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NOTE FROM THE EDITOR:
Happy Holidays!
We have two important legal updates for our readers this month, and an upcoming premises liability webinar we are excited to invite our insurance carriers, self-insureds, and retail organization subscribers to.
First, New York Governor Hochul has signed Chapter 704 of the Laws of 2025, dramatically shortening the time to commence third-party actions in New York—marking the most significant change to impleader practice in decades and taking effect in 120 days. Contractual indemnification claims must now be filed within 60 days of serving an answer or learning of potential liability, with even shorter deadlines for successive third-party actions and a complete bar once a Note of Issue is filed (excluding “grave injury” claims). These changes will significantly impact premises and Labor Law risk transfer strategy, leaving little to no time to negotiate defense and indemnity positions with additional insureds and excess carriers.
At Hurwitz Fine, our Labor Law, Premises Liability, and Insurance Coverage teams regularly advise and defend owners, contractors, and insurers on risk transfer strategy, indemnification, and additional insured issues arising from New York Labor Law and premises claims. Our attorneys are closely monitoring the impact of Chapter 704 on both existing and future cases, and are prepared to help clients adapt their litigation and claims-handling strategies to these accelerated impleader deadlines.
For questions regarding how these changes may affect your cases, please contact:
Second, New York Governor Kathy Hochul has vetoed the Grieving Families Act for the fourth consecutive year. The passing of this legislation would have completely overhauled wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality. In her veto memo, Governor Hochul offered support for the cause, but again cited concerns over costs, economic uncertainty, and unintended consequences to New York consumers needing health care.
I am also excited to announce that we will be producing a monthly litigation defense webinar education series for our readers! We are kicking off the series on Wednesday, January 28th at 12pm with “Navigating Claims, Crime, and Consequences in Retail” featuring our Retail & Hospitality Liability Team, Anastasia M. McCarthy, and Elizabeth K. Ognenovski. This presentation will explore the evolving risks and legal exposures impacting the retail industry, including incidents involving intentional or reckless violence, claims against asset protection personnel, and liability issues arising from the sale of firearms.
Attendees will gain practical guidance on evaluating and managing these complex claims, recognizing emerging trends, and mitigating risk in an increasingly challenging retail environment. For more information and to register, click here.
Lastly, we welcome our newest writers to Premises Pointers: Max Radley, covering "Labor and Employment Issues for Schools and Retailers" and Bradon Carlson, covering "School District and Municipal Liability."
Wishing you a Happy New Year!
-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 in the 2nd Circuit and Beyond
By: Jody E. Briandi [email protected] and Zachary J. Raber [email protected]
When retail and hospitality cases are removed to federal court on diversity grounds, remaining in federal court is not guaranteed. In the decisions summarized below, the courts either remanded the actions or dismissed them after finding that complete diversity or another basis for federal subject‑matter jurisdiction was lacking.
12/5/2025 Candelaria v. ServPro Com. LLC
United States District Court, Southern District of New York
By letter motion the case was remanded to New York State Court when diversity jurisdiction was destroyed following the addition of a New York State defendant to the lawsuit.
On September 8, 2021, plaintiff Noelia Bernardina Candelaria slipped and fell at her workplace due to a wet, slippery floor condition. She filed suit against the owner of the premises. The case was removed to Federal Court based on diversity. Thereafter, the plaintiff amended her complaint three times. She sued the complaint that alleged performed the maintenance work in the building. That company was a New York State corporation with a principal place of business in Connecticut making it a citizen of both New York and Connective for diversity purposes. Since no defendant argued fraudulent joinder, it was agreed the case would be remanded.
11/10/2025 Webley v. Maxx
United States District Court, Northern District of New York
Complaint was dismissed due to failure to allege a federal question necessary to establish federal jurisdiction.
