Premises Pointers - Volume V, No. 11

Volume V, No. 11 Thursday, April 28, 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.

NOTE FROM THE EDITOR: We hope that April showers—and snow—bring May flowers in Buffalo! This past weekend had temperatures near 80 for us, although just a few days before it seemed more like winter and later this week they are predicting snow! I will though remain optimistic for good weather to return and for the continued return to in-person events, conferences, court appearances and summer.   This month, we welcome Litigation Attorney Tom Narducci to our Melville office. Tom focuses his practice in premises liability, automotive liability, labor law, and general liability insurance defense, and he is a welcome addition to our growing downstate team!   In litigation victories, Hurwitz & Fine was recently published in The Harmonie’s Group's annual significant cases publication, which featured four of our litigation attorneys:

  • V. Christopher Potenza – Claim against plaintiff as an insured third-party defendant dismissed with prejudice during trial
  • Andrea Schillaci and Anastasia McCarthy – Court overturned trial court's denial of school district's motion for summary judgement
  • Brian M. Webb – Summary Judgement to defense and "Serious Injury Threshold" affirmed

To download the publication, and for more significant cases, click here.   This month in cases, see a summary of the Wright v. Target decision, which was a win for the Hurwitz & Fine Retail, Restaurant and Hospitality team at the firm, and a win of course for our client. Happy to answer any questions about the decision or our strategy. Take care and Happy Spring! Jody 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]

This month we are writing about a case handled here at Hurwitz & Fine by our Retail, Restaurant and Hospitality Team. We successfully moved for summary judgment on the grounds our retail client did not have notice of the wet floor plaintiff claims caused her to fall. See below for a summary and happy to get a good result for our client!     4/8/22              Wright v. Target Corp. United States District Court, Western District of New York Court granted defendant’s motion for summary judgment because plaintiff failed to prove that defendant had notice of the allegedly wet floor on which she fell.   Plaintiff commenced an action to recover for injuries she allegedly suffered as the result of slipping and falling on a metal grate just inside the automatic doors at a Target store. Plaintiff claims that upon entering the store and stepping on the metal grate (similar to an air vent) she fell. She did not see or observe any water on the floor or grate before the fall or after. However, she claims her clothes were wet after the fall, which she assumes came from the ground. She also claimed that caution cones in the front of the store demonstrated that the retailer had notice of the wet floor condition. Defendant filed a motion for summary judgment arguing that there was no evidence that it created or had actual or constructive notice of the hazardous condition which caused Plaintiff’s fall.   Rule 56 of the Federal Rules of Civil Procedure does not require a defendant to provide evidence demonstrating its lack of notice; rather, a defendant can establish a lack of evidence concerning actual notice and creation of the dangerous condition. Here, the Court found that Defendant had satisfied its burden by pointing to an absence of evidence supporting Plaintiff’s claims that Defendant created or had actual notice of the alleged condition. The Court further found that Plaintiff failed to raise a triable issue of fact regarding whether Defendant created or had actual knowledge of the alleged dangerous condition.   Turning next to the issue of constructive notice, the Court noted that federal law has established that the plaintiff bears the burden of demonstrating notice to the defendant on a motion for summary judgment. Plaintiff must present proof that the alleged condition was visible and apparent for a sufficient amount of time for a defendant to discover and remedy it. Here, the Court determined that Plaintiff failed to provide sufficient evidence that the floor was wet before her fall or that it had been wet long enough for Defendant to have notice of it.     4/13/22            Clark v. Stop & Shop Supermarket Company, LLC Appellate Division, 2nd Department Court upheld Supreme Court’s decision to deny defendant’s motion for summary judgment, finding defendant failed to meet its prima facie burden on the issue of constructive notice of the spilled oil on the aisle.   Plaintiff brought an action to recover damages for personal injuries she claimed to have sustained when she slipped and fell on oil in an aisle in Defendant’s store. Defendant filed a motion for summary judgment, which the Supreme Court denied.   On appeal, the Court noted that, as the moving party, the defendant had the burden of showing it did not create the hazardous condition which caused plaintiff’s accident and did not have actual or constructive notice of that condition. To meet the burden with regard to constructive notice, a defendant must offer evidence as to when the site of the accident was last cleaned or inspected prior to the plaintiff’s accident. Here, the defendant submitted conflicting evidence and failed to meet its burden as the moving party.

