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NOTE FROM THE EDITOR:
We’re excited to share that Hurwitz Fine continues to grow! Eight new attorneys have joined our General Litigation team, bringing extensive experience defending clients in premises liability, medical malpractice, toxic tort, construction, and general negligence matters across New York State.
With new team members in Buffalo, Rochester, and Long Island, this expansion strengthens our statewide presence and deepens our bench across multiple practice areas. Please join me in welcoming:
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Nicole D. Schreib joins Hurwitz Fine’s Buffalo office as special counsel with over 25 years of civil litigation experience, focusing on medical malpractice, long-term care, premises liability, and general negligence matters.
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Jessica L. Deren joins the Buffalo office as an associate with more than 15 years of litigation experience defending New York State Labor Law, construction, and general negligence claims.
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Brigette R. Whitmore joins as a Buffalo-based associate with over 20 years of experience in insurance defense and personal injury litigation involving motor vehicle accidents and premises liability.
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Marten R. Violante joins the Buffalo office as an associate, bringing experience defending high-exposure tort cases involving Labor Law, premises liability, and automobile liability.
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Jordan Beal has joined the firm’s Rochester office as an associate focusing on automobile liability, toxic tort, asbestos exposure, and product liability defense.
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Dana M. Aprigliano joins the firm’s Melville office as an associate defending motor vehicle, construction, negligent security, and general negligence claims.
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Zachary J. Raber has joined the firm as an associate pending admission in Buffalo focusing on premises liability, asbestos exposure, and toxic tort matters. He is also a guest columnist this month!
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James J. Crowley has joined the firm as an associate pending admission in Rochester focusing his practice on premises liability, medical malpractice, and motor vehicle defense.
Learn more about our newest attorneys and their impressive backgrounds here.
Happy Halloween!
-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 Around New York State and Beyond
By: Jody E. Briandi [email protected] and Zachary J. Raber [email protected]
9/23/2025 Peters v. Whole Foods Mkt. Grp., Inc.
United States District Court, Southern District of New York
Summary judgment denied where surveillance video raised triable issues of fact as to constructive notice and adequacy of inspection
Plaintiff Florence Peters slipped and fell near the hot food bar inside a Whole Foods store in Manhattan on August 29, 2022. Whole Foods moved for summary judgment, arguing there was no evidence it had actual or constructive notice of a wet or slippery condition and that its inspection logs showed the area was checked shortly before the incident.
The Court denied the motion, finding that the store’s surveillance video created genuine issues of material fact. The footage allegedly showed another customer slipping in the same area approximately 13 minutes before Peters’ fall and a Whole Foods employee working nearby who bent down to pick up a spoon from the floor. The Court held that a reasonable jury could infer the condition existed long enough for Whole Foods to have discovered and remedied it, and that the proximity of employees supported an inference of constructive notice.
The Court also found factual disputes as to whether Whole Foods actually conducted a timely and reasonable inspection, noting inconsistencies between the store’s sweep log and the surveillance video. Because these issues must be resolved by a jury, summary judgment was denied.
9/26/2025 Mahoney v. Whole Foods Mkt. Grp., Inc.
United States District Court, Eastern District of New York
Negligence claim dismissed in full: prior ruling disposed of notice; plaintiff failed to raise a triable issue that Whole Foods created the hazard.
On July 21, 2019, Deborah Mahoney allegedly slipped and fell near the seafood counter while shopping at a Whole Foods in Albany, New York. She testified that she had been standing on a rug in front of the counter for several minutes without noticing any moisture before taking one step off the rug and falling. Mahoney did not see any water on the floor before her fall, nor could she identify its source or how long it had been present. After falling, she noticed a “pretty big” puddle of clear water and that her clothes were wet, but she did not see any footprints, cart tracks, or dripping from the seafood display.
Whole Foods’ Assistant Team Leader testified that the seafood cases were designed with drains underneath to prevent water from leaking onto the sales floor, and he was unaware of any prior leaks or similar incidents in that area. When he arrived at the scene, he observed the floor to be “spotless,” with no visible water or debris, and completed a Customer Incident Report. Surveillance footage confirmed the brief time Mahoney spent at the counter and did not show any indication of a spill or defect.
After removal to EDNY, Whole Foods moved for summary judgment. The court held that Mahoney failed to present evidence that Whole Foods created the hazardous condition. To survive summary judgment, a plaintiff must show an affirmative act by the defendant that caused the condition; speculation is insufficient. Here, the mere presence of ice-filled seafood displays was not enough to establish creation. The record contained no evidence of leaks, employee tracking, or other affirmative conduct by Whole Foods that led to the alleged puddle. Accordingly, the court granted summary judgment in favor of Whole Foods on all claims.
