NOTE FROM THE EDITOR:
It’s been an exciting November at Hurwitz Fine, filled with noteworthy achievements across the firm.
We are proud to announce that Best Lawyers® has ranked Hurwitz Fine in 11 Buffalo Metropolitan Tier One practice areas for 2026, including Commercial Litigation, Insurance Law, Personal Injury Litigation – Defendants, Litigation – Health Care, Litigation – Insurance, Litigation – Municipal, Real Estate, Tax Law, Trusts & Estates, Corporate Law, and Elder Law, alongside multiple Tier Two honors across the firm and Tier Two recognition for Insurance Law in our Long Island office.
This year also marked a notable moment when Hurwitz Fine received the first-ever Pillar of Partnership Award from the New York Insurance Association (NYIA), recognizing our longstanding collaboration, thought leadership, and support of New York’s insurance community. We are honored to be the inaugural recipient of this award.
Hurwitz Fine was also listed for the third year in Chambers’ New York Regional Spotlight Guide for General Commercial Litigation, which noted the firm’s experience across a range of complex disputes in areas including healthcare, construction, toxic tort, insurance, and labor & employment.
There is much to be thankful for this Thanksgiving week at Hurwitz Fine, and we are grateful to our clients, attorneys, and partners who make these achievements possible.
Finally, in important legal news for our Premises Pointers subscribers, we highlight two developments of note. First, New York’s First Department has held that litigation-funding documents may be discoverable, a ruling that may significantly impact the defense of personal injury and premises liability cases. As explained by attorney Ryan Maxwell, in Lituma v. Liberty Coca-Cola, the court found these materials “material and necessary” where defendants alleged fraud and offered evidence that funding arrangements could reveal a financial motive for fabricating an accident. Second, New York Governor Kathy Hochul signed new legislation clarifying CPLR 2106, resolving longstanding uncertainty over when affirmations may be used in place of notarized affidavits. The amendment expressly permits affirmations for affidavits, verified pleadings, interrogatory answers, bills of particulars, responses to notices to admit, and other sworn statements, providing more consistent and predictable filing procedures in New York civil practice. Thanks to Zachary Raber for the legal alert on this topic!
And lastly, Happy Thanksgiving! Enjoy the long holiday weekend!
-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]
11/19/2025 Siltz v. Golub Corp.
New York Supreme Court, Appellate Division, Second Department
In a supermarket slip-and-fall case, a property owner is entitled to summary judgment where it shows it neither created nor had actual or constructive notice of the condition, and a cleaning contractor is likewise entitled to summary judgment absent evidence that it launched a force or instrument of harm under Espinal.
Plaintiff alleged that she slipped and fell in August 2018 on a small puddle of clear liquid on the floor of a Price Chopper supermarket. She sued the supermarket operators, Golub Corporation and related Price Chopper entities, and also sued the janitorial contractors, SOL Facility Services, SOL Enterprises, and H & R Clean, which had been retained to clean the premises. After discovery, both groups of defendants moved for summary judgment dismissing the amended complaint, and the Supreme Court granted those branches of the motions. Plaintiff appealed.
The Appellate Division affirmed. As to the Price Chopper defendants, the court held they met their prima facie burden by submitting video evidence and employee deposition testimony showing they did not create the puddle and lacked actual or constructive notice of it. The evidence demonstrated no awareness of the liquid before the fall and no indication the condition existed for a sufficient time to be discovered and remedied. Plaintiff failed to raise a triable issue of fact in response.
As to the SOL defendants, the court applied the rule that a contractual duty to provide services does not, by itself, create tort liability to third parties. The relevant exception, where the contractor launches a force or instrument of harm, was not supported by the record. SOL established prima facie entitlement to judgment by showing it did not create or exacerbate the puddle through negligent performance, and plaintiff again failed to raise a triable issue of fact.
Accordingly, the order granting summary judgment to both sets of defendants was affirmed.
