Premises Pointers - Volume V, No. 1


Premises Pointers
Watch your step!

Volume V, No. 1
Monday, June 14, 2021
A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

Retail, Restaurant and Hospitality Industry
School District and Municipal Liability
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability



What a difference a year makes! Things are slowly but surely returning to normal and it is a welcome change. The Hurwitz & Fine softball season is well underway having already played three games, my partner Steve Peiper had an in-person trial in the Southern District of New York, we have a full complement of law clerks working at the office this summer and are planning our first in-person gathering – an Associates Event – since 2019.
In other June news, Hurwitz & Fine celebrated its 44th anniversary. On June 1, 1977, Hurwitz & Fine was founded by Robert P. Fine and the now late Sheldon Hurwitz.  On that date, Bob, Shelly, and two other lawyers opened H&F’s doors on the 14th floor of the Liberty Building – 1410 Liberty Bank Building. Since that time, the Firm has grown from 4 to 52 lawyers currently, and from one office in Buffalo to lawyers working out of more than eight cities. 

Speaking of growing, we are proud to announce two attorneys have joined our firm this month. Kara M. Eyre has joined our Buffalo office, and will be working in the Premises Liability, Products Liability, Medical Malpractice & Nursing Home Liability and Transportation Negligence practice groups. Thomas Casella has also joined Hurwitz & Fine as an Insurance Coverage member. He is working out of Utica, increasing our Central New York presence, between our Rochester and Albany offices!
June is also Pride Month. As a firm, we are committed to diversity, equity and inclusion in the legal system, workplace, and in our community. Each month we take time internally within our organization to recognize and celebrate diversity. Last month, our marketing director Carolyn Batt shared an important message in recognition of May as Mental Health Awareness Month and attorney Eric Bernhardt published a piece about Jewish American Heritage also recognized in May. We profiled Women’s History Month in March and Black History Month in February.  
This month, Premises Pointers Assistant Editor Anastasia McCarthy wrote a wonderful piece in recognition of Pride Month that, with her permission, I am sharing below.   
June is Pride Month
By Anastasia McCarthy, Esq.

June 28, 2021 will mark the 51st anniversary of the Stonewall Riots, widely regarded as the very first Pride.  Although historians trace the struggle for LGBTQ+ liberation and equality in the United States as far back as the 1920s, Stonewall represents a vital turning point in LGBTQ+ history—a turning point that encouraged LGBTQ people to live openly, authentically, and without shame. Annual pride celebrations are intended to honor the legacy of Stonewall, to honor the contributions (both great and small) that LGBTQ+ people make to society at large, and to allow LGBTQ+ people to boldly declare and celebrate their identities and families.
Pride is as much about celebrating the accomplishments of well-known trailblazers as it is about celebrating the day-to-day victories of average people. From Oscar Wilde, Alan Turing, and Harvey Milk to Marsha P. Johnson, Elliot Page, and Edith Windsor, our culture has been shaped by LGBTQ+ people. In fact, it is difficult to find an area of life or history that has not, in some way, been impacted by an LGBTQ+ person. Even the more mundane aspects of life, like using a computer or, in my case, filing a married/joint federal tax return, are due, at least in part, to LGBTQ+ individuals.
Pride is also about reflection.  Over the last few decades alone, LGBTQ+ people in many parts of the country have seen the fight for equality, in all aspects of life, take center stage. Despite remarkable progress over the last ten years, however, there is still much work to be done (and much to protect). In fact, 2021 is currently expected to surpass 2015 as one of the worst years for anti-LGBTQ legislation in the United States.  We are only 5 months into the year and more than 250 anti-LGBTQ bills have been introduced into state legislatures across the nation—eight of them have already become law and another ten are awaiting signature from various state governors. Arkansas became the first state to ban gender-affirming healthcare to minors; North Dakota, South Dakota, and Arkansas passed bills allowing business owners to refuse service to LGBTQ+ human beings; Arkansas and Tennessee legislatures passed bills that would forbid the discussion of LGBTQ+ people, sexuality, and/or gender in the classroom, including in discussions of literature and history; and Montana’s legislature sent a bill to the Governor that purposefully makes it harder for transgender people to update their birth certificates.  Seeing this clear animus among state lawmakers, it is hardly surprising that 2020 and 2021 are noted to have seen a drastic increase in the number of LGBTQ+ people, particularly transgender people, murdered across the country.  
While we are fortunate to live in a state that protects the dignity and freedoms of LGBTQ+ people, dignity for one should mean dignity for all—the fight for equality has been, from the beginning, about gaining societal acceptance and discrimination against, physical harm to, and the dehumanizing of any LGBTQ+ person, in any part of the country, does harm to us all.
I wish you a Happy Pride. I encourage you to spend some time this month consuming LGBTQ+ media (I have recommendations!), attending pride events, or reading about LGBTQ+ history. If you take nothing else away from the lessons of pride month, please let it be to treat yourself, and others, with kindness. Afterall, to quote the great RuPaul, “If you can't love yourself how in the hell are you gonna love somebody else?”
Until Next Month,