9/26/2025 Almodovar v. Wal-Mart Stores E., LP
United States District Court, Southern District of New York
Wal-Mart’s motion for summary judgment was granted where plaintiff offered no evidence of creation, actual notice, or constructive notice of a water condition.
On September 26, 2021, Jarline Almodovar slipped and fell near the back of a Middletown, New York Wal-Mart, by the self-service water-jug filling station and adjacent dishwashing-supplies area. Almodovar and her husband had been shopping for about 15 minutes without incident. Neither saw any water on the floor before the fall, neither knew its source, and neither knew how long it had been present. After the fall, both observed clear water with no footprints or cart tracks. The husband briefly speculated the water “came from” the jug station but immediately testified he did not know how it got there. The Court held there was no evidence that Wal-Mart created the condition, noting that the passive operation of a self-service area was insufficient to constitute an affirmative act. There was also no evidence of actual notice because no prior observations or complaints had been made. The Court further found no constructive notice since the condition was not shown to be visible or apparent beforehand, and there was no evidence of duration; the clear water lacked tracks or marks, and puddle size alone was not probative of time. Plaintiff’s failure-to-inspect theory also failed because she identified no inspection policy breaches and, absent proof of visibility or duration, could not show that a reasonable inspection would have revealed the condition.
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Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
With winter approaching, I’ve decided to continue reporting on cases that focus on defending suits involving accidents related to snow and ice. In August 2025, we discussed when the storm-in-progress doctrine is a viable defense strategy. This edition, we are taking a look at a case that deals with one of the three exceptions outlined in the Espinal Doctrine.
10/10/2025 Gordon v. SEB Dev., LLC. et al
Appellate Division, Fourth Department
In order to successfully dismiss a case on the grounds that none of the exceptions to the Espinal Doctrine apply, a defendant must demonstrate that the contracting party entirely displaced the other party’s duty to maintain the premises in a safe condition.
Plaintiff filed this action seeking damages for injuries sustained when she slipped and fell on ice, while walking into work. The loss location was owed by SEB Development, LLC (hereinafter “SEB”), and entered into a verbal agreement with Cozzwill to perform, in part, snow and ice removal services.
Defendant Cozzwill filed summary judgment, which was granted; SEB and plaintiff appealed.
SEB and plaintiff rely, only, on the third exception of the Espinal Doctrine, as a basis for Cozzwill’s liability. The third exception provides that liability is created where the contracting party entirely displaces the other party’s duty to maintain the premises in a safe condition.
The Fourth Department held that Cozzwill failed to meet its initial burden. However, even assuming that Cozzwill did meet its burden, a question of fact remained as to whether Cozzwill entirely displaced SEB’s duty to maintain the premises in a safe condition. Notably, the inspection of the property and direction to undertake snow removal efforts and repairs of the property were made by a person who was a co-owner of SEB and the sole owner of Cozzwill. It is the trier of fact’s responsibility to determine on whose behalf the person was acting when he engaged in those activities.
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Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates
Hello Readers,
It is hard to believe there are only two months left in 2025! As we move into the final stretch of the year, my October column examines two recent cases, one that deals with res ipsa loquitur and the other that attempts to argue an intervening and superseding cause defense.
10/16/2025 Rivera v. ShopRite of Bruckner Blvd.
Appellate Division, First Department
A plaintiff was not entitled to invoke the doctrine of res ipsa loquitur when a cart involved in the plaintiff’s accident was not in the defendant’s control as there was evidence the plaintiff was using the cart immediately before the accident and the carts were generally made available to customers.
The plaintiff was injured while he was allegedly shopping at the defendant StopRite’s store. The plaintiff was pulling a shopping cart from the front when it fell to the side causing him to try and catch the cart. Per the plaintiff’s testimony, the bottom of the cart’s frame was broken. He claimed that this defect “caused the cart’s frame to break suddenly under the pressure of a normal load.” The defendant moved for summary judgment to dismiss the complaint and argued that it did not have actual or constructive notice of the alleged defect. The Bronx County Supreme Court denied the motion.
