NOTE FROM THE EDITOR:
Greetings from sunny Scottsdale, where I’m attending the FDCC Winter Meeting this week, joined by my fellow FDCC friends and colleagues. The meeting is off to a terrific start and yes, the weather is amazing – today’s high is 88!
We have exciting news from Hurwitz Fine this month! Our continued strategic growth has brought us into New England with the opening of offices in New Hampshire and Massachusetts, along with the addition of three highly respected insurance coverage partners:
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Barbara A. O’Donnell – Barbara brings more than 30 years of experience advising insurers on complex insurance coverage disputes and bad-faith claims. Admitted to practice in state and federal courts in Massachusetts, Connecticut, and New York, she has a strong record of successfully handling defective construction, additional insured, priority of coverage, allocation, and unfair claims handling matters across the Northeast.
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Alexander G. Henlin – Alex brings more than 20 years of experience counseling and representing insurers and reinsurers in arbitration, litigation, and alternative dispute forums throughout New England and the broader Northeast. He has served as lead counsel at both the trial and appellate levels, advising on complex insurance coverage and bad-faith matters involving primary and excess-layer programs, first- and third-party risks, and policies including general liability, D&O, E&O, and professional liability, as well as emerging risks.
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Iryna N. Dore – Iryna brings more than 15 years of experience representing insurers in insurance coverage and extra-contractual liability litigation. She counsels insurers on first- and third-party claims involving a wide range of policies, including general liability, property, auto, D&O, and professional liability, and regularly assists with the evaluation, negotiation, and litigation of complex coverage disputes and bad-faith claims.
We’re proud to expand our footprint while continuing to strengthen our insurance coverage bench across the Northeast. For more details on our expansion, click here.
Looking ahead, our next litigation webinar will focus on the critical implications of the AVOID Act on March 27th. “Beyond Avoidance: Preparing for the AVOID Act’s Transformation of Third-Party Practice in New York,” will address the significant changes taking effect on April 18. As of that date, New York’s third-party practice rules will change dramatically. Claims for contribution and indemnity asserted in a third-party action must now be commenced within 90 days of service of a defendant’s answer—or risk being barred from the underlying lawsuit. Although the legislation was primarily aimed at New York Labor Law and construction accident claims, its reach will extend across the litigation spectrum, including products liability and premises liability matters. These changes will require early, strategic decision-making by insurers and litigants, particularly with respect to risk transfer, tenders, additional insured status, and indemnification obligations. David Adams, Hurwitz Fine’s Labor Law Chair, and Dan Kohane, the firm’s Insurance Coverage Chair, will provide a practical and strategic roadmap for navigating the procedural and coverage challenges parties and insurers will face in actions commenced after the Act’s effective date.
For more information and to register, click here.
After that, our Retail & Hospitality team will be back on April 16th to host “Litigation Strategies: Removing Cases to Federal Court,” where we will focus on navigating the removal of civil actions from state court to federal court. This webinar will focus on the legal bases for removal, key procedural requirements and timing considerations, and the strategic advantages federal court can offer. Attendees will gain practical insight into how removal can serve as more than a procedural step—it can be a meaningful litigation advantage.
For more information and to register, click here.
Finally, welcome to Jerry Lenihan who joins the Premises Pointers team. He will be covering our municipal column.
-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]
This month we are going outside of the 2nd Circuit and covering retail cases involving Walmart, Costco and Family Dollar from district courts in California, Texas and Michigan.
1/23/2026 Bean v. Walmart Inc.
United States District Court, Central District of California
Despite a history of prior incidents involving pallets the Court denied the plaintiff’s motion for summary judgment.
Plaintiff Judith Bean filed suit against Walmart Inc. after tripping and falling over a partially empty "stackbase" (pallet). Walmart’s policies and employee training recognized that partially empty stackbases are tripping hazards, requiring prompt restocking or removal, and the use of safety cones on unstocked corners. Surveillance footage showed that Walmart employees, including an assistant manager, had constructive notice of the stackbase for at least an hour before the incident, but no action was taken to remove, restock, or warn about the hazard. There had been eight prior incidents of customers tripping over similar stackbases at the same store in the previous five years. Despite this evidence, the court denied plaintiff’s motion for partial summary judgment on the issue of Walmart’s liability for premises liability. The court found that, while many facts were undisputed, including Walmart’s knowledge of the hazard, there were other questions of fact. They included whether the stockbase was indeed an unsafe condition and whether it was an open and obvious condition. Ultimately, the court decided that these issues must be resolved by a jury.