And 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.

Employment & Business Litigation Pointers:  This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] if you would like to subscribe.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s 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 Chris Potenza at [email protected] 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. 


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

5/17/21            Alger v. Von Maur, Inc.
United States District Court, Western District of New York
Court granted Defendant retailer’s motion for summary judgment, finding that there was no evidence that Defendant created or had notice of water on the floor.
Plaintiff sued to recover damages she claims to have sustained after she slipped and fell on an allegedly wet floor inside Defendant’s store in the Eastview Mall in Victor, New York. Defendant, represented by Hurwitz & Fine, moved for summary judgment, which the Court granted. Plaintiff argued that Defendant had not submitted proof that none of Defendant’s employees observed the area where Plaintiff fell before the incident, nor did Defendant offer proof that it did not receive any complaints about an allegedly wet floor before Plaintiff fell. Plaintiff’s argument was improperly based on New York’s summary judgment standard, which requires the moving party to put forth evidence in support of its motion. The Court noted that, under the federal summary judgment standard, Defendant is not required to put forth evidence demonstrating its lack of actual or constructive notice; instead, Defendant must simply show that Plaintiff will not be able to prove at trial that Defendant had either actual or constructive notice based on the evidence in the record. The Court then found that Defendant was able to establish Plaintiff’s inability to prove at trial that Defendant created or had actual or constructive notice of the allegedly dangerous condition and had thus met its burden. The Court next turned to the issue of whether Defendant created or had actual knowledge of the allegedly wet floor, finding that there was no evidence in the record that Defendant actually knew about the alleged wet spot by virtue of creating it, receiving complaints about it, or seeing it. As a result, the Court determined Plaintiff had not raised any triable issue of material fact to overcome summary judgment.
Plaintiff also argued that there is an issue of fact as to how the floor became wet and whether Defendant had constructive notice. However, Plaintiff was unable to cite to any evidence that there was water on the floor at the location of the accident prior to her fall, and Plaintiff herself testified that she did not see liquid on the floor immediately prior to her fall. Plaintiff provided evidence of the presence of water or wetness after her fall, but case law has established that constructive notice requires the condition to be visible, apparent, and in existence prior to the incident for a length of time sufficient to afford Defendant an opportunity to discover and remedy it before Plaintiff’s accident. Plaintiff was not able to point to anything in the record which shows that Defendant had any indication of a wet spot prior to the accident. The Court found that there was nothing from which it could infer that Defendant was aware of the condition prior to the accident, nor that Defendant was aware of the condition with sufficient time to remedy the condition as is required to find constructive notice.

5/13/21            Lyall v. Justin Boot Company
Appellate Division, Third Department
Retailer and product manufacturer prevailed on summary judgment based on evidence the boots in questions were not defective.
Plaintiff, a commercial logger, purchased a pair of logger boots from defendant Kenco Work & Safety Store, Inc. The boots were designed and manufactured by defendants Justin Boot Company and Chippewa Boot Company. While using a chainsaw to cut a tree, the chainsaw kicked back and cut through the vamp part of one of plaintiff's logger boots. Plaintiff filed suit alleging strict product liability. Justin and Chippewa moved for summary judgment dismissing Plaintiff, a commercial logger, purchased a pair of logger boots from defendant Kenco Work & the complaint. Kenco separately moved for similar relief. Plaintiff opposed both motions and cross-moved for partial summary judgment on the issue of liability. Supreme Court granted defendants’ motions and denied plaintiff's cross motion. Plaintiff appealed.

