Premises Pointers - Volume V, No. 10


Volume V, No. 10
Friday, March 18, 2022
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.




Happy (day after) St. Patrick’s Day and (day before) St. Joseph’s Day! Hope you are all enjoying some holiday celebrations. We celebrated at the office yesterday with a potluck lunch – the first since before Covid! There are more firsts in store this weekend here in Buffalo – our St. Patrick’s Day Parade is returning on Sunday and we have the NCAA Men’s Basketball Tournament. It's great to see this shift and a nice way to start the spring!
Last week, I attended FDCC’s Winter Meeting in Palm Desert, California. It was a busy week with great programming, keynote speakers and networking with friends and colleagues. I had the chance to speak on an esteemed panel of speakers on the topic of Law Firm Management. I also had the pleasure of being present when my partner, Dan D. Kohane, was awarded the FDCC Lifetime Achievement Award. Each year, the FDCC recognizes one of its members who has become a legal leader in their community as well as a highly contributing member of the Federation. This award is given to one attorney per year who goes above and beyond as a leader in the law and whose reputation and influence transcends their legal career. It was a wonderful recognition for Dan!
Lastly, our attorneys have been busy writing articles on a number of current and interesting topics. The following are worth a read.

Be well,

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. 

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 and Lani J. Brandon 

3/16/22            Edwards v. Raymour & Flanigan Properties, LLC
Appellate Division, 2nd Department
Court upheld Supreme Court’s decision to deny Defendant’s motion for summary judgment because Plaintiff’s evidence in opposition raised triable issues of fact regarding his fall over carpet.
Plaintiff sued to recover for personal injuries he sustained when he allegedly tripped and fell over a rolled-up carpet on the floor of one of Defendant’s stores. Defendants filed a motion for summary judgment, which the Supreme Court denied.
In support of their motion, Defendants submitted excerpts of deposition testimony transcripts of Plaintiff and the store manager which demonstrated that they maintained the premises in a reasonably safe condition. In opposition, Plaintiff submitted the complete transcripts of both his testimony and the store manager’s testimony. These complete transcripts raised triable issues of fact as to where in the store Plaintiff’s accident occurred, what he actually tripped and fell on, and whether Defendants had constructive notice of the alleged unsafe condition.

3/3/22              Emerson v. KPH Healthcare Services, Inc., et al.
Appellate Division, 3rd Department
Court upheld Supreme Court’s decision to grant Defendant’s motion for summary judgment, finding Defendant was entitled to indemnification from third-party defendant for Plaintiff’s slip and fall in a slushy parking lot.
Plaintiff sued to recover damages for personal injuries she claimed to have sustained when she slipped and fell on slush and ice in the parking lot of a Kinney Drugs which was leased and operated by Defendant KPH Healthcare Services, Inc. (hereinafter, “KPH”). KPH commenced a third-party action against Parry’s Services, LLC (hereinafter, “Parry”), alleging it was entitled to contribution and/or indemnification. KPH and Parry had entered into an agreement in which Parry agreed to perform property maintenance, including snow and ice removal, at the premises during the time period in which Plaintiff was injured. KPH moved for summary judgment on its third-party claim for indemnification, arguing that it was entitled to both contractual and common-law indemnification. Parry cross-moved for summary judgment, and the Supreme Court granted KPH’s motion and denied Parry’s cross-motion. Parry appealed.
The Appellate Court noted that, in the agreement between KPH and Parry, Parry committed to indemnify KPH “against any and all losses, liabilities, damages, actions, demands, claims, costs and expenses, including reasonable legal fees and expenses, arising out of or in connection with any claims for injuries or death to persons ... arising from or claimed to arise from [Parry] performing services under [the agreement's] terms.” New York  State case law has established that a party is entitled to indemnification where the plain meaning of the words includes the liability for that party’s active negligence. Here, the language in the agreement indemnifies KPH as long as the claim arose out of the services performed by Parry, meaning that KPH was not required to demonstrate the absence of its own negligence before invoking the indemnity clause. The Court further stated that, reading the agreement as a whole and affording its unambiguous provisions their plain meaning, Parry agreed to salt and sand the parking lot whenever such was required to ensure customer safety, and that obligation was not dependent upon snowfall totals.
The Court found that Plaintiff’s claim arose from Parry performing its salting and sanding obligation and that KPH had properly established that Plaintiff was not allegedly injured by a condition that Parry had no reason to know about, but rather by a recurring condition that Parry was aware of and had previously addressed.