2/17/2026 Ross v. Costo Wholesale Corp.
United States District Court, Western District of Texas, San Antonio Division
Lawsuit was removed to Federal Court under a fraudulent joinder theory—the court agreed and denied plaintiff’s motion to remand.
The plaintiff in this case was struck by a train of shopping carts allegedly steered "in a hazardous and reckless manner" by an employee at a Costco store. Further, the plaintiff alleged that Lizette Parra, a management-level employee of Costco, performed "negligent, unhygienic" first aid on her while acting within the scope of her employment, which allegedly aggravated the plaintiff's injuries and led to a severe infection. Parra was named in the suit. Costco removed the case to federal court, asserting diversity jurisdiction and arguing that Parra was improperly joined. The plaintiff moved for remand to state court, arguing procedural defects in removal, lack of unanimity, improper joinder, and the sufficiency of claims against Parra.
Regarding jurisdiction and removal, the court that Para was improperly joined. Therefore, because federal subject matter jurisdiction existed as the amount in controversy exceeded $75,000, complete diversity existed between the plaintiff (a Texas citizen) and Costco (a Washington citizen). On the improper joinder issue, the court determined the plaintiff failed to allege that Parra owed an independent duty of care to the plaintiff separate from her role as a Costco employee. All allegations against Parra described actions taken within the scope of her employment, and Texas law requires an independent duty for individual liability of an employee, as is the standard in many jurisdictions. The court applied the standard for improper joinder, which requires the removing party to show either actual fraud in the pleading of jurisdictional facts or the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. The case remained in federal court.
2/4/2026 Holland v. Fam Dollar Stores of Mich
United States District Court for the Easter District of Michigan
Family Dollar’s summary judgment motion was granted due to lack of notice to Family Dollar of the bleach spill.
While shopping at a Family Dollar, the plaintiff, Judith Ann Holland, slipped on spilled bleach near the checkout counter. The spill was caused by another customer and existed for approximately six minutes before the fall. Like many retail cases, the central question was whether Family Dollar employees had actual or constructive notice of the dangerous condition (the bleach spill) in time to address it before the plaintiff’s fall. The court found that the spill existed for only six minutes, employees’ views were obstructed by customers, COVID-era barriers, and store displays, and employees were occupied with shift-change duties. No customer reported the spill, and employees testified they were unaware of it until after the fall. The plaintiff argued that employees should have inspected the area more frequently, but the court found no evidence that such frequent inspections were standard or required. The store’s practice of periodic checks was deemed reasonable under the circumstances. The court emphasized that the burden of proving notice rests with the plaintiff, and mere speculation or the possibility that staff could have discovered the spill was insufficient. The court granted summary judgment in favor of Family Dollar, finding that no reasonable jury could conclude the employees had constructive notice of the spill within the short timeframe.
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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,
It seems that the groundhog properly predicted six more weeks of winter, as evidenced by the recent snowstorms and frigid temperatures. Of course, I am still hopeful, however, that Spring shows up earlier than expected.
I wish everyone safety and warmth through whatever time remains in this winter season.
2/10/2026 Anderson v AAC Cross County Mall, LLC
Appellate Division, First Department
The Appellate Division, First Department, affirmed the Trial Court’s decision and granted Defendant King Fence’s motion for summary judgment.
Plaintiff was allegedly injured when she slipped and fell on a patch of ice, covered by fresh snow fall during an ongoing storm. Kings Fences was the snow removal contractor responsible for plowing and salting the parking lot, when necessary.
The Court held that since King Fences did not plow or salt the parking lot on the date of the accident, prior to plaintiff’s accident, it cannot be found to have launched an instrument of harm, one of the exceptions under the Espinal Doctrine.
The Court was not persuaded by plaintiff’s, or her expert’s, argument that King Fence’s (alleged) negligent removal of snow after an earlier storm caused her injury.