Plaintiff filed a civil complaint alleging unlawful detention with his wife while shopping at TJ Maxx in Hudson, New York. Plaintiff claimed to have been physically attacked and subjected to slurs, possibly by a store employee's mother. Plaintiff filed a motion to proceed in forma pauperis, which was granted, and filed a complaint in federal court. However, the complaint alleged only state law claims consisting of negligence, false imprisonment and defamation without identifying any federal statutory or constitutional rights violations. Therefore, the court lacked federal question jurisdiction. Since Plaintiff and Defendants are residents of New York, the court also lacked diversity jurisdiction. In conclusion, where the court determined it lacked both federal question and diversity jurisdiction over pro se plaintiff's claims of unlawful detention and assault at a retail store, dismissal was mandatory, but the court granted leave to amend to properly assert a basis for federal jurisdiction
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
Hope everyone had a happy and healthy holiday, took time to relax, and enjoy time with their family. The new year is around the corner; do you have your resolutions set for 2026?
2025 was a relatively busy year for me; I didn’t get to do the things I enjoy as much as I would have liked. No matter what your schedule is, please remember to make time for yourself, and the things you enjoy. You have to take care of yourself before you can help others. My resolution for 2026 is to get back to doing the things I enjoy so I can be my best self to help those around me.
December 17, 2025 Walker v Jonis Holdings II, LLC, et al
Appellate Division, Second Department
The Appellate Division, Second Department, reversed the Trial Court’s decision and denied Defendants’ and Third-Party Defendants’ respective motions for summary judgment.
Plaintiff was allegedly injured when she slipped and fell on ice in a stairway located on a property owned by Defendants. Defendants in turn filed suit against Third-Party Defendants, Millamar Landscape Services and Millamar Construction Corp., who were hired by Defendants to perform snow and ice removal services at the loss location.
At the conclusion of discovery, Defendants and Third-Party Defendants filed motions for summary judgment asserting that the “storm-in-progress” doctrine precludes liability. The Appellate Division held that although the storm-in-progress doctrine would preclude liability for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time passed, Plaintiff alleged that she fell due to ice that previously accumulated on the subject property that Defendants failed to remedy.
Thus, the Defendants and Third-Party Defendants failed to meet their initial burden, as the movants, and their motions should have been denied.
12/7/2025 Garcia v. 844 Knickerbocker, LLC
Supreme Court of New York, Appellate Division, Second Department
Defendant property owner’s motion for summary judgment was denied where evidence raised triable issues of fact as to whether uneven exterior steps were a proximate cause of plaintiff’s fall.
Plaintiff Anibal Garcia was allegedly injured while descending the exterior steps of a building owned by defendant Sanjaya Mallick. Plaintiff commenced a personal injury action alleging, among other things, that the steps were defectively maintained due to uneven risers and treads and the absence of a handrail. Following discovery, defendants moved for summary judgment, arguing that plaintiff could not identify the cause of his fall without speculation and that a handrail was not required. The Supreme Court denied the motion, and the Appellate Division affirmed.
The Court held that defendant failed to establish prima facie entitlement to judgment as a matter of law. Although defendants argued that plaintiff could not identify the cause of the accident, plaintiff testified at deposition that he lost his footing because “the level was off” and that the steps felt uneven. Plaintiff further testified that he experienced difficulty ascending the steps prior to the fall due to their uneven nature. In addition, defendants’ own expert acknowledged the presence of several steps with uneven risers and treads. Based on this evidence, the Court found triable issues of fact as to proximate cause, thus determining that summary judgment was properly denied.
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Slips, Trips, and Legal Shifts: The Latest Retail, Restaurant and Hospitality Updates in New York State
By: Elizabeth K. Ognenovski [email protected]
Hello Readers,
I hope you all had a restful and joyful holiday season! This month I analyze two (2) new decisions involving a defendant’s burden in establishing: (1) a lack of constructive notice; and (2) whether a condition is an inherently dangerous condition, and Zach Raber provides our third case. I wish you all a very happy and healthy New Year!
12/18/2025 Green v. Whole Foods Market Group, Inc. et al.
Appellate Division, First Department
In the absence of admissible evidence that defendants inspected and cleaned the bathroom prior to plaintiff's accident, the fact that plaintiff did not notice the clear liquid substance on the floor before she fell does not conclusively establish that defendants had no notice of the condition.