2/23/22            Messina v. Morton Village Realty, Inc.
Appellate Division, 2nd Department
Court reversed Supreme Court’s decision granting Defendants’ motion for summary judgment because Defendants failed to establish they did not create the alleged condition which caused Plaintiff’s fall on an icy sidewalk.
Plaintiff allegedly sustained personal injuries when he slipped on ice while walking on a sidewalk behind the pizzeria where he worked, named Mr. Joe’s Pizzeria “& Ristorante (hereinafter, “Mr. Joe’s”). Mr. Joe’s was owned by third-party defendant Ruago, LLC, which was owned, in part, by third-party defendant Michael Ruggiero. Ruago, LLC, leased the space for the restaurant from the owner of the subject premises, defendant third-party plaintiff Morton Village Realty, Inc. (hereinafter, “Morton”). Defendant third-party plaintiff Phillips International Realty, Inc. (hereinafter, “Phillips”), was the managing agent for the premises. After Plaintiff’s accident, he commenced an action against Defendants Morton and Phillips (hereinafter, “Defendants”), who commenced a third-party action against several parties, including Mr. Joe’s, Ruago, and Ruggerio. Defendants moved for summary judgment dismissing the complaint, for leave to amend the third-party complaint to assert a cause of action to recover damages for breach of contract, and for summary judgment on the third-party complaint. The Supreme Court granted that branch of Defendants’ motion which was for summary judgment dismissing the complaint and denied those branches of Defendants’ motion which were for leave to amend the third-party complaint and for summary judgment on the third-party complaint. The plaintiff appealed.
On appeal, the Court noted that, while Defendants demonstrated, prima facie, that they did not have actual or constructive notice of the icy condition on the sidewalk behind the pizzeria, New York State case law has established that the prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings. Plaintiff asserted in his bill of particulars that the defendants were negligent in failing to maintain the premises, failing to repair the dangerous and defective condition, and in allowing an icy condition to exist. In a supplemental bill of particulars, Plaintiff further alleged that Defendants created the dangerous condition that caused him to slip and fall by permitting the downspouts from the roof of the premises to deposit water directly onto the sidewalk, and that Defendants had also violated various property maintenance codes. Due to these allegations, Defendants were also required to demonstrate that they did not create the alleged dangerous condition.
The Court found that Defendants failed to establish that the subject drains played no role in the creation or exacerbation of the icy condition that allegedly caused the accident and that they failed to demonstrate that they did not have constructive notice of the allegedly defective downspouts. As a result of their failure to meet their prima facie burden, the Court determined that the Supreme Court should have denied their motion.


School District & Municipal Liability

By: Anastasia M. McCarthy

Dear Readers,
Two years ago, the month of March caused the entire world to grind to a halt. I distinctly remember sitting at my kitchen table every morning at 6 AM, trying desperately to place an Instacart order. This year couldn’t be more different and we are busier than ever.  Although I certainly miss the March/April 2020 commute, I am so happy to be back to normal.  We are now back, in the office, full-time.  Please feel free to call us any time!

March 8, 2022             Sayers v. Niagara Falls City School District
U.S. District Court, Western District of New York
*Available upon request.

Motion to dismiss discrimination claims and constitutional violations granted in case involving District residency policy.
Plaintiff’s employment as a tenured teacher in the District was terminated after she was found to be non-compliant with a District’s residency policy that required employees in the District to become residents of the City of Niagara Falls and maintain their actual, principal domicile in the City during their employment.  After the termination of her employment, plaintiff filed a civil lawsuit, alleging that she had been discriminated against on the basis of sex, age, and disability status and that her constitutional rights to due process and freedom of association had been violated by the District.