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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,
This month we have a decision out of the Fourth Department which offers a lens into how New York courts interpret indemnification provisions in commercial service agreements. The below case underscores a critical takeaway that indemnification clauses are not boilerplate afterthoughts as they are risk-allocation mechanisms and should be unequivocal, well defined, and customized to meet a company’s circumstances.
2/11/2026 Fino v. Macy’s Retail Holdings, Inc. et al.
Appellate Division, Fourth Department
“While ‘[a]n indemnification agreement will be deemed void and unenforceable [under General Obligations Law § 5-322.1] if the party seeking indemnification was itself negligent’ . . .’[w]ithout a finding of negligence [against that party] . . . , General Obligations Law § 5-322.1's prohibition against indemnify[ication] . . . is inapplicable.’”
The plaintiff’s decedent was injured upon exiting an allegedly mis-leveled elevator at the premises leased by the defendant Macy’s Retail Holdings, Inc. The elevator was maintained exclusively by the defendant Gallagher Elevator Company, Inc. Macy’s filed a motion for summary judgment to dismiss the complaint as well as Gallagher’s cross-claim and for an order directing Gallagher to contractually defend and indemnify Macy’s. The Erie County Supreme Court granted Macy’s motion.
Gallagher appealed the portion of the decision ordering Gallagher to defend and indemnify Macy’s. The Fourth Department affirmed. Gallagher’s president testified that Gallagher’s original service agreement which did not include Macy’s had been assigned to Macy’s and both companies operated pursuant to the terms of the agreement. The Court held there was no triable issue of fact as to whether Macy’s was negligent as Macy’s had an exclusive maintenance contract with Gallagher “to inspect, maintain and repair the elevator and had neither actual nor constructive notice of a defective condition.”
The Fourth Department rejected Gallagher’s argument that the indemnification language in the contract required a finding that Gallagher was negligent and that the clause violated General Obligations Law § 5-322.1. The indemnification section required Gallagher to provide defense and indemnification for “any and all claims (whether meritorious or not) . . . arising out of the performance or non-performance of maintenance services.”
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hi Readers,
If you’re anything like me, you’ve reached that point in the Buffalo winter where the snow has long overstayed its welcome, and I find myself counting down the days until longer evenings, warmer temperatures, and the return of a Buffalo’s spring and summer. While winter in Western New York may test our patience, this month’s decisions remind us that courts have far less tolerance for parties who fail to comply with procedural obligations, highlighting recurring litigation pitfalls such as the consequences of ignoring discovery demands, the strict federal evidentiary requirements for spoliation sanctions, and the distinction between fact and expert testimony under CPLR 3101(d)(1).
2/11/2026 Hicks v. Unitrin Advantage Ins. Co.
Appellate Division, Fourth Department
A party’s repeated failure to comply with discovery demands and court orders, without a reasonable excuse, may be deemed willful and contumacious conduct warranting the striking of its pleading and entry of default judgment.
The plaintiff commenced this breach of contract action seeking no-fault insurance benefits from her automobile insurance carrier, Unitrin Advantage Insurance Company (“Unitrin”), following a motor vehicle accident. After Unitrin partially denied her claim for lost wages, the plaintiff sought to recover $24,229.20 pursuant to the no-fault insurance law.
During discovery, Unitrin failed to respond to the plaintiff’s discovery demands and good-faith demand letter, prompting the plaintiff to move to compel responses pursuant to CPLR 3124. Although Unitrin later served responses, they were incomplete. Unitrin then consented to a conditional preclusion order requiring complete responses within 60 days. However, Unitrin served incomplete supplemental responses both before and after the deadline expired.
As a result, the plaintiff moved pursuant to CPLR 3126 to strike Unitrin’s answer and for a default judgment. Unitrin opposed the motion and cross-moved for a protective order, arguing that the discovery demands were irrelevant. The Supreme Court granted the plaintiff’s motion, struck Unitrin’s answer, and denied Unitrin’s cross-motion.
On appeal, the 4th Department affirmed, reiterating that trial courts have broad discretion in supervising discovery and that striking a pleading is appropriate where a party’s failure to comply with discovery obligations is willful, contumacious, or in bad faith. The Court held that Unitrin’s repeated failure to provide complete discovery responses and comply with a conditional preclusion order established willful and contumacious conduct. The burden therefore shifted to Unitrin to offer a reasonable excuse, which it failed to do.