Plaintiff’s primary claim was that the logger boots lacked protection from chainsaw cuts and were not reasonably safe and fit for their intended purpose, thus defectively designed. The designer of the logger boots in question testified at his deposition that the defining factor of a logger boot is its height and the shape of its heel. According to the designer, the higher heel of the logger boot was intended to help the wearer walk in the woods, step on underbrush and avoid tripping. Some logger boots had Kevlar, but it was only in the laces. The designer stated that the logger boots passed an impact test per federal requirements and was not designed to have chainsaw cut resistance or Kevlar in the vamp. In his affidavit, the designer averred that the logger boots conformed to the applicable industry standard, which did not require that the boots be cut resistant or contain Kevlar. The foregoing established that the logger boots, as designed, were reasonably safe for their intended use. Accordingly, the claims were correctly dismissed.
5/19/21            Collins v. Delaware Avenue Enterprises, Inc.
Appellate Division, Second Department
Judgment of lower court upheld because defendant established it maintained its premises in a safe condition and plaintiff failed to raise a triable issue of fact.
Plaintiff brought this an action to appeal an order from the Supreme Court granting Defendant’s motion for summary judgment dismissing Plaintiff’s complaint. In September 2015, Plaintiff was seated inside a building owned by Defendant when a motor vehicle crashed through the front window and struck Plaintiff, injuring him.
On appeal, the Court noted that New York law has established a property owner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition but has no legal duty to protect against an occurrence that is extraordinary and not one which a reasonably careful and prudent person should be guarded against. The Court further noted courts have held that no duty will be imposed on a defendant to prevent a third party from causing harm to another unless the intervening act causing the plaintiff’s injuries was a foreseeable consequence of defendant’s negligence. The Court upheld the Supreme Court’s decision, finding that Defendant had established, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have a duty to protect against the unforeseen intervening conduct of the nonparty driver. The Court also found that Plaintiff failed to raise a triable issue of fact.

6/8/21  Astupina v. West Farms Square Housing Development Fund Corp., et. al.
Appellate Division, First Department
Court reversed Supreme Court’s decision denying Defendants’ motion for summary judgment in negligent security lawsuit.
Plaintiff brought an action to recover for damages she allegedly incurred when she was assaulted by a masked, hooded man in the corridor leading to her apartment inside a building owned and managed by Defendants. Plaintiff alleged that the building’s front door lock was broken for some time prior to the incident and that the building had a side door that was propped open during the day. On appeal, the Court noted that case law has established that a defendant seeking summary judgment in a negligent security case may meet its initial burden by presenting evidence that the locks to the building’s exterior entrances, as well as an intercom system, were operable at the time of the assault. The Court further noted that after a defendant meets its initial burden, the plaintiff must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance. The Court held that Defendants had met their initial burden by establishing that the building’s front and side door locks were operable on the day of the incident, that they had no notice of any problems in the building prior to the incident, and that the area around the building was calm and not dangerous. The Court further determined that Plaintiff failed to raise an issue of fact that the assailant was an intruder who gained access to the building through a negligently maintained entrance, thus failing to raise an issue of fact sufficient to defeat Defendants’ motion. Absent evidence from which a jury could conclude, without pure speculation, that the assailant was an intruder and not a tenant or invitee, the Court found that no triable issue of fact existed and granted Defendants’ motion,


School District and Municipal Liability 
By: Anastasia M. McCarthy [email protected]

It has been a busy few weeks for the McCarthy household! After a weekend trip to visit my family in the Finger Lakes two weeks ago, we spent this last weekend enjoying Buffalo. Josie took her first trip to the Buffalo Zoo (really, really, really into the polar bears) and spent much of the weekend in the pool.  On Saturday, friends from Rochester (including two pugs, Truman and Frankie) came to visit. It has been extremely comforting to get back to the world. 
This month’s column is short, highlighting a single case from the Second Department.  In the spirit of the summer months, this case involves an outdoor activity you wouldn’t expect to see at an elementary school-ziplining. 

June 2, 2021    Genova v. Town of Clarkstown
New York Appellate Division, Second Department
A zipline accident during recess.
Plaintiff, an elementary school student, was injured when she fell from a zipline during recess.  In the personal injury action that followed, plaintiff sought compensation for the District’s alleged negligent supervision of its students. The District eventually moved for summary judgment (which was granted by the trial court), however the Second Department reversed the lower court decision and held that questions of fact existed about the adequacy of the instructions the District provided to students using the zipline.  Indeed, the Court stated that adequately instructing students about the safe use of playground equipment is merely a piece of the District’s duty to adequately supervise its students and that in this particular case, the District failed to eliminate questions of fact about the adequacy of its instructions about using the zipline.  The Court drew particular attention to an allegation that school employees allowed, or instructed, students that they could give one another a “head start push” across the zipline and determined that the District failed to address whether such an instruction was given or was appropriate.