11/7/2025 Kissoon v. Wal-Mart Real Est. Bus. Tr.
United State Court of Appeals for the Second Circuit
A retail defendant cannot be held liable for negligence arising from a transient spill where it had only one minute of notice and undertook multiple reasonable remedial actions during that interval; under New York law, such time is insufficient as a matter of law to constitute breach of a duty of care.
Plaintiff Dhoorpattie Kissoon slipped and fell on liquid soap in a Wal-Mart store in Valley Stream, New York. Store video showed that a child spilled the soap at 1:44:30 p.m., the child’s mother attempted to clean it at 1:46 p.m., and a Wal-Mart employee was notified at 1:48 p.m. The employee placed a towel over the spill at 1:48:33 p.m., radioed for assistance, requested a warning cone, and called for a cleaning crew. Plaintiff slipped at 1:48:54 p.m., less than one minute after Wal-Mart received actual notice of the spill.
Plaintiff argued that a jury could find the employee’s response unreasonable because she allegedly should have secured the aisle or summoned help without leaving the area. Defendant moved for summary judgment, asserting that the brief time between notice and the fall rendered any alleged breach legally unsustainable. The district court granted summary judgment, holding that Wal-Mart acted reasonably as a matter of law.
The Second Circuit affirmed. The court emphasized that New York premises liability law requires actual or constructive notice and a reasonable opportunity to remedy the condition. Courts have consistently held that two to three minutes is insufficient time to correct an ordinary spill in a retail environment. Here, with just one minute between notice and the fall, during which the employee took multiple reasonable steps, no factfinder could conclude that Wal-Mart breached its duty of care. Plaintiff’s additional argument, raised for the first time on appeal, that the towel placement worsened the hazard, was forfeited under principles of appellate review.
The judgment in favor of Wal-Mart was therefore affirmed.
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Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Patrice C.S. Melville [email protected]
Hi Readers,
Thanksgiving is the one holiday where even the most cautious among us are willing navigate a minefield of potential trip-and-slip hazards: crowded kitchens, rogue gravy spills, decorative pans lurking in blind spots, and the infamous “I’ll just squeeze past you” moments that end in a full-body collision. But, for defense attorneys, the season offers more than turkey and traditions—it offers analogies. For instance, “notice” is not a side dish accompanying every fall—it must be proven. This month’s offering is centers around notice—specifically, how a defendant can affirmatively demonstrate a lack of constructive notice, and how a storm in progress operates to toll the notice requirement altogether.
Happy Thanksgiving, Readers!
11/21/2025 Atatsi v State of New York
Appellate Division, Fourth Department
Proving When an Area Was Last Cleaned is Essential on a Motion for Summary Judgment Based on Lack of Notice
Claimant, a student at the University at Buffalo (“the University”), commenced a personal injury action seeking damages for injuries that she allegedly sustained when she slipped and fell on an accumulation of water located on an interior stairwell in her dormitory. The University moved for summary judgment dismissing the claim, and the Court of Claims denied that motion. The University appealed.
On appeal, the Appellate Division found that while the University did meet its burden of establishing a lack of actual notice, it failed to establish that it lacked constructive notice. While the University submitted evidence that it lacked actual notice, its custodial staff failed to keep records regarding when the stairwell was last cleaned or inspected and thus could not establish that it lacked constructive notice. The Appellate Division further noted that while there was testimony regarding the custodial staff’s general cleaning practices, the University failed to establish that those procedures were followed on the date of accident.
The Appellate Division also found that the University failed to meet its prima facie burden with respect to the issue of proximate cause, because though the claimant could not identify the cause of her fall, the claimant’s friend, who observed the claimant moments after the fall, testified that she observed water on the stairs that looked like melted snow and that the claimant’s pants were wet after the fall. The Appellate Division found that the claimant’s testimony that she felt a “slippery substance” under her feet, coupled with her friend’s testimony regarding her own observations, rendered any other cause of the fall too sufficiently remote, and that a factfinder could make a determination upon the logical inferences to be drawn from the evidence. Ultimately, the Appellate Division affirmed the lower court’s denial of summary judgment in favor of the University, but modified the decision to reflect that the University, though it established that it lacked actual notice, failed to meet its burden with respect to the issues of constructive notice and causation.