The Appellate Division further rejected Unitrin’s argument that the discovery demands were irrelevant, holding that the demands sought information relevant to potential bias of its independent medical examination physicians. Accordingly, the Court concluded that the trial court did not abuse its discretion in striking Unitrin’s answer and entering default judgment in favor of the plaintiff.
2/18/2026 GateGuard, Inc. v. Amazon.com, Inc.
United States District Court, Southern District of New York
Spoliation sanctions will not be imposed where a party negligently destroys evidence but the moving party fails to establish that the destroyed evidence was relevant to its claims.
The plaintiff, GateGuard, Inc. (“GateGuard”), commenced an action against Amazon.com, Inc. (“Amazon”) asserting, among other claims, trade secret misappropriation. During discovery, GateGuard moved for spoliation sanctions, including an adverse inference instruction, after learning that an Amazon consultant had discarded a GateGuard intercom device obtained by Amazon.
The Court explained that to obtain spoliation sanctions, a party must establish that the opposing party had an obligation to preserve the evidence, destroyed it with a culpable state of mind, and that the destroyed evidence was relevant to its claims. Here, the Court found that Amazon had an obligation to preserve the device and acted negligently by failing to issue a litigation hold.
However, the Court held that GateGuard failed to establish the relevance element. The undisputed evidence demonstrated that the device was never opened, tested, or installed, and GateGuard’s remaining trade secret claims depended on the interaction between installed devices. Because the destroyed device was never used or examined, GateGuard failed to demonstrate that it contained evidence relevant to its claims or that its destruction prejudiced GateGuard.
Accordingly, the Court denied GateGuard’s motion for spoliation sanctions, holding that negligence alone does not warrant sanctions where the moving party fails to establish that the destroyed evidence was relevant.
2/18/2026 Chiloyan v. Chiloyan
Appellate Division, Second Department
Police officers who testify regarding their investigation as fact witnesses are not subject to expert disclosure requirements under CPLR 3101(d)(1), and evidentiary rulings will not be disturbed absent prejudice to a substantial right.
The plaintiff commenced an action to recover damages for personal injuries allegedly sustained when he was ejected from a van owned and maintained by the defendant. The plaintiff claimed that a defective seatbelt caused his ejection, and the issue of seatbelt use and causation was central to the liability determination at trial.
During the liability phase of the bifurcated trial, the Supreme Court permitted two police officers to testify regarding their investigation of the accident. On appeal, the plaintiff argued that their testimony should have been precluded because the defendant failed to provide expert witness disclosure pursuant to CPLR 3101(d)(1).
The Appellate Division rejected this argument, holding that the officers testified as fact witnesses based on their personal observations and investigative actions, rather than offering expert opinions. As such, expert disclosure requirements were inapplicable.
The Court further reiterated that trial courts are afforded broad discretion in making evidentiary rulings, and such determinations will not be disturbed absent prejudice to a substantial right. The Court also upheld the trial court’s decision to preclude certain photographic evidence, finding that any alleged error was harmless because there was no indication that the evidence would have affected the outcome of the trial.
Accordingly, the 2nd Department affirmed, holding that the admission of police investigative testimony without expert disclosure was proper and that the plaintiff failed to establish prejudicial evidentiary error.
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Labor and Employment Law Desk: Issues for Schools, Retailers and Employers
By: Maxwell C. Radley [email protected]
This case concerns former BOCES employee Ms. Schwetz, who alleged gender discrimination and retaliation under Title VII after her termination. On appeal, however, the Second Circuit affirmed dismissal of her claims, holding that the actions she identified were discrete events. Each event was subject to its own 300‑day limitations period and, therefore, not saved by the continuing‑violations doctrine.