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

 

Dear Readers, The sun is finally shining in Buffalo, which is certainly welcome after several weeks of rain and snow. This month we bring you two cases that directly touch on questions we are frequently asked:   (1) Who can be sued in a § 1983 lawsuit?   (2) How much video surveillance should we maintain and for how long? April 7, 2022     Siyu Yang, Lu Yang v. Eastman School of Music, University at Rochester, et al. United States Court of Appeals, Second Circuit (Case available upon request). The Second Circuit affirms dismissal of pro se civil rights action by Eastman School of Music student (and his father) who posted racially denigrating statements on social media. Plaintiffs, a father and son proceeding pro se, appealed to the Second Circuit after the Trial Court dismissed their Complaints, in their entireties, against the Defendants. In controversy was the University’s decision to rescind Siyu Yang’s admission to the Eastman School of Music after Siyu “made statements denigrating a racial group” on social media. In response, Siyu and his parents filed a lawsuit against the University and its administrators, alleging that rescinding admission in response to the online post violated Plaintiffs’ First and Fourteenth Amendment Rights, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provisions of the New York State constitution, state defamation law, the Universal Declaration of Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The Western District dismissed the action in its entirety and an appeal was taken. As a preliminary issue, the Second Circuit addressed the pure justiciability question of Lu Yang’s right to commence suit, in his individual capacity, for an injury sustained exclusively by his adult son. While recognizing that a parent might naturally be distressed and angered by the “perceived mistreatment of [their] child,” the Court went on to hold that “federal law does not authorize lawsuits [arising from] distress by legal wrongs done to others.” The Court then affirmed the dismissal of the constitutional/§1983 claims, pointing out that no state actors were actually involved in the conduct in question. Indeed, since the University (and its employees) are private actors, the Plaintiff needed to plausibly allege that the University’s actions were in concert with some state actor. Plaintiff argued that this pleading burden was established with an allegation that the University receives federal funding, however, the Court found that argument unavailing: “a private entity does not become a state actor for purposes of § 1983 merely on the basis of the private entity's creation, funding, licensing, or regulation by the government.” Instead, Plaintiff needed to plausibly allege a close nexus between the state and the actions in controversy such that the state could be deemed responsible for the conduct. The Second Circuit also upheld the District Court’s determination that Plaintiffs failed to plausibly allege a claim under Title VI because Plaintiff alleged no facts showing that the rescinding of his admission was based on race, color, or national origin; that rescinding admission was a form of intentional, discriminatory conduct; nor that discrimination was a substantial or motivating factor in Defendants’ actions. To the contrary, Plaintiff’s Complaint stated that Siyu’s admission was rescinded because of a social media post by the Plaintiff (and because Eastman was motivated by financial involvement in the Chinese Community Party), not because of a hostile animus against Asians or Chinese nationals. April 20, 2022 A.W.S. et al. v. Southampton Union Free School District United States District Court, Eastern District of New York (Case available upon request). Attempts to secure spoliation-related sanctions fail where movant unable to establish prejudice or conscious destruction of evidence (or conscious failure to preserve). The District Court was asked to consider Plaintiffs’ objections of the Report and Recommendation of a Magistrate Judge, which recommended denying Plaintiffs’ motion for spoliation-related sanctions (specifically, Plaintiffs moved to strike the Defendant’s affirmative defenses and/or Answer). Plaintiffs filed a personal injury lawsuit on behalf of their infant-child, alleging that A.W.S., a first grader, was injured during recess on January 31, 2018, when he fell off of a fireman’s pole at recess. Plaintiffs repeatedly stated (in pre-suit correspondence, in their pleadings, and in their discovery demands) that the incident occurred on January 31, 2018 between 11:03 A.M. and 11:33 A.M. This timeline was later changed to allege an occurrence between 11:30-11:50 A.M. As part of their initial disclosures, Defendant provided a copy of its video surveillance, which contained three minutes and twenty five seconds of footage time stamped between 11:03 AM and 11:33 AM on the date of loss. Plaintiffs subsequently moved to strike Defendant’s Answer and affirmative defenses, arguing that the disclosure was insufficient and that the Defendant had clearly spoiliated evidence. Although the Magistrate Judge initially deferred the motion, she did Order Defendant “to provide an affidavit from someone with first-hand knowledge of the situation explaining in detail [1] why the video footage provided spans only three minutes and twenty-five seconds as distinct from the thirty minutes of the video's represented run time and [2] why it does not fully encompass the recess period from 11:30 AM to 11:50 AM,” which the parties have acknowledged as the true recess period. Two sworn affidavits were subsequently submitted, which in pertinent part explained (1) that the video recording system on campus is activated and begins recording only upon the detection of motion in the vicinity of the camera and (2) that Defendant’s pulled the limited footage available based on the numerous communications by the Plaintiffs that identified the incident as occurring between 11:03-11:33. By the time the Plaintiffs altered their timeline, any and all remaining surveillance from the date in question would have been deleted pursuant to the District’s retention policy. After receiving the Affidavits, the Plaintiffs renewed their prior motion to strike, which the Magistrate Judge recommended that the District Court deny. Plaintiffs objected. A number of issues arising from the Magistrate’s Report & Recommendation were addressed by the District Court Judge, including in pertinent part:

  • The District Court Judge overruled Plaintiffs’ objection to the Magistrate’s conclusion that Rule 37(e) displaces a Magistrate’s inherent authority to impose sanctions for the spoliation of electronically stored information. Indeed, the District Court stated that, even if the Magistrate’s understanding of Rule 37(e) was in error, Plaintiffs failed to provide any legal basis for the Court, outside of the Rule 37(e) context, to exercise the authority otherwise inherent to the Court. The Court went on to state: “As the movant, Plaintiffs bear the burden of persuasion, and an argument's shell absent its substance is not persuasive.” Even in asserting their Objections “Plaintiffs make the same fatal mistake[.] They provide zero argument explaining why, if Rule 37 sanctions are denied, this Court should nevertheless sanction Defendant pursuant to its inherent authority.”
  • The duty to preserve evidence arises when a party knows, or should know, that the evidence may be relevant to future litigation. In this case, such a duty arose, at the very latest, upon Defendants’ receipt of the litigation hold letter (two months after the incident).
  • Plaintiffs failed to demonstrate that they were prejudiced by the “missing” surveillance footage because they failed to establish a “ ‘likelihood that the destroyed evidence would have been of the nature alleged’ ” – i.e., that the “missing” footage would have shown “that A.W.S. was injured on the playground outside on January 31, 2018.”

Rule 37(e) “leaves judges with discretion to determine how best to assess prejudice in particular cases.” Such discretion requires the Court to consider whether the movant offers “independent, circumstantial evidence that the [purportedly spoliated evidence] would have shown what [the movant] claims it showed.” “It is sufficient if the existing evidence plausibly ‘suggests’ that the spoliated [electronically stored information] could support the moving party's case.” In this particular case, the Report & Recommendation stated that the circumstantial evidence advanced by Plaintiffs did not support their argument that the destroyed video would have shown A.W.S. being injured. First, the R&R pointed to a letter from A.W.S.’s father, which set forth an entirely different date of injury from the date of the recording in question. Second, the Court determined that Plaintiff’s argument that Defendant purposefully “committed a cover up” of video showing the injury was “unlikely” in light of the Defendant’s Affidavits, which averred “[w]hen I viewed the video footage, I saw that there was no outdoor recess and the playground was covered with snow,” (2) the video evidence itself, reflected an unoccupied snowy playground between, as relevant here, 11:30 AM and 11:33 AM on January 31, 2018, and (3) because Defendant’s expert's sworn testimony supported the observations of the the weather conditions between 11:30 AM to 11:50 AM. The District Court Judge also disagreed with Plaintiffs’ additional argument that the Report and Recommendation itself would unfairly prejudice future motions for summary judgment, Daubert motions and motions in limine because of the statement that the missing footage was unlikely to contain footage of the incident. Specifically, the District Court pointed out that the R&R contains no findings of fact and, more importantly, that the different standards governing the decision(s) of different motions would not even require consideration of the R&R’s finding that the video was not likely to show the injury occurring. For example, the summary judgment standard would not even permit the Court to comment on what the video “likely” would show “because that finding improperly weighs the evidence.”