11/20/2025 Patterson v. 786 E. 182 LLC
Appellate Division, First Department
A Fall During a Storm Cannot Support Liability as a Matter of Law
Plaintiff, a tenant of an apartment building owned and managed by defendants, alleged that she was injured when she slipped and fell on ice on the walkway in front of her building. On the day of the accident, it had been raining and snowing before plaintiff left the building, and the building superintendent had removed sleet and snow from the area around the building entrance, placing salt on the ground near the entranceway. The superintendent testified that he was in the process of salting the sidewalk in front of the building when he learned of plaintiff's accident. The defendants moved for summary judgment dismissal of the plaintiff’s Complaint on the grounds that her accident occurred while a storm was in progress. The lower court denied the motion and the defendants appealed.
On appeal, the Appellate Division found that the defendants, by submitting climatological data and a meteorologist’s affidavit showing that there was a winter storm in progress at the time of the accident, established that the “storm-in-progress” doctrine applied. The Appellate Division found plaintiff’s deposition testimony that it was not showing at the time of her accident to be conclusory and insufficient to raise a triable issue of fact. The Appellate Division unanimously revered the lower court’s decision.
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Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates
Hello Readers,
As we head into the holiday week, I wanted to thank you all for your continued subscription and support. This month we have two (2) recent New York Appellate Court decisions: the first case involves evidence submitted in support of a motion in admissible form; and the second case discusses CPLR § 305.
I wish you all a very happy Thanksgiving!
11/21/2025 Garner v. Benchmark Abbott Rd. Plaza Assoc., LLC
Appellate Division, Fourth Department
A moving party can meet its initial burden to establish a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact with deposition testimony when other evidence is not submitted in admissible form.
The plaintiff commenced an action after she allegedly slipped and fell on a “watery substance” on the floor of a grocery store owned and operated by the defendant KDJB Foods Inc., doing business as Lackawanna Save-A-Lot. The defendant Benchmark Abbott Road Plaza Associates owned the property and leased it to KDJB. The defendant Benchmark moved for summary judgment to dismiss the complaint and cross-claims against it. The Erie County Supreme Court granted the defendant Benchmark’s motion seeking summary judgment dismissing the cross-claims against it.
On appeal, defendant KDJB argued that the lease and two (2) sets of repair records which were submitted in support of Benchmark’s motion were not properly authenticated. The Fourth Department agreed that the records were not properly authenticated and did not meet the requirements for self-authentication pursuant to CPLR § 4540-a “because they were not produced by KDJB during discovery.”
However, despite the unauthenticated records, the court held that Benchmark met its initial burden that it was not responsible for the dangerous condition that allegedly caused the plaintiff's injuries. The Fourth Department explained that Benchmark submitted the plaintiff’s testimony that the water she fell on came from the cooler in the dairy section of the store. Additionally, a Benchmark representative as well as a representative from KDJB testified that Benchmark was an out-of-possession landlord and not responsible for the conditions inside the store. In opposition, defendant KDJB was unable to submit evidence to raise a triable issue of fact.
11/13/2025 Henry v. Tao Group LLC
Appellate Division, First Department
“Although CPLR § 305(c) may be utilized to correct the name of an existing defendant, it cannot be used to add or substitute a party defendant nor can it be utilized where the court never acquired jurisdiction over that party to begin with.”
The plaintiff allegedly fell and was injured at Tao Restaurant in December 2017. The plaintiffs filed a motion to: substitute BD Stanhope LLC as a party defendant in place of Tao Group LLC; vacate the default judgment that the plaintiff secured against the named defendant; and that BD Stanhope LLC should be afforded a fixed period of time to appear in the action or move against the complaint. The New York County Supreme Court denied the plaintiff’s motion. On appeal, the First Department affirmed.