The plaintiff commenced an action after she allegedly slipped and fell on a “clear liquid substance” in a bathroom at the defendant Whole Foods. At her deposition, the plaintiff testified that when she got up after the fall, her pants and hands were wet and that the bathroom was not clean when she entered. The plaintiff submitted photographs which corresponded with her testimony that the trash can was overflowing and there was tissue on the floor around it. The defendants moved for summary judgment to dismiss the complaint and the lower court granted the motion.
On appeal, the First Department unanimously reversed on the law and denied the motion. The Court held that the defendants failed to establish their prima facie burden that they did not have constructive notice of the alleged dangerous condition. The First Department explained that the inspection logs for the date of the incident demonstrated that the bathroom was not inspected between 9:12 pm and 11:00 pm. The plaintiff fell at approximately 10:30 pm. Despite the defendants’ store supervisor testifying that the bathrooms were inspected and cleaned hourly, she could not recall whether she worked on the date of the incident and could not authenticate the inspection logs.
12/24/25 Rhee v. Apple, Inc.
Appellate Division, Second Department
A defendant moving for summary judgment in a trip-and-fall case generally has the initial burden of establishing, prima facie, that it neither created nor had actual or constructive notice of the alleged hazardous condition for a sufficient length of time to discover and remedy it. A defendant may also demonstrate its entitlement to summary judgment by establishing that the condition which caused the plaintiff's injury was both open and obvious and, as a matter of law, was not inherently dangerous.
The plaintiff sustained injuries after she allegedly tripped and fell on a sidewalk. The property adjacent to the sidewalk was owned by the defendant Redbridge Bedford, LLC which was incorrectly sued herein as 247 Bedford Associates, LLC, and Redsky Management, LLC, and leased to the defendant Apple, Inc. At her deposition, the plaintiff’s testimony was that she was walking on the sidewalk and observed stacks of cardboard boxes that were against the defendants' property. Some of the boxes covered the sidewalk as they were collapsed and had toppled over. There were also bags of garbage and recycling left around in the area including in front of the boxes. The plaintiff testified that she was “unable to go around the cardboard boxes on the sidewalk because of the garbage and recycling bags, cars parked ‘front to back,’ with no gap at the curb, and an adjacent tree bed that she was not comfortable walking into.” The plaintiff tried to walk over the cardboard boxes on the sidewalk when her foot became caught on the corner of a box causing her to trip and fall.
The defendants moved for summary judgment to dismiss the complaint and argued that they owed no duty to protect the plaintiff against an open and obvious condition that was not inherently dangerous. The Kings County Supreme Court denied the defendants’ motion.
On appeal, the Second Department affirmed. The Court held that the defendants failed to establish that the alleged condition was not an inherently dangerous tripping hazard or “that it could not fairly be attributed to any negligence or negligent maintenance on the defendants' part.” The evidence established that the plaintiff was unable to safely avoid the collapsed stack of boxes which covered the sidewalk. In addition, The Second Department determined that Apple failed to submit any evidence regarding its garbage disposal on the day of the plaintiff’s incident or any “evidence of a custom and practice establishing a strict routine from which a lack of negligence could be inferred.” The Court further held that “the defendants failed to establish that Redbridge satisfied its obligation under the Administrative Code of the City of New York § 7-210 to maintain the sidewalk in a reasonably safe condition, as the defendants submitted no evidence as to when the sidewalk was last cleaned or inspected.”
12/24/2025 Shepherd v. Gallo Restaurant of Patchogue, LLC, et al.
Supreme Court of New York, Appellate Division, Second Department
Defendant restaurant’s motion for summary judgment was denied as to the Dram Shop Act claim but granted as to negligence claims where the alleged assault occurred outside the defendants’ control.