On a motion to dismiss the District argued, among other things, (1) that plaintiff’s discrimination claims failed because she did not allege that she was complaint with the residency policy and therefore qualified for ongoing employment; (2) that plaintiff failed to allege any facts forming a nexus between the termination and any type of discriminatory intent; (3) that plaintiff received all process she was due; (4) and that plaintiff did not allege that the residency policy directly and substantially interfered with her right to participate in a constitutionally protected relationship.

In his Report & Recommendation, the Magistrate Judge initially considering the motion to dismiss “found that all [Plaintiff’s] claims hinged on whether the complaint [pled] facts sufficient to show that [Plaintiff] was qualified for continued employment”; that Plaintiff would not be entitled to relief on her discrimination claims if she could not plausibly allege that she was qualified for her employment; and that if Plaintiff were not qualified for her employment, she could not be seen to have a property interest in her continued employment. After filing objections, the District Court Judge agreed with the Magistrate that plaintiff’s Complaint failed to set forth any viable claim.

With respect to her discrimination claims, plaintiff’s Complaint failed to set forth any facts from which it could be even minimally inferred that the termination of employment was motivated by discrimination of any kind. Instead, the allegations of the pleading actually cut directly against any discriminatory motivation since the Complaint clearly states that the termination was the result of plaintiff’s non-compliance with the District’s residency policy.

Similarly, with respect to her claims arising under the Americans with Disabilities Act, the District Court Judge agreed with the Magistrate and held that plaintiff’s Complaint failed to allege a disability within he meaning of the ADA (which requires fact allegations from which it could be inferred that plaintiff suffers a condition that substantially limits her ability to perform any major life activities) or that she suffered an adverse action because of that disability.
With respect to the plaintiff’s due process claim, the District Court Judge disagreed with the Magistrate’s holding that Plaintiff failed to show a property interest in her tenured employment, but still agreed that the claim should be dismissed because the plaintiff otherwise failed to establish that she was deprived of any process she was due (in fact, the few facts alleged in the Complaint and the facts advanced by the District directly contradicted such an allegation and established that plaintiff was given advance notice and an opportunity to be heard).
Finally, the District Court also agreed that plaintiff failed to state a claim that the residency policy interfered with her right to freedom of association. Indeed, the Complaint was devoid of any allegations from which the Court could infer that the policy, or its application, had the likely effect of ending any protected relationship. Plaintiff also failed to allege that the policy is arbitrary or an undue intrusion into a protected relationship.
February 23, 2022       S.B. As PNG of A.B., New Central School District et al.
U.S. District Court, Western District of New York
*Available upon request.

Allegations sufficient to establish actual notice of employee’s propensity to sexually harass for purposes of pre-Answer motion to dismiss in sexual tort case.
Plaintiff’s father commenced an action on her behalf alleging that a teaching assistant in the District elicited pornographic photographs from the infant plaintiff by pretending to be a 14 year old boy on Snapchat. When the infant plaintiff initially refused, the assistant threatened her and stated that he knew where she lived.  The infant plaintiff relented and sent the assistant a photo. The assistant then blackmailed the infant plaintiff, using a number of fake online identities, to obtain additional images.  The infant plaintiff was eventually informed, by law enforcement, of her harasser’s true identity.
In July of 2020, a criminal complaint against the teaching assistant was filed and he ultimately pled guilty to possession of child pornography, which included images he directly obtained from minors over social media and that he obtained by surreptitiously recording minors in a number of off-campus bathrooms.
In a civil complaint against the District, its administrators, and its Board of Education, the plaintiffs alleged that the defendants had actual notice of the teaching assistant’s criminal and abnormal conduct but failed to conduct a proper investigation and otherwise ignored various warnings. As proof of notice, plaintiffs pointed to a counseling memo and reports made directly to school personnel by other building staff, students, and the infant plaintiff herself.
Plaintiffs’ civil suit alleged claims against:  the assistant (18 U.S.C. § 2255, Masha’s Law and assault); against the Board of Education and District (violations of Title IX, 20 U.S.C. § 1681(a), and 42 U.S.C. § 1983, and state law claims for negligent hiring/retention, negligent supervision, and intentional misrepresentation); and against the District, Board, assistant, and various administrators (negligence/gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress).  Defendants then filed a motion to dismiss—the following is a brief summary of the arguments and advanced and the Court’s holding:  

