noncompliance with discovery demands was denied.

Defendant filed a motion pursuant to CPLR 3126 to strike plaintiffs’ complaint on the basis that plaintiffs failed to comply with certain discovery demands and orders. The trial court denied the motion and defendant appealed to the Second Department. The Second Department emphasizes the motion court’s discretion in resolving discovery disputes. They also note that the drastic remedy of striking a pleading or providing an alternative remedy of precluding evidence requires a clear showing that the failure to comply with court-ordered discovery was “willful and contumacious.”

The Second Department held that defendants failed to produce sufficient evidence to establish that plaintiffs failed to substantially comply with discovery obligations or that their conduct met the standard of “willful and contumacious.” Defendant did not meet the burden of showing clear and convincing evidence that plaintiffs perpetrated a fraud on the Court and the Second Department and the Second Department also notes there was no evidence defendant had served plaintiff’s with notices to provide certain discovery, including a notice of physical examination.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
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Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Elizabeth K. Ognenovski
eko@hurwitzfine.com

Michael L. Lieberman
[email protected]