New York Discovery and Litigation Angles
By: Marc A. Schulz [email protected]

Greetings Subscribers!
Although our game last week was rained out, H&F’s softball team is off to a great start at 2-1. We have had great support for the team so far, and we hope to award our fans by achieving our goal of making the playoffs. This month, I report on the Ramirez case, which reminds us that if you ignore your discovery obligations, even by leaving the country to attend the death of a family member, you invite motions for sanctions and even summary judgment dismissing your case. Remember that you need a reasonable excuse for failing to comply with one’s discovery obligations. If you are working through a discovery motion and want to discuss your issue, please drop us a note as we are available for webinars or training or just to help you work through your discovery “situations.”
Until next time…
05/10/21          Miranda v Hanover Riv. House Inc.
Appellate Division, First Department
Plaintiff was not entitled to post-note of issue discovery for failing to seek the discovery sought at an earlier time and for failing to meet her burden of showing that additional depositions are material and necessary to her claims.
The trial court denied plaintiff’s motion to vacate or extend the note of issue and to compel further discovery. Decedent passed away after falling out of a fifth-floor window of a cooperative duplex apartment building during the course of his employment as a window washer. At that time, he was employed by third-party defendant Aerial Window.
The First Department unanimously affirmed, finding the trial court exercised its discretion in a provident manner in declining to vacate the note of issue or permit post-note of issue discovery because of plaintiff’s failure to seek the discovery at an earlier time. The record also showed that plaintiff has a history of not complying with court-ordered discovery obligations.
The court further noted that plaintiff did not meet her burden of showing that additional depositions are material and necessary. Plaintiff merely stated that the deposition of Aerial Window’s principal owner was necessary because of his position in the company and knowledge concerning the safety equipment the employees used. However, the court held plaintiff failed to show that the deposition testimony of Aerial Window’s former employee and coworker of Decedent was insufficient or inadequate. The court also did not abuse its discretion when declining to subpoena additional nonparty witnesses, given that plaintiff had knowledge of their identities since the start of this action. 
06/08/21          Ramirez v 2917 Grand Concourse
Appellate Division, First Department
Plaintiff leaving the country for the death of an unidentified family member, knowing her physical examination was scheduled and pending, did not constitute a reasonable excuse for her failure to comply with discovery, because she failed to make any effort to contact her counsel, and thus defendant was entitled to summary judgment dismissing plaintiff’s complaint.
The trial court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion to renew defendant’s motion that resulted in a January 2017 conditional order precluding plaintiff from introducing any evidence of injury.
In March of 2017, after plaintiff failed to appear for a physical examination, the conditional order of preclusion issued in January 2017 became self-executing (see Arts4All, Ltd. V Hancock, 54 AD3d 286, 286 [1st Dept 2008], aff’d 12 NY3d 846 [2009], cert denied 559 US 905 [2010]). Therefore, the First Department unanimously affirmed the trial court’s decision to grant defendant’s motion for summary judgment. Although the trial court should have heard plaintiff’s cross-motion for renewal, considering the administrative transfer of this matter and the fact that the cross-motion was inextricably intertwined with defendant’s summary judgment motion, such error is academic.
While styled as a motion to renew, the cross-motion was in actuality an untimely and unpersuasive motion to reargue. Plaintiff’s “new fact”, i.e. that she had left the country shortly before her last scheduled physical examination due to the death of an unidentified family member, was not a fact unknown to her at the time of defendant’s original motion seeking discovery sanctions. Plaintiff also admitted knowing that her physical was pending, and yet did not make any effort to remain in contact with her counsel. Thus, even if the motion were timely or her absence could be considered the basis for a motion to renew, that absence could not serve as a reasonable excuse for her failure to comply with discovery in the first instance.
Furthermore, plaintiff’s failure to respond to defendant’s CPLR § 3126 notice by filing a note of issue or making a motion to extend the discovery period, an issue the trial court did not address, would have warranted dismissal on those alternative grounds (see Bustamante v Green Door Realty, Corp., 158 AD3d 444 [1st Dept 2018]).  