The First Department held the lower court properly denied the plaintiffs’ motion to amend the summons and complaint to replace defendant Tao with BD Stanhope LLC because the statute of limitations on the plaintiffs' claim had expired and BD Stanhope was never properly served. The Court explained:
Plaintiffs' failure to name BD Stanhope was not a mere mistake in defendant's name. Rather, plaintiffs served the summons and complaint on defendant only via the New York State Secretary of State (CPLR § 311-a [a]; Limited Liability Company Law § 303 [a] [1]), and plaintiffs do not dispute BD Stanhope's representation that it, the entity that should have been named as the defendant in this action, has nothing to do with defendant.
The Court concluded that “plaintiffs' failure to properly serve BD Stanhope ‘was a nonwaivable jurisdictional defect that plaintiff[s] could not fix by amendment under CPLR § 305 (c) after the statute of limitations had expired.’” The remaining arguments “concerning whether BD Stanhope would be prejudiced by granting the amendment [were] academic.”
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Michael L. Lieberman [email protected]
Hello Readers,
I hope you’re all as happy with the holiday season starting as I am. November was another mixed month for us Bills fans. We may have had some lows with a couple tough-to-watch losses, but the team has had some great highs as well this month with strong wins over the Kansas City Chiefs and Tampa Bay Buccaneers. Here’s to a great holiday season for all of our readers and a successful December for the Buffalo Bills!
Go Bills!
11/6/2025 Taveras v. Tuck-It-Away Associate, L.P.
Appellate Division, First Department
Defendant was Permitted to Amend its Answer to Include Affirmative Defenses Sounding in Fraud Six Months After Plaintiff was Deposed
Plaintiff alleged that she suffered from a trip and fall at Columbia University. The Supreme Court allowed Columbia to amend its answer to assert affirmative defenses sounding in fraud six months after the plaintiff was deposed as permitted by CPLR 3025(b). In upholding the trial court’s decision, the court noted that the defendant demonstrated that the proffered amendments were not palpably insufficient or clearly devoid of merit.
The plaintiff had testified earlier that she was close to her daughter and spoke to her at least once a week. However, plaintiff also testified that that she was unaware that same daughter had a trip and fall accident just 20 days before plaintiff’s alleged accident. Plaintiff’s daughter was represented by the same law firm as plaintiff. Additionally, plaintiff alleged she was required a fusion surgery yet her records demonstrate that she initially denied neck pain and when she eventually received a fusion surgery from a spinal surgeon accused of performing unnecessary fusion operations for profit. The court found this evidence demonstrated that plaintiff “willfully engaged in deceitful and obstructionist conduct designed to undermine the integrity of th[e] proceeding by attempting to provide false and misleading testimony regarding her alleged injuries and how she sustained them.
11/19/2025 LaRose v. City of New York
Appellate Division, Second Department
Second Department upholds dismissal of a case as a consequence of spoliation of evidence
In this surprisingly old case, the plaintiff sought damages for injuries sustained while riding her bike and hitting a pothole in March of 1998. The plaintiff’s friend took photographs of the accident location on the day after the accident and in August 2001, the trial court ordered the plaintiff provide the defendants with said photograph. As a result of a bankruptcy filing, the case was delayed until 2015 when the trial court ordered all parties comply with outstanding directives in 2015. In response to a Notice to Admit, the plaintiff admitted that she was not in possession of the photographs. Defendants moved to dismiss the case for spoliation of evidence and the trial court granted the motion.
The Second Department affirmed the trial court’s decision. While noting that striking a pleading is a drastic sanction that, absent willful conduct, the court must consider the prejudice that resulted from the spoliation. The Second Department found that, given the age of the case and that all defendants had allegedly performed some work around the area where the plaintiff was injured, the post-accident photographs were a crucial piece of evidence for Defendants to present a defense.
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