  • Finally, the R&R concluded that the Defendant did not consciously destroy, or through a conscious dereliction of a known duty, fail to preserve electronic data. In the Affidavits provided subsequent to the Magistrate Judge’s initial Order, the District explained how the recording system works (the recording function is not constant, but is motion activated) and the limited footage available was the result of the actual design of the system. Moreover, Plaintiffs repeatedly stated (in their hold letter, claim letter, pleadings and discovery demands) that the incident occurred between 11:10 and 11:30, which was the time period for which available recorded footage was produced. By the time the Plaintiff refocused on their alternative time period (11:30 AM to 11:50 AM), the video had been deleted per the District’s video retention policy.
  • Ultimately, Rule 37 allows sanctions if the splitting party “not merely [intended] to perform an act that destroys [electronically stored information] but rather [intended] to actually deprive another party of evidence.” The District Court held, de novo, that Defendants rebutted, with sufficient evidence, any inference that it intentionally sought to deprive Plaintiffs of evidence or acted unreasonably.

Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected]

Hello Subscribers!

I am back from paternity leave after the birth of my first child and my family’s first grandchild, so life is good (but do not ask about sleep). Send me an email if you’re interested in baby pictures as there are plenty, but you have to ask.

For this edition, I report on several interesting discovery cases, including one where the court granted defendant’s motion to strike the complaint based on a conditional order of preclusion. A condition order of preclusion requires a party to provide specific discovery by a date certain or face the sanctions specified in the order. Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute. To successfully oppose a motion to enforce a conditional order, “the defaulting party must demonstrate that (1) a reasonable excuse for the failure to produce the requested [discovery] and (2) the existence of a meritorious claim or defense.” I am eager to hear from our readers about your experiences with conditional orders of preclusion, so please give me a shout.

Until next issue, stay safe …

Marc  

02/09/22 Sansone v Syracuse Univ. Appellate Division, Second Department Defendant entitled to dismissal of plaintiff’s complaint because plaintiff failed to comply with the trial court’s conditional order of preclusion.

The trial court granted defendants’ motion to preclude plaintiff from taking defendant’s deposition and thereafter granted defendant’s motion, pursuant to CPLR § 3126, to strike the complaint based on a conditional order of preclusion.

Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR § 3126 are matters within the sound discretion of the trial court. When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court’s discretion to strike or dismiss a pleading. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with the discovery demands is willful or contumacious. Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

The Second Department affirmed the striking of plaintiff’s complaint because plaintiff repeatedly violated the trial court’s discovery orders, failing to provide timely and complete responses to defendant’s amended interrogatories, requests for bill of particulars, and health and employment authorizations, without offering any reasonable excuse for the significant delay in compliance. Plaintiff violated two court orders directing plaintiff to appear for a deposition on a date certain, one of which warned in bold face print that a “FAILURE TO STRICTLY COMPLY WITH THIS ORDER, WITHOUT LEAVE OF THE COURT, WILL RESULT IN PRECLUSION, THE STRIKING OF A PLEADING AND/OR SANCTIONS AS MAY BE APPROPRIATE.

As a result of plaintiff’s failure to appear for court-ordered deposition on a date certain, the failure to seek leave of the court to adjourn the deposition, and the failure to comply with the conditional order of preclusion, the trial court providently exercised its discretion in granting defendant’s motion to strike.  

03/10/22 Blumenthal v 1979 Marcus Ave. Assoc., LLC Appellate Division, Second Department Plaintiff not entitled to amend her bill of particulars to assert a new injury and a new theory of liability eight months after filing the note of issue and certificate of readiness.

Plaintiff tripped while exiting a parking garage doorway on defendant’s property. Her bill of particulars alleged that as a result of her fall, she sustained a fractured elbow and sprained knee. She testified at her deposition that her fall occurred after her right foot became caught in the crack in the sidewalk ramp, and that, while the lighting conditions in the area were “dim,” she was able to see the ground in front of her. She further testified that she began treating with a rheumatologist for pain “[a]ll over [her] body” and was diagnosed with fibromyalgia, which her doctor told her could have been the result of trauma.