Slip-and-Fall Law
By: Robert E.B. Hewitt III [email protected]

Welcome to another edition of my column in Premises Pointers. We have a good range of cases involving slip-and falls for you today.  They involve the insufficiency of an expert reviewing a photograph rather than the condition in person; the inability of a plaintiff to identify just what made her fall; a cleaning company making the lobby of a building wet; and a storm-in-progress defense.
Until next time,

June 3, 2021   Tobola v. 123 Wash., LLC
Appellate Division, First Department
Owner of property could not win on summary as it had a nondelegable duty to keep property safe.

Plaintiff alleges he was walking through the fifth-floor lobby of the W New York Downtown Hotel, located at 123 Albany Street in Manhattan, where he was staying, when he slipped and fell on a puddle of water and cleaning solution that had been poured onto the black marble tile floor by a housekeeper. Defendant 123 Washington owned the building and leased the premises to defendant W Hotel, and defendant Starwood Hotel & Resorts Worldwide, LLC was operating the hotel out of the premises. 123 Washington contracted with defendant Town House to clean the accident location, and Town House's employee, nonparty Juan Burgos, was cleaning the lobby floor when plaintiff fell. Plaintiff alleged that Burgos poured a large amount of cleaning solution onto the lobby's floor without barricading the location to prevent hotel guests from entering the area while he was cleaning, failed to place down safety mats to provide people with a safe passage through the area while the floor was wet, and failed to post appropriate warning signs.
There is video surveillance footage of the accident; no party disputes that the floor was dry when plaintiff first walked through the area to enter the restroom and that it was wet when he returned about five minutes later.
Plaintiff was awarded partial summary judgment as against Town House, the outside cleaning contractor, since the evidence showed that Town House's employee launched a force or instrument of harm by negligently mopping or leaving a puddle of water near the guest elevators in the lobby before plaintiff's fall. Triable issues of fact exist as to whether 123 Washington or W Hotel had actual or constructive notice that there was a wet and slippery condition on their lobby floor.
123 Washington and H Hotel were held not to be entitled to summary judgment because, as owner and lessee of the premises, they had a nondelegable duty to maintain the public areas of the hotel in reasonably safe condition and can be held vicariously liable for any negligence on the part of Town House that caused the lobby floor to become unsafe.

June 2, 2021   Berry v. Rockville Centre UFSD
Appellate Division, Second Department
Plaintiff could not succeed on her premises liability case as she could not identify what made her fall.

The plaintiff Lisa Berry (hereinafter the injured plaintiff) alleges that she slipped and fell at premises owned by the defendant. The injured plaintiff, and her husband suing derivatively, commenced this action, inter alia, to recover damages for personal injuries.  The Appellate Division held that the defendant met its initial burden on its motion by demonstrating that the injured plaintiff did not know what caused her to fall, which was fatal to her cause of action, because a finding that the defendant's negligence, if any, proximately caused her injuries would be based on speculation. In opposition, the plaintiffs failed to raise a triable issue of fact.

June 2, 2021   Genova v. Town of Clarkstown Central School District
Appellate Division, Second Department
School’s motion for summary judgment must be denied where issue whether school properly instructed child on how to use zip line and allowed other children to give push.

C. G., an infant, allegedly was injured during recess when she fell off a zip line at her elementary school.  Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  

A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.  The duty to provide adequate supervision includes the duty to instruct students as to the safe use of playground equipment. The Appellate Division held that the defendants' submissions failed to eliminate triable issues of fact as to whether C. G. was adequately instructed on the safe use of the zip line prior to her fall and whether the instruction that students were allowed to have another student "give them a head start push" across the zip line was appropriate.

May 27, 2021 Eduardo v. Webster Equities LLC
Appellate Division, First Department
Defendant’s affidavit established that they were not required to remove snow and ice from the sidewalk until after plaintiff fell.

Plaintiff was injured when he slipped and fell on snow on the sidewalk in front of defendants' building. Defendants moved for summary judgment arguing that a storm was in progress, and under Administrative Code of the City of New York § 16-123(a), they had four hours to clear snow following the cessation of any snowfall, and the time to clear snow and ice was suspended between the hours of 9:00 p.m. and 7:00 a.m. In support, defendants submitted an affidavit from a meteorologist who interpreted certified meteorological data from LaGuardia Airport, Central Park Observatory, and other locations and averred that, as relevant here, snow fell in the vicinity of the accident from 9:00 a.m. to 6:35 p.m. on February 15, 2016; then snow, sleet, and freezing rain fell between 6:35 p.m. to 7:50 p.m.; and then from 7:50 p.m. to 11:50 p.m., freezing rain, sleet, and rain fell.