2/20/2026 Schwetz v Bd. of Coop. Educ. Servs. of Nassau County
U.S. Court of Appeals, Second Circuit
Second Circuit confirms: Timing is everything for Title VII discrete actions
Following the termination of her employment with the Board of Cooperative Educational Services of Nassau County, Plaintiff brought suit, alleging that BOCES discriminated and retaliated against her on the basis of her gender. In the district court, BOCES successfully moved for summary judgment, arguing that the Plaintiff’s Title VII claims were time-barred when Plaintiff filed her EEOC charge more than 300 days after the alleged discriminatory acts occurred. Plaintiff, however, appealed that decision, arguing that additional discriminatory acts occurred after the 300-day time limitation, making the employer’s actions “continuing conduct.” Ultimately, the Second Circuit affirmed the trial Court’s ruling, holding that the each action alleged constituted a “discrete” act and did not rise to the level of an ongoing discriminatory policy or practice. Instead, each discrete action separately triggered a 300 day time limit to commence a charge with the EEOC rather than falling within the scope of an ongoing discriminatory practice or policy. Plaintiff’s state law claims were also dismissed because she failed to comply with the Notice of Claim requirements of N.Y.’s General Municipal Law.
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Chalkboards and Claims: Liability Issues Facing School Districts
By: Bradon S. Carlson [email protected]
Hello Readers,
As we await the appellate courts’ first major decision of 2026, I’ve highlighted two cases from last year that address well-established principles: first, that a negligent supervision claim can survive only where there is proximate cause between the alleged lack of supervision and the plaintiff’s injuries; and second, that courts strictly enforce the 90-day statutory deadline for serving a school district with a Notice of Claim - even where a school district may have had prior notice of the incident itself.
4/16/2025 Cristofari v. North Shore Central School District
Appellate Division, Second Department
The Second Department held that the school district established their entitlement to summary judgment by demonstrating that they provided adequate supervision during the football practice and that, in any event, any alleged lack of supervision was not a proximate cause of the plaintiff’s injuries, as the incident occurred too quickly to have been prevented.
In March 2021, the plaintiff, a high school quarterback, was injured during a no-contact football drill when a teammate collided with his leg. Three coaches were supervising the practice, and one coach repeatedly warned players to stay away from the quarterback, including a warning approximately two seconds before the incident.
In October 2021, the plaintiff commenced an action against, among others, the North Shore Central School District and North Shore High School, alleging negligent supervision. After discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that they provided adequate supervision and that the incident occurred so quickly that any alleged lack of supervision was not a proximate cause of the injury. The Supreme Court, Nassau County, denied the motion.
On appeal, the Second Department reversed. The Court reiterated that while schools have a duty to adequately supervise students and may be liable for foreseeable injuries proximately caused by inadequate supervision, they are not insurers of student safety. Even assuming an issue of fact as to the adequacy of supervision, liability cannot attach absent proximate cause, and where an accident occurs in such a short span of time that even adequate supervision could not have prevented it, lack of supervision is not the proximate cause.
The Court held that the District established prima facie entitlement to judgment as a matter of law by demonstrating adequate supervision and, in any event, that any alleged deficiency was not a proximate cause of the plaintiff’s injuries. The plaintiff failed to raise a triable issue of fact in opposition.
05/21/2025 Matter of Cooke v. Mamaroneck Union Free School District
Appellate Division, Second Department
The Second Department held that the Supreme Court erred in granting leave to serve a late notice of claim, as the petitioner failed to establish that the District acquired actual knowledge of the essential facts underlying the claim within the statutory period or that they had a reasonable excuse for the delay.
On October 6, 2022, the petitioner, a licensed practical nurse hired to provide one-on-one nursing services to an elementary school student during the school day, allegedly was injured when the student struck her while they were at school. The student had an individualized education program (IEP) that required he be accompanied by an aide at all times due to aggressive behaviors, and the petitioner contended that no such aide had been assigned at the time of the incident.
The petitioner did not serve a notice of claim within the 90-day statutory period and, in March 2023, commenced a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against the Mamaroneck Union Free School District, asserting negligence based on the alleged failure to provide adequate supervision and to comply with the student’s IEP. The Supreme Court, Westchester County, granted the petition.
On appeal, the Second Department explained that in deciding whether to permit late service here, it must consider whether the district acquired actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter, whether the petitioner had a reasonable excuse for the delay, and whether the delay would substantially prejudice the district’s defense.
The Court held that although an employee incident report, a police report, and the involvement of the District employee may have provided the District with notice of the occurrence itself, they did not establish that the District had actual knowledge of the essential facts underlying the negligence claim, specifically, any causal connection between the petitioner’s injuries and alleged negligent conduct, including the alleged failure to assign an aide as required by the IEP.