The Second Department affirmed the trial court’s denial of plaintiff’s motion for leave to amend her bill of particulars. Plaintiff failed to provide a sufficient explanation for the delay in moving for leave to amend her bill of particulars to allege a new injury eight months after she filed the note of issue and certificate of readiness. Moreover, the medical records plaintiff relied on to support her proposed amendment lacked merit, as the records were expressly limited to mere conclusory statements relating the injury to the accident.

Where a plaintiff seeks to allege new theories of liability on the eve of trial, “the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom.” Here, the factual circumstances alleged in the proposed amendment had been known to plaintiff well before discovery had been completed and the note of issue served, but she failed to provide a reasonable excuse for her delay in seeking the amendment, which the court also found prejudicial to defendant. Accordingly, the trial court properly denied plaintiff’s motion to amend her bill of particulars.

 

03/30/22 Kemp v 1000 Broadway, LLC Appellate Division, Second Department Plaintiff’s motion to preclude defendants from offering video surveillance footage of plaintiff at trial denied due to plaintiff’s failure to submit 22 NYCRR 202.7(a)(2)’s required affirmation of good faith.

The trial court denied plaintiff’s CPLR § 3126 motion to preclude defendants from offering video surveillance footage of plaintiff at her trip and fall trial. Pursuant to 22 NYCRR 202.7(a)(2), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting “that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” In this case, plaintiff failed to submit an affirmation of good faith indicating that efforts had been made to resolve the CPLR § 3101(i) related discovery issue prior to engaging in motion practice. Therefore, the trial court properly denied plaintiff’s motion.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law By: Scott D. Kagan [email protected] A recent study by the University of Bonn (published in the Journal of Scientific Reports) revealed that cichlids and stingrays can perform simple addition and subtraction.  The study doesn’t explain why these animals require math abilities.  Nonetheless, the study found that cichlids and stingrays can detect small quantities precisely and calculate.  The study further taught the sea creatures to perform simple mathematics, requiring them to increase or decrease the initial value by one.  The study confirms that humans underestimate other animal species, particularly those that are not mammals.           I hope you enjoy the ride.    Scott 3/15/2022                  Berkovich v. Judlau Contracting, Inc, et al. Appellate Division, First Department Plaintiff need not identify a specific product defect in a products liability cause of action.   Plaintiff, Albert Berkovich (“Plaintiff”), was injured when working on an escalator at the South Ferry Subway station in Manhattan.  While working in the escalator’s (the “Escalator”) pit at the base of the Escalator, the Escalator began moving at a high rate of speed without warning and without intentional human intervention.  The Escalator caught Plaintiff’s right foot in the mechanism, causing injuries requiring amputation of a portion of his leg.    Defendants moved to compel Plaintiff to supplement his responses to their interrogatories.  Specifically, Defendants requested that Plaintiff be required to supplement responses identifying the Escalator’s alleged defects.  Defendants’ motion was denied, and Defendants appealed.   “It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect.”  Ramos v. Howard Indus., Inc., 10 N.Y.3d 218, 223 (2008).  In the absence of evidence identifying a specific defect, Plaintiff is required to prove two elements: (1) that the product did not perform as intended; and (2) exclude all other causes for the product’s failure that are not attributable to the defendants.  Id.  If a plaintiff is unable to prove both elements, “a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw.  Id. (quoting Speller v. Sears, Roebuck & Co.¸100 N.Y.2d 38, 42 (2003).   Here, Plaintiff’s interrogatory responses identified several alleged design defects.  However, Plaintiff failed to identify a cause for the unexpected start of the Escalator.  Plaintiff’s response (“[t]he software, circuity, controller or other componentry allowed the inadvertent, unexpected and unintended movement of [the] escalator, without the activation of the key 'start-stop station”), did not specify the defect which allegedly caused the Escalatory to unexpectedly start.  Instead, Plaintiff asserted that he could not pinpoint the defective component that allowed the Escalator’s sudden start without warning.  Where a plaintiff “presently lacks the knowledge” to identify the nature of the defect, Plaintiff can testify to that under oath.  Cornachio v. General Motors Corp., 63 A.D.2d 941, 941 (1st Dep’t 1978).  If a plaintiff acquires the pertinent information, he would be under an obligation to promptly supplement his responses to interrogatories.  Id.   Affirmed. 