The Appellate Division held the motion court properly granted defendants' motion for summary judgment. Defendants' expert affidavit established that defendants were not required to remove snow and ice from the sidewalk until after plaintiff's fall. Plaintiff fails to articulate a basis to reject defendants' expert's affidavit.
Plaintiff concedes that the meteorological records establish that snow fell until approximately 8:00 p.m. on the evening before his accident. Thus, under Administrative Code of City of NY § 16-123(a), defendants were not required to remove snow and ice from the sidewalk until 10:00 a.m. on February 16, 2016, hours after plaintiff's fall. Plaintiff cannot rely on his own testimony or the testimony of his cousin to raise an issue of fact, as neither could remember whether it had snowed on February 15, 2016.
Defendants also satisfied their prima facie burden of demonstrating that they did not cause or contribute to the hazardous condition of the sidewalk that caused plaintiff's fall. To raise a triable issue of fact, plaintiff was required to offer some basis from which it could reasonably be inferred that the snow on which he slipped was the result of a negligent attempt by defendants to remove the snow. Plaintiff argued that his cousin's testimony that he and another individual piled snow on the sidewalk near the curb, and that he saw plaintiff kneeling near the curb after the accident supports the inference that defendants negligently piled snow near the curb, causing plaintiff to slip on that snow. That argument, however, was speculative and insufficient to defeat defendants' motion for summary judgment.
May 13, 2021 Wong v. 15 Monroe Realty Inc.
Appellate Division, First Department
Plaintiff’s expert opinion was speculative as expert did not examine steps at issue as it was found to be speculative.

Defendant established prima facie that it was not liable for the injuries plaintiff sustained in falling down stairs by submitting plaintiff's testimony that his foot slipped because of the smoothness of the step as a worn marble tread, without more, is not an actionable defect according to the case law. Plaintiff testified that there was no debris, liquid, or anything else on the step that caused him to slip. In opposition, the Appellate Division held plaintiff failed to raise an issue of fact. His expert's unaffirmed report was found to be speculative, as the expert did not personally inspect the step at issue but merely examined undated, unauthenticated photographs of it. The expert's opinion that the cause of plaintiff's fall was the worn condition of the center of the step, along with inadequate lighting, was also held to be speculative because plaintiff was unable to identify the part of the step on which his foot slipped and he never testified that poor lighting contributed to his fall. The expert's opinion that defendant violated certain provisions of the Multiple Dwelling Law was not properly considered, because plaintiff raised no such claims in his bill of particulars.



Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]

Welcome to Pushing Buttons: The Ups & Downs of Vertical Transportation Law.  This is my column in Premises Pointers.  I look forward to bringing you updates and pointers on recent elevator and escalator decisions across New York State.  

If you need a little more hoppiness in your life, read on.  A new scientific study suggests that a gene defect in some bunnies may cause them to perform handstands rather than hop.  Saltatorial locomotion is a type of hopping gait found in rabbits and other mammals.  According to PLOS Genetics (a peer-reviewed scientific journal), a strain of domesticated rabbits, the sauteur d’Alfort, exhibit an abnormal gait where they walk on their front legs.  The study found that a recessive mutation present in this specific domestic rabbit, disrupts its normal hopping gait causing them to perform handstands.  There is probably a rabbit joke here, but it won’t be very bunny.  
Hopping over to vertical transportation cases this month, we have two new decisions to discuss.  In the first, an Order of the Supreme Court, New York County, granting summary judgment to Defendants, was unanimously reversed due to Defendants’ failure to comply with local Court rules.  In the second, Plaintiff’s employer moved to renew the denial of its summary judgment motion.  A motion to renew respectfully asks the court to review facts not offered on the prior motion or review a change in the law that would change the prior determination.  (See CPLR § 2221(e)(2).)  Summary Judgment was granted upon renewal. 
I hope you enjoy the ride. 

5/11/2021  Amezquita v. RCPI Landmark Properties, LLC, et. al. 
Appellate Division, First Department
Granting of Summary Judgment unanimously reversed due to Defendants’ fatal error.