Plaintiff Kyle Shepherd was allegedly assaulted by unidentified individuals on a public sidewalk outside a restaurant owned by defendant Gallo Restaurant of Patchogue, LLC. Defendant American Protection Bureau, Inc. provided security serves to the restaurant pursuant to a written contract. Plaintiff asserted claims for negligence and violations of the Dram Shop Act against Gallo and American. Gallo asserted a cross-claim for contractual indemnification against American.
Following discovery, Gallo moved for summary judgment dismissing the complaint or, alternatively, on its cross-claim for contractual indemnification, and American moved for summary judgment dismissing the complaint and cross-claims. The Supreme Court denied summary judgment on the Dram Shop Act claim against Gallo but dismissed the negligence claims against both Gallo and American. On appeal and cross-appeal, the Appellate Division affirmed.
The Court held that Gallo failed to establish prima facie entitlement to summary judgment on the Dram Shop Act claim, as it did not demonstrate that it did not serve alcohol to a visibly intoxicated individual or that any such service lacked a reasonable connection to plaintiff’s injuries. However, the Court found that Gallo established entitlement to summary judgment dismissing the negligence claim, as the alleged assault occurred on a public sidewalk outside Gallo’s control, and therefore Gallo owed no duty to supervise or control the individuals involved. The Court further held that American owed no duty to plaintiff, as plaintiff was not an intended third-party beneficiary of American’s security contract with Gallo, and any alleged contractual breach could not support a negligence claim. American’s failure to perform its obligations pursuant to the contract gave rise only to an action alleging breach of contract.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Michael L. Lieberman [email protected]
Hello Readers,
Happy Holidays! I hope all of your holiday seasons are full of joy and passing by with as little stress as possible. Of course, no month of the football season can pass by with no stress for Bills fans. While there have been some close games, I’m happy to report to you readers that the Bills have had a successful December, with wins over the Bengals, the Patriots, and the Browns. With this month of wins they have officially punched their ticket into the playoffs.
I’m wishing for a prosperous New Year to all of our readers, and a deep playoff run for the Buffalo Bills!
Go Bills!
Mike
December 4, 2025 Solomon v. 360 East 72D Street Owners Inc.
Appellate Division, First Department
Plaintiff’s Supreme Court Action was properly dismissed under the doctrine of collateral estoppel after Plaintiff tried to ignore Civil Court ruling
Defendants filed for summary judgment in this Supreme Court action on the grounds that the claim was prohibited by the doctrine of collateral estoppel. The doctrine of collateral estoppel is codified in New York State in CPLR 3211(a)(4). This Rule states that when “there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires.” In this case, the Supreme Court found that Plaintiffs’ complaint contained the same causes of action as were dismissed with prejudice in a Civil Court action that was pending at the time and dismissed the complaint pursuant to CPLR 3211(a)(4).
Plaintiffs argued for a reversal of this dismissal, arguing that the allegations asserted in the Supreme Court complaint differed from those in the Civil Court action. Additionally, they noted that the damages associated with the Civil Court action had increased and Defendants’ conduct had continued after the Supreme Court was filed. The First Department did not agree with Plaintiffs’ differentiation of the two actions. They held that the Supreme Court complaint “essentially reiterates the dismissed claims, merely adding conclusory allegations.” The Court stated the record made clear that Plaintiffs had attempted to engage in claim splitting by filing a duplicative Supreme Court action. The First Department decided that Plaintiffs’ Supreme Court action lacked a reasonable basis and was frivolous, upholding the imposition of sanctions on Plaintiffs in the form of Defendants’ attorneys’ fees and costs associated with the dismissed Supreme Court action.
December 18, 2025 SF Consultants, LLC v. 28 West Group Corp et al.
Appellate Division, First Department
Trial Court’s Denial of Motion to Extend Deadline for Filing Note of Issue is Reversed as the Trial Court Improvidently Exercised its Discretion.
Plaintiff moved for an extension of 90 days to a deadline for filing of the Note of Issue in this case due to difficulty obtaining discovery and, in particular, relevant bank records. The trial court denied plaintiff’s motion to extend the deadline, ruling that plaintiff failed to demonstrate good cause for the extension. Plaintiff’s appealed this decision to the First Department.
