Premises Pointers - Volume V, No. 12

Volume V, No. 12 Friday, May 27, 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: Happy Memorial Day weekend to everyone! Cheers to a sunny and warm weekend, though it’s a bit rainy here in downtown Buffalo today. This time every year, we welcome our summer law clerk class. This year, we have 4 law students from the University at Buffalo who are eager to learn, work and further expand their legal experience. Over the course of the summer, they will work with our attorneys across New York State and Connecticut on a wide range of projects, visit the courthouse to observe court proceedings, meet a sitting judge, and have lunch with yours truly as the Managing Partner of our firm.  They will also have an opportunity to contribute to our various firm newsletters while here this summer, so be on the lookout for their contributions. In other exciting news… Congratulations to Premises Pointers columnist Anastasia McCarthy, who welcomed her second child yesterday with wife, Anna. Elliot Alfred Francis McCarthy made his debut yesterday morning! Anastasia will be taking a hiatus from Premises Pointers this summer while spending some time with her newest addition. However, before starting her leave, she and attorney Michael J. Williams wrote about the Adult Survivor's Act, which you can read about below in her column. Should you have any questions about the CVA or now the Adult Survivor’s Act, feel free to reach out to Mike Williams or Anastasia when she returns. Now onto to our growing litigation team. We have added two talented lawyers – Elizabeth M. Midgley and Stephen M. Sorrels. Elizabeth M. Midgley has joined Hurwitz & Fine as a litigation member in the firm's Buffalo office. Liz focuses her practice in medical and dental malpractice, professional malpractice, legal professionalism and ethics, premises liability, motor vehicle accidents, railroad law, and general negligence litigation. Liz brings significant experience as a trial attorney defending, obtaining voluntary discontinuances for, and resolving numerous claims for her clients. She has tried or assisted in nearly three dozen trials in a variety of fields. Stephen M. Sorrels has joined Hurwitz & Fine as a litigation member in the firm's Buffalo office. Steve focuses his practice in medical and professional malpractice defense, nursing home litigation, municipal and governmental litigation, product liability, construction accidents, premises liability, school district liability and insurance defense litigation. He is an experienced trial and appellate attorney and has successfully prosecuted and defended legal actions in both New York State Courts and Federal Courts. The addition of Liz and Steve adds even more depth and experience to our litigation team and we are thrilled to welcome them to the firm. 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] 5/4/22                 Mikucka v. CVS Pharmacy et al. United States District Court, Eastern District of New York Court denied Defendants’ motion for summary judgment, finding a material issue of fact existed regarding whether the “stack holder” which Plaintiff tripped over was a dangerous condition, and granted Plaintiff’s motion on notice.  
Plaintiff sued CVS for injuries she allegedly sustained when she fell in an aisle in the store. While walking down an aisle, another customer with a stroller and two small children approached Plaintiff from the opposite direction. Plaintiff took two steps backward without looking behind her and, on the second step, hit a bulk stack holder (a black stacking cradle at the end of the aisle) with her left foot, lost her balance, and fell. Plaintiff claimed she did not see the bulk stack holder, which came up about six inches off the ground, when she was walking down the aisle, and that there was no product in the holder when she tripped over it. The store manager who approached Plaintiff immediately after the accident claimed she observed rolls of paper towels stacked on the bulk stack holder. Defendants removed the action to federal court and filed a motion for summary judgment, arguing that Plaintiff failed to prove they had breached any duty because the condition was open and obvious. Plaintiff moved for partial summary judgment on the issue of notice. The Court noted that there was a question of fact as to whether the bulk stack holder contained any product at the time of Plaintiff’s accident. The Court determined that the bulk stack holder, at only a few inches off the ground, would have been more difficult to observe with no product in it than if it did contain product, concluding that whether the condition was open and obvious was partially dependent on whether the holder contained product. Finding that there was a question of material fact as to whether the bulk stack holder was an open and obvious conclusion, the Court denied Defendants’ motion for summary judgment. Turning to Plaintiff’s motion on the issue of notice, the Court determined that it was undisputed both that Defendants were responsible for the placement of the bulk stack holder and that Defendants were aware that the holder encroached upon the aisle. Finding that Defendants created the condition, the Court granted Plaintiff’s motion for summary judgment on the issue of notice. 5/3/22                 Salinas v. Dorrian’s Restaurant Bar, et al. Appellate Division, 1st Department Court upheld Supreme Court’s decision denying Plaintiff’s motion for summary judgment because Plaintiff failed to demonstrate that Defendants’ negligence caused wood panel to fall and hit her on the head Plaintiff brought an action to recover for injuries she allegedly sustained in defendant’s restaurant when she was struck on the head by a plywood panel that came loose from a wall. She filed a motion for summary judgment, which the Supreme Court denied. On appeal, the Court determined the opinion of Plaintiff’s expert that the panel was improperly secured with a wood screw which caused it to detach from the wall was speculative, as it was based on a photograph from the night of the accident which merely showed a wood screw. The Court noted that the record was devoid of testimony and photographs demonstrating how the panel was affixed to the wall, nor were there photographs showing holes in the wall or panel where a screw would have been. Further, the Court determined Plaintiff failed to establish that Defendants were aware of the panel’s condition or that an inspection would have revealed the loose panel. The Court found that Plaintiff failed to establish, prima facie, that her