  • The Court denied the motion to dismiss the claim arising under Masha’s Law.  Masha’s Law is a statute enacted in connection with the Child Abuse Victims’ Rights Act of 1986 and specifically allows victims of child sexual exploitation to commence a civil action under federal law. Defendants argued that the Court lacked subject matter jurisdiction (a 12(b)(1) motion to dismiss) of this particular cause of action because Masha’s Law requires the distribution of child pornography over the internet or through interstate dissemination.  The Court held that the argument was meritless—not only was Masha’s Law intended to provide broad, civil relief for the victims of child pornography, but the Complaint clearly stated that the assistant coerced the infant plaintiff, over social media, to provide him with sexually explicit photographs. Such activity is sufficient to invoke jurisdiction.
  • The Court denied the motion to dismiss plaintiffs’ claims against the individual defendants.  Defendants argued that the Complaint fails to satisfy Federal Rule of Civil Procedure 8 (dealing with pleading requirements) because the Complaint did not separately allege the claims against each individual defendant (instead, the Complaint referred to the defendants collectively). The Court disagreed and held that the Complaint contained sufficient factual allegations identifying the specific conduct of each person such that the theories of liability advanced against each defendant were sufficiently clear.  
  • The Court denied the motion to dismiss plaintiffs’ Title IX claim.  Defendants argued that plaintiffs failed to allege facts showing that the defendants had actual knowledge the infant plaintiff was being harassed and extorted online and that the only notice they received of such conduct was their notice of the assistant’s arrest. 

    Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  A school may be subject to liability under Title IX if it is deliberately indifferent to the sexual harassment of a student that is so severe and objectively offensive that it deprives the student of educational opportunities (and where it can be shown that the school had actual notice of such harassment).

    The Court rejected the defendants’ argument, stating that the plaintiffs alleged that the defendants were aware of complaints about the assistant’s inappropriate and objectively offensive harassing behavior around female students as early as 2014, but failed to do anything about it.
  • The motion to dismiss plaintiffs’ § 1983 claim was also denied. The Court held instead that plaintiffs sufficiently alleged that the District engaged in an official policy or tolerance of a custom that resulted in the deprivation of constitutionally protected right(s) despite having actual notice of the assistant’s propensity for inappropriate and unlawful harassing conduct with female students. 
  • The motion to dismiss plaintiffs’ negligence claims was also denied, with the Court finding that the plaintiffs sufficiently pled facts supporting a theory that the defendants owed the plaintiff a duty of adequate supervision her but breached that duty when defendants failed to respond to actual complaints about the assistant’s inappropriate and harassing behavior.
  • The Court granted the motion to dismiss plaintiff’s intentional infliction of emotional distress, negligent infliction of emotional distress, and intentional misrepresentation (deemed abandoned) claims with prejudice, finding that the plaintiff did not and could not allege facts sufficient to support them.


Pushing Buttons: The Ups & Downs of Vertical Transportation Law

By: Scott D. Kagan [email protected]

Octopuses living off the coast of California are breeding faster than expected.  In 2018, scientists working off the coast of California discovered thousands of deep-sea octopuses, naming the site the Octopus Garden.  At the 2022 Ocean Sciences Meeting, researchers identified that the octopuses were laying their eggs near geothermal springs, which speeds up embryonic development.  Per, only a few marine animals (i.e., icefish), are known to seek out warmer conditions when breeding.  Researchers believe that these deep-sea octopuses are “exploiting that thermal energy to improve reproductive success.”  It is believed that this exponentially decreases the period of parental care. 
We haven’t seen many escalator cases of late.  This month, a patron at a baseball game died from injuries sustained on a stationary escalator.  The Second Department reviewed whether a stationary escalator is inherently dangerous.    
I hope you enjoy the ride. 