The First Department reversed the trial court’s ruling. They stated that Plaintiff did in fact demonstrate good cause for an extension of time, namely they had a reasonable excuse for their delay in providing disclosure of bank records, as access to bank records had been locked because of an unrelated fraud. The First Department also noted that Plaintiff made good faith efforts to resolve discovery disputes. There was no wilfulness in missing deadlines, but rather the parties faced legitimate difficulties. The Court found that defendants were not prejudiced by the extension of time, and noted that defendants had not opposed plaintiff’s original motion for the extension of time, nor did they oppose plaintiff’s appeal. In fact, defendants expressed their preference for an extension of time as well. The First Department criticized the denial of plaintiff’s motion stating it “left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure.”
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Employment Desk: Labor and Employment Issues for Schools and Retailers
By: Maxwell C. Radley [email protected]
Two Employers, One Hybrid Worker: Who is Liable When Things Go Wrong?
Managing employees is hard work, especially in today's remote work and hybrid employment models. One of the unexpected challenge employers now face is the use of remote work as a form of disability accommodation.
Recently, the Federal District Court for the Eastern District of New York helped illustrate this point. In Johnson v EAC Network, the plaintiff commenced an action against her former employers: EAC Network and NYS Unified Court System, Office of Court Administration (“OCA”). Ms. Johnson alleged that she was hired by EAC, and through her work with EAC was a case manager for the Brooklyn Screening and Treatment Enhancement Court within the Kings County Criminal Court, as a part of OCA.
After working with EAC for a period of time, Ms. Johnson made a reasonable accommodation request to EAC to work remotely two days per week. Ultimately, the parties agreed she could work from home for one and half days a week.
After a short period of time, Ms. Johnson was reportedly doing well with her accommodation. Two months after her start of her accommodations, however, three co-workers started to treat Ms. Johnson in a "harass[ing] and hostil[e]" manner. This conduct included yelling at Ms. Johnson, accusing her of misconduct, mocking her conduct at work, and publicly ridiculing her to the point to which Ms. Johnson left the office in tears.
Ms. Johnson alleged that she submitted numerous verbal reports and eight written reports to her supervisors (at both EAC and OCA) complaining about the harassment from her co-workers. Despite her complaints to her supervisors, no corrective action was taken. However, it was finally disclosed to Ms. Johnson that her supervisors felt that her co-workers were treating her that way because they were unhappy that her remote work arrangement was special treatment. Instead of reprimanding the offending co-workers, Ms. Johnson's supervisor suggested she find new employment or take a leave of absence.
In response to these allegations, OCA moved to dismiss the complaint. The basis for OCA’s motion was that Ms. Johnson was not its employee because it did not hire her. Instead, OCA argued that Ms. Johnson was employed exclusively by EAC. After the motion was fully briefed, the Eastern District magistrate judge found that an employer-employee relationship existed between Ms. Johnson and OCA because OCA controlled Ms. Johnson's work and paid or otherwise compensated her. It did not matter that OCA was not responsible for hiring her.
Johnson is a warning to employers that they must be mindful of how work-from-home accommodations are implemented and navigated in the workplace. Harassing conduct, whether by co-workers or supervisors, could be considered retaliation or discrimination on the basis of disability.
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Hi Readers,
I’m excited to bring back our School District & Municipal Liability column. Did you know that New York City School District 31 has the largest student enrollment in the state, with approximately 56,000 students? By contrast, Long Lake Central School District has the smallest, serving just about 60 students. Yet, both have a non-delegable duty to supervise students during school hours and sanctioned activities. Today’s decision takes a closer look at how courts interpret that duty.
7/10/2025 Z.R. v. Schenectady City School District
Appellate Division, Third Department
The Third Department held that triable issues of fact precluded summary judgment where a fourth-grade student was injured playing tag in UGG boots, including whether a reasonably prudent gym teacher would have allowed the student to decide if her footwear was safe and whether that decision proximately caused her injury.