     Slip and Fall Law for All Seasons By: Aarti Chandan [email protected]

 

Dear Readers, I may have spoken too soon in my last column. While the middle of March may have felt like spring had “sprung”, the weather in Buffalo as of late has me worried that we’re heading for another winter in stead of summer. Here’s hoping for consistent warm weather in the coming weeks! With that being said, in this month’s edition of “Storm in Progress”, I will discuss two cases: one out of the Fourth Department and one out of the Second Department. In Quinones v. Mariner Housing Development Company, Inc., the Appellate Court reversed the lower court’s denial of Defendants’ motion for summary judgment, finding that they established their entitlement to judgment as a matter of law on their storm in progress affirmative defense. In Canciani v. Stop & Shop Supermarket Company, LLC, the Appellate Court affirmed the lower court’s denial of summary judgment, finding that Defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule.   3/18/22            Quinones v. Mariner Housing Development Company, Inc. Fourth Department reverses lower court’s denial of Defendants’ motion for summary judgment dismissing the complaint Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained when Plaintiff Quinones slipped and fell on ice on the sidewalk in front of a building owned by Defendants. Plaintiffs alleged Defendants negligently maintained the property in that they failed to clear snow and ice from the sidewalk that day. Defendants moved for summary judgment dismissing the complaint, contending that the “storm in progress” rule applied. Under the aptly named storm-in-progress doctrine, the landowner's duty to address slippery conditions caused by snow or ice is suspended while the storm is in progress and for a reasonable time after it has ceased. Here, (1) Defendants established there was an ongoing lake effect snowstorm at the time of the incident, (2) Plaintiffs failed to prove the storm ended a sufficient length of time before the incident, and (3) Plaintiffs failed to prove the slippery condition was preexisting and could not have formed during the storm. The Appellate Court agreed with Defendants that they established their entitlement to judgment as a matter of law on their storm in progress affirmative defense, and therefore reversed the lower court’s finding.     3/23/22            Canciani v. Stop & Shop Supermarket Company, LLC Second Department affirms lower court’s denial of Defendant’s motion for summary judgment dismissing the complaint Plaintiff commenced this action to recover damages for personal injuries allegedly sustained after falling in the parking lot of a store operated by Defendant Stop & Shop Company. Defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted those branches of the defendants’ separate motions. Plaintiff appealed. Under the storm in progress rule, 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 an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm. Here, RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value. Additionally, the Court held that RGP’s assertion that it met its prima facie burden by demonstrating that it lacked actual or constructive notice of the alleged dangerous condition, raised for the first time on appeal, was not properly before the Court. Since RGP failed to meet its prima facie burden, the Supreme Court should have denied that branch of its motion for summary judgment dismissing the complaint. The Court reversed the lower court’s granting of Defendant’s summary judgment motion dismissing the complaint.

NEWSLETTER EDITOR Jody E. Briandi [email protected] ASSISTANT EDITORS Anastasia M. McCarthy [email protected] Marc A. Schulz [email protected] Scott D. Kagan [email protected] Lani J. Brandon [email protected] Aarti Chandan [email protected]

 

Hurwitz & Fine, P.C.   Buffalo 1300 Liberty Building, Buffalo, NY 14202 Phone: 716-849-8900, Fax: 716-855-0874              Long Island 575 Broad Hollow Road, Melville, NY 11747 Phone: 631-465-0700, Fax: 631-465-0313 Albany 518-641-0398 Additional Offices Albion | Amherst | Connecticut | Niagara Falls | Rochester | Palm Beach Gardens | Toronto   Hurwitz & Fine, P.C. is a corporate and defense litigation law firm providing legal services throughout the State of New York   www.hurwitzfine.com © 2022, Hurwitz & Fine, P.C. All Rights Reserved

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