3/9/2022                  Narainasami v. City of New York, et al.
Appellate Division, Second Department
Stationary escalator is not inherently dangerous.
On April 15, 2008, Antonio Narainasami ("Decedent") attended a New York Mets game at Shea Stadium (the "Stadium").  After the Seventh Inning, the Stadium escalators were turned off and barricades were placed to prevent Stadium patrons from walking down Stadium escalators.  It was Stadium policy to have all patrons exit via walk ramps.  Decedent chose to exit by descending a stopped escalator (the "Escalator").  While descending, the Decedent fell over the handrail approximately 50 feet and died (the "Incident").  
An action was commenced against the City of New York, Queens Ballpark Company, LLC, Sterling Mets, L.P., Sterling Mets, L.P. d/b/a New York Mets and Sterling Equities (collectively, "Defendants").  The Complaint sought to recover damages for Decedent's conscious pain and suffering, expenses, and derivative damages.  Defendants moved for summary judgment.  Motion granted and Plaintiff appealed.  
Where members of the public are invited onto premises, the owner has "a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress."  Cox v. 118 E. 60th Owners, Inc., 189 A.D.3d 1169, 1170 (2d Dep’t 2020) (quoting Backiel v. Citibank, 299 A.D.2d 504, 505 (2d Dep’t 2002); see Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 557 (1968); see also Bynum v. Keber, 135 A.D.3d 1066, 1067 (3d Dep’t 2016).
Despite this basic duty, "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous."  Sneed v. Fulton Park Four Assoc., L.P., 192 A.D.3d 1058, 1059 (2d Dep’t 2021); see Masker v. Smith, 188 A.D.3d 867, 868 (2d Dep’t 2020).  The Second Department (agreeing with the First Department) held hat a stationary escalator, without more, is not inherently dangerous.  See Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558 (1st Dep’t 2010) (internal citations omitted).  
Defendants proffered evidence that the Escalator was in good working order at the time of the Incident.  The Escalator complied with applicable statutes and regulations.  In opposition, Plaintiff failed to identify any evidence demonstrating that Defendants failed to take reasonable steps to guard against reasonably foreseeable dangers posed by the stopped escalator.  Maheshwari v. City of N.Y., 2 N.Y.3d 288, 294 (2004).   
The Court reasoned that while there was evidence that the barricade may have been moved, it was "difficult to understand what measures could have been undertaken to prevent [Decedent's] injury except presumably to have had a security officer posted at the precise location...[which is] surely an unreasonable burden."  Id. at 295 (quoting Florman v. City of N.Y., 293 A.D.2d 120, 127 (1st Dep’t 2002); see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d 590, 591 (2d Dep’t 2020).     
Here, Defendants demonstrated that by barricading the Escalator, directing patrons to exit via walk ramps with announcements and the use of security personnel, they complied with their duty.  


Slip and Fall Law for All Seasons
By: Aarti Chandan

Dear Readers,

Spring has finally sprung! I hope everyone enjoyed their St. Patrick’s Day and spent some time outside with friends and family.

In this month’s edition of “Storm in Progress”, I will discuss a case out of the Second Department in which the appellate court reversed the lower court’s granting of defendant’s motion for summary judgment dismissing the complaint. Here, the Court found that the Defendant did not meet its burden of demonstrating that the accumulation of ice was a result of a storm in progress.

3/17/22            Kelvin Stukes, appellant v. New York City Housing Authority, respondent
Second Department reverses the lower court’s granting of Defendant’s motion for summary judgment dismissing the complaint.
Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he slipped and fell on accumulated snow and ice on a walkway within a housing complex in Brooklyn owned by the Defendant. In the Plaintiff’s Bill of Particulars, he alleged he slipped on a “longstanding condition of ice.” Defendant moved for summary judgment dismissing the complaint, contending that the “storm in progress” rule applied.

Under the storm in progress doctrine, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until enough time has passed following the end of the storm to allow the owner to remedy the hazards caused by the storm.

Here, Defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress doctrine. The evidence submitted by the defendant failed to establish, prima facie, that the ice on which Plaintiff fell was the result of an ongoing storm, as opposed to the result of a prior snowfall. Because the Defendant failed to meet its initial burden, the Supreme Court should have denied the motion for summary judgment. As such, the Appellate Court reversed the lower court’s decision, denying Defendant’s motion for summary judgment dismissing the case.


Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]


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