In this case, a fourth-grade student fractured her ankle while playing “tag” during a school physical education class. The complaint asserted a claim for negligent supervision, alleging that the gym teacher acted negligently by permitting the student to participate in the activity while wearing UGG boots.
The gym teacher testified that, prior to beginning the game, he conducted a visual assessment of the students to determine whether their footwear was safe. He explained that, at the time of the incident, there was no rule prohibiting students from participating in athletic activities while wearing rubber-soled boots, so long as the footwear appeared safe. He further testified that if a student’s footwear appeared unsafe, he would give the student the option to sit out. Although the gym teacher acknowledged that he was aware the student was wearing UGG boots, he did not inspect the soles to determine whether they were worn.
The student testified that, before the game began, the gym teacher asked whether she had sneakers with her. When she responded that she had left them at home, he advised her to “be careful when running” and cautioned her not to get hurt while playing tag in boots. The student testified that she did not know whether the rubber soles of the boots contributed to her fall.
The school district moved for summary judgment dismissing the complaint, arguing, among other things, that there was no evidence of negligent supervision.
The Supreme Court denied the motion, finding that questions of fact existed as to whether the gym teacher negligently permitted the student to determine for herself whether the UGG boots were appropriate footwear for the game of tag and whether that decision was a proximate cause of her injury. The district appealed.
While schools are not insurers of student safety and cannot reasonably be expected to continuously supervise and control every student movement, they nonetheless owe a duty to adequately supervise students in their charge and may be held liable for foreseeable injuries proximately caused by a failure to provide such supervision.
On appeal, the district argued that the gym teacher provided reasonable supervision to the student under the circumstances. The Third Department held that triable issues of fact remained regarding whether a reasonably prudent parent in the gym teacher’s position would have allowed the student to make that determination and whether the footwear was a proximate cause of the student’s fall.
07/23/2025 Sclafani v. Young Adult Inst., Inc.
Appellate Division, Second Department
The Second Department reversed summary judgment, finding triable issues of fact as to whether inadequate supervision of a fellow student with known behavioral concerns could have prevented injuries to the plaintiff.
The plaintiff, a developmentally disabled adult and student at the defendant’s school, allegedly sustained injuries when she was knocked over by a fellow student while walking in the parking lot of defendant’s campus. The plaintiff sued the school under a negligent supervision theory.
The school moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The lower court granted the school’s motion and denied the plaintiff’s motion. The plaintiff appealed.
In New York, programs such as the defendants that provide services to developmentally disabled adults have a duty to adequately supervise such students in their care, and are liable for foreseeable injuries proximately related to the absence of adequate supervision.
In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.
Here, the Second Department held that the defendant failed to establish prima facie, that it provided adequate supervision. The defendant’s submissions, including an individualized service plan and review prepared for the fellow student, presented triable issues of fact as to whether additional staff attention over the fellow student could have prevented the incident. Accordingly, the Second Department reversed the decision of the lower court.
10/15/2025 PC-15 Doe v. Lawrence Union Free Sch. Dist.
Appellate Division, Second Department
The Second Department held that the school district failed to establish, as a matter of law, that it lacked constructive notice of a custodian’s alleged abusive propensities, warranting denial of summary judgment on negligent hiring, retention, and supervision claims under the Child Victims Act.
The plaintiff brought an action pursuant to the Child Victims Act (CPLR 214-g) against the defendant Lawrence Union Free School District for damages related to alleged sexual abuse by a District custodian. The abuse took place after school, on weekends, and at the custodian’s home.
After discovery, the district moved, inter alia, for summary judgment dismissing the negligent hiring, retention, training, and supervision claims on the ground that it did not have actual or constructive notice of the abuse or of the custodian's alleged propensity to engage in such conduct. The plaintiff appealed.
To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.
On appeal, the plaintiff argued that the abuse occurred more than 30 times over two years, that there were several other students who were similarly abused, and that another custodian employed by the District, with whom the subject custodian shared his shift, was present in the elementary school building after hours and on weekends and saw the plaintiff on every occasion that he was alone with the custodian in the building.