On appeal, the First Department unanimously reversed. The Court held the defendant established that it did not have actual or constructive notice of the alleged defect. In support of the defendant’s position, the defendant’s store manager testified that during his usual inspection, he did not discover any defects or issues with the carts. The manager had never seen or heard of any similar accidents. In addition, the plaintiff testified that he did not have any issues with the cart as he used it for approximately twenty (20) minutes before his incident occurred. The plaintiff did not raise a triable issue of fact and failed to demonstrate he was entitled to invoke the res ipsa loquitur doctrine
10/1/2025 McMillian v. Crest Hollow Country Club at Woodbury, Inc.
Appellate Division, Second Department
“An injured party's own reckless and extraordinary conduct can constitute an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants . . . Whether a plaintiff's act is a superseding cause or whether it is a normal consequence of the situation created by a defendant are typically questions to be determined by the trier of fact.”
The plaintiff was allegedly injured during a wedding reception at the defendant Crest Hollow Country Club’s event space. The plaintiff sat down at a seat located at her assigned table and noticed that her chair was unsteady. She complained about the chair to one of the waiters and requested a new chair. She then left her table to use the restroom and socialize. When she returned, she sat back down in the same chair and it broke. The defendant cross moved for summary judgment and argued in part that the plaintiff was the superseding cause of her injuries. The Nassau County Supreme Court denied the defendant’s motion for summary judgment to dismiss the complaint.
On appeal, the Second Department held that the lower court properly denied the branch of the defendant’s cross-motion for summary judgment to dismiss the complaint. The Court explained that “to sever the causal connection between a defendant's conduct and the plaintiff's injuries, a superseding act must be 'extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.’” The Second Department determined that the defendant failed to make a prima facie showing that the plaintiff's conduct was an unforeseeable superseding event absolving the defendant of liability.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Michael L. Lieberman [email protected]
Hello Readers,
I hope you’ve all had a fantastic fall and a perfectly spooky end to your October. The Bills may not have had the perfect month as expected, but it seems like they are back on the right track. After faltering two weeks in a row, they came back after a bye week strong to an astounding 40-9 win over the Panthers. Hopefully, they can use November to keep going strong and start building momentum.
Go Bills!
10/2/2025 Bodenchak v. 5178 Holdings LLC
Appellate Division, First Department
NYSEF System error provided respondents with a reasonable excuse to avoid granting of default judgment motion
Petitioner made a motion for default judgment after having been substituted in for the original petitioner, her late husband. Respondents argued that petitioner’s motion for default judgment was void ab initio because the death of a party stays a proceeding until proper substitution is made. However, the Court found that proper substitution was made by the time default was filed for.
The Court noted that, pursuant to CPLR 1022, if a respondent’s time for taking a procedural step has not expired at the time of a substitution, it is extended until fifteen (15) days after the substitution. In this case, respondents’ time to answer the particular petition was subject to such an extension, yet respondents did not respond to the petition in time.
The First Department held, however, that the trial court properly used its discretion in denying petitioner’s motion for default judgment. They found that respondents had a reasonable excuse for failing to respond to the petition. The New York State Electronic Filing System indicated that the proceeding was stayed, despite the substitution being properly made. The court found that because there is strong public policy favoring resolution of cases on their merits, the trial court did not improvidently exercise its discretion by denying the motions for summary judgment.
10/8/2025 Cordell v. City of New York
Appellate Division, Second Department
Trial Court properly precluded Plaintiff’s expert testimony and requested jury instructions while admission of Google Map images that Defendant did not give proper notice was proper.
At issue in this case was the condition of a sidewalk in Brooklyn that allegedly caused plaintiff’s slip and fall in 2016. Plaintiff alleged that the City created the dangerous condition when it repaired the sidewalk in 2014, but the jury disagreed. Plaintiff appealed the trial court’s decision to precluded plaintiff’s expert testimony on whether the condition was dangerous and plaintiff’s requested jury instructions on the City’s violations of certain rules and standards in their repair of the sidewalk.
The Second Department held that the preclusions were proper. The expert was allowed to testify as to whether the city created the condition, but precluded testimony as to the condition’s dangerousness and whether any rules or standards was violated. The Court held that the jury did not need expert testimony to determine whether the condition was dangerous. Additionally, plaintiff never alleged in her Bill of Particulars that any rules or standard were violated, so the testimony on that subject and the requested jury instructions were properly precluded as well.
Also at issue was the trial court’s decision to admit Google Map images that the city did not provide the required thirty (30) days notice of. The Second Department held that if there was an error in the admission it was harmless. The Court noted that the city had properly noticed other, related Google Map images that plaintiff never objected to. Under the circumstances, the admission of the Google Map images improperly noticed was harmless.
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