The Court further determined that the petitioner’s assertion that her injuries confined her to her home, unsupported by medical documentation or other evidence linking her physical condition to the delay, was insufficient to constitute a reasonable excuse. Although the petitioner demonstrated a lack of substantial prejudice and the District failed to rebut that showing, the absence of actual knowledge and a reasonable excuse weighed against granting leave. Accordingly, the Second Department reversed the Supreme Court and denied the petition.
Until next time!
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The Municipal Defense Docket: Immunity, Indemnity & Municipalities
By: Jeremiah E. Lenihan [email protected]
I am pleased to contribute to Premises Pointers with a focus on municipal defense and, in particular, claims brought under 42 U.S.C. § 1983. Municipalities across New York continue to face Monell allegations framed in broad, conclusory language, as complaints often reference a “policy, practice, or custom” of unconstitutional conduct without identifying supporting facts. Recent decisions from the Appellate Division and the Western District of New York reinforce a familiar but important principle: Monell requires more than labels.
Two recent cases, one from the Second Department and one from Judge Frank P. Geraci, Jr. in the Western District, underscore the high bar plaintiffs must meet when attempting to impose municipal liability.
1/21/2026 Cardona v. County of Orange
Appellate Division, Second Department
State courts, like federal courts, will dismiss § 1983 municipal claims where the complaint merely recites the elements of Monell without factual support. Boilerplate allegations do not survive CPLR 3211 scrutiny.
In Cardona, the Second Department affirmed dismissal of § 1983 claims against the County of Orange, specifically the District Attorney’s Office, arising from allegations of false arrest, unlawful imprisonment, and malicious prosecution. While the decision addressed multiple theories of liability, it serves as a reminder that municipalities are not vicariously liable under § 1983 simply because their employees are sued. The court reaffirmed that municipal liability (Monell liability) requires proof that a constitutional violation resulted from an official policy, custom, or practice. Conclusory allegations that a county “maintained a policy” or “failed to properly train” are insufficient absent factual detail demonstrating:
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A formal policy officially adopted by the municipality;
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A widespread and persistent practice amounting to custom;
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A decision by a final policymaker; or
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Deliberate indifference in training or supervision.
The Second Department’s ruling aligns with the longstanding principle that Monell liability cannot rest on respondeat superior. Where plaintiffs fail to plead facts demonstrating an actionable municipal policy or pattern, dismissal remains appropriate at the pleading stage. The case also represents the principle that a District Attorney’s Office, as long as they are not involved in an underlying investigation, is entitled to absolute immunity for underlying causes of actions.
2/12/2026 Shot v. Town of Irondequoit
United States District Court, Western District of New York
The “single incident” exception remains exceedingly narrow. Absent allegations demonstrating that unconstitutional consequences were obvious and inevitable, courts will require evidence of a pattern of similar violations.
In Shot, Judge Geraci dismissed Monell claims against the Town of Irondequoit, holding that the plaintiff failed to plausibly allege a municipal custom, policy, or deliberate indifference. The plaintiff alleged excessive force and claimed the Town:
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“Tolerated” constitutional violations;
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Failed to train officers properly;
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Failed to discipline or retrain officers; and
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Ignored a “plethora of complaints” from citizens.
Judge Geraci found these allegations conclusory. Critically, the complaint identified only the plaintiff’s own incident and provided no factual detail regarding prior complaints, patterns of misconduct, or specific deficiencies in training. The Court reiterated that a single incident alleged in a complaint, especially involving actors below the policymaking level, does not suffice to establish municipal liability.
Plaintiffs often fall back on the “single incident” theory derived from Connick v. Thompson, arguing that a failure to train is so obvious that no pattern is required. But the Supreme Court has made clear that this is a “narrow range” of circumstances where the unconstitutional consequences are patently obvious. Judge Geraci rejected that fallback argument finding that the plaintiff identified no specific training deficiency, alleged no prior similar incidents, and offered no facts showing policymakers were on notice of recurring misconduct. Without factual allegations showing deliberate indifference, meaning policymakers knowingly disregarded an obvious risk, the Monell claim could not proceed.
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