Thus, contrary to the district’s contentions, the Second Department held that the district failed to establish, prima facie, that it lacked constructive notice of the custodian's alleged abusive propensities and conduct.
12/18/2025 Gurbanova v. City of Ithaca
Court of Appeals of New York
The Court of Appeals affirmed dismissal of the action where the City’s prior written notice law applied to a municipal parking lot and bollard, and plaintiffs failed to raise a triable issue of fact under the affirmative negligence exception.
This action arose from injuries sustained by a five-year-old child in July 2019 at Cass Park in Ithaca. After riding bicycles in the park with his mother, the child returned to a vehicle parked in a municipal lot where, while his mother loaded the bicycle into the car, he grabbed onto a three-foot-high, arch-shaped metal bollard installed to protect trees. As the child swung from the bollard, it dislodged from the ground and fell, injuring his hand. Plaintiffs thereafter commenced an action against the City of Ithaca and the Ithaca Youth Bureau alleging negligent creation and maintenance of a dangerous condition. Following discovery, the City moved for summary judgment on the ground that the claim was barred by its prior written notice law, and the Appellate Division affirmed dismissal before the Court of Appeals granted leave to appeal.
The Court of Appeals held that the City’s prior written notice law applied to the municipal parking lot where the accident occurred, reaffirming that such parking lots fall within the definition of a “highway” under General Municipal Law § 50-e. The Court further held that the bollard constituted an appurtenance subject to the notice requirement, consistent with precedent applying the statute to fixed installations such as signposts, guardrails, and parking meter poles.
The Court rejected plaintiffs’ reliance on the affirmative negligence exception, finding no triable issue of fact that the City created an immediately dangerous condition through an affirmative act of negligence when it installed the bollard approximately fourteen years before the accident. The Court found plaintiffs’ expert affidavit insufficient, noting that the expert offered conclusory opinions that the bollard was unsafe from the moment of installation without reliance on industry standards, empirical data, or a factual explanation demonstrating that the installation itself immediately created a hazardous condition. The record instead suggested that any defect developed over time due to environmental conditions, which was insufficient to invoke the exception.
Accordingly, the Court of Appeals affirmed dismissal of the complaint, holding that the City was entitled to summary judgment in the absence of prior written notice and any applicable exception.
12/18/2025 Contona v. Godas
Supreme Court of New York, Appellate Division, Second Department
The Appellate Division reversed a defense verdict and ordered a new trial where the jury’s findings on notice, unsafe condition, and lack of negligence were irreconcilably inconsistent and contrary to the weight of the evidence.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a trip-and-fall caused by an uneven sidewalk condition abutting premises owned by the defendants. The matter proceeded to a jury trial on the issue of liability only. At trial, defendant Joanne Godas testified that the premises housed several longstanding businesses generating significant foot traffic. Defendants acknowledged that photographs admitted into evidence showed the sidewalk condition had existed since at least 2007, though they characterized it as merely a “drop” or “settlement of cement.” Defendants further testified that they were unaware of the condition but conceded that, had they been notified, they would have repaired it or placed a warning cone. Defendants also acknowledged that, under the Town of Oyster Bay Town Code, they were responsible for maintaining the sidewalk in a safe condition.
The jury found that an unsafe condition existed and that defendants knew or should have known of the condition prior to the accident, but nonetheless concluded that defendants were not negligent in failing to correct the condition or take precautions. Plaintiff moved orally pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, which the Supreme Court denied.
On appeal, the Appellate Division reversed, holding that the jury’s verdict was irreconcilably inconsistent and could not be reconciled on any fair interpretation of the evidence. The Court concluded that findings that the sidewalk was unsafe and that defendants had sufficient notice to correct it, yet were not negligent, were unsupported by the evidence. Accordingly, the Appellate Division granted plaintiff’s CPLR 4404(a) application, reinstated the complaint, and remitted the matter for a new trial on the issue of liability.
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