Plaintiff alleged that the manual freight elevator she was operating suddenly stopped moving causing injuries.  Surveillance footage of the incident purportedly revealed that Plaintiff failed to fully close the elevator car’s (the “Elevator”) scissor gate (the “Gate”).  Defendants moved for summary judgment contending Plaintiff was the sole proximate cause of her injuries.  
In support of their motion, Defendants submitted an affidavit by an expert professional engineer who reviewed the surveillance footage and still images extracted therefrom.  Defendants’ expert opined that Plaintiff failed to close the Gate, which opened while the Elevator was in flight, triggering the Elevator’s sudden stop.  Summary Judgment was granted.  Plaintiff appealed.  
On appeal, the First Department reversed the Supreme Court’s decision, denying Defendants’ motion.  Defendants failed to submit the video footage on which their expert relied.  Instead, Defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.”  However, New York County e-filing protocols require parties who wish to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk on how to submit such exhibits.  (See Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases Supreme Court, New York County, § B[10] [rev. Aug. 15, 2019]; see also 22 N.Y.C.R.R. §§ 202.5b[d][7]; 202.5-bb[a][1].)  The Court held that the video was not part of the record and could not be reviewed or considered.  
Absent the video, the record evidence did not establish that Plaintiff was the sole proximate cause of her injuries.  The photographs submitted were insufficient to show that the Gate did not fully close due to Plaintiff’s effort as opposed to a defect in the Gate or Elevator preventing the Gate from staying closed.  
In an age of evolving technology, this decision reminds practitioners of the importance of continuing learning education.  It also acts as a reminder to check all local court rules and protocols to ensure compliance.  Here, Defendants’ failure to comply with all applicable local Court rules proved fatal.  Lesson learned.  

6/3/2021  Torres-Cabrera v. 237 West 54 Owner, LLC, et. al. 
Supreme Court Bronx County
Employer’s motion for summary judgment granted upon renewal motion.
On June 29, 2016, Plaintiff, an employee of Third-Party Defendant USA Labor For Hire Inc. (“Labor”), was allegedly injured in an elevator (the “Elevator”) located at 237 West 54th Street, New York, New York (the “Building”), when the Elevator rapidly descended 23 floors (the “Incident”).  The Building was owned and managed by Defendant 237 West 54 Owner LLC (“Owner”).  The Building’s elevators, including the Elevator, were maintained by Defendant Nobel Elevator Company, Inc. (collectively, “Defendants”).  Labor provided cleaning services for the Building.  
Labor previously moved to dismiss the common law indemnification claim, based on the absence of a “grave injury” as defined by the Workers’ Compensation Laws.  Labor’s motion was denied with leave to renew.  Labor now moves pursuant to CPLR 2221, renewing its motion for summary judgment seeking to dismiss all common law claims against it.  
In support of its motion, Labor submitted Plaintiff’s workers’ compensation employer verification, a 2016 written contract between Labor and Owner, Plaintiff’s W-2 for 2015 and 2016, a workers’ compensation lien letter, a copy of the workers’ compensation insurance policy, and an affidavit from a claims adjuster.  In opposition, Defendants argued that Labor failed to meet the requirements of Workers’ Compensation Law § 11 by failing to show that Plaintiff was an employee.  
The Supreme Court held that the documentary evidence and affidavit submitted by Labor established a prima facie showing that Plaintiff was an employee at the time of the Incident.  Absent an express indemnification agreement, or a “grave injury” as defined by the Workers’ Compensation Law, an employer’s liability for an employee’s injury is limited to workers’ compensation benefits.  (See Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490 [2004].)  The Court confirmed that Plaintiff’s injuries did not rise to the level of a “grave injury” as defined in the Workers’ Compensation Law. 
Defendants failed to present any material issues of fact that could defeat the motion.  It was undisputed that Wesco Insurance was paying benefits for the Incident on behalf of Labor under its workers’ compensation insurance policy.  Since Plaintiff was receiving benefits on behalf of Labor, there was no basis for Defendants’ third-party common law claims against the employer. 

Secondly, Owner failed to demonstrate that the motion was premature.  Owner’s contention that further discovery may yield some evidence of fault on Labor’s part was speculative.  The mere hope that a party might be able to uncover some evidence during discovery is insufficient to deny summary judgment as premature.  (See Costaneda v. DO & CO N.Y. Catering, Inc., 144 A.D.3d 407 [1st Dep’t 2016].)  Motion granted. 

Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Rob E. Hewitt
[email protected]

Scott D. Kagan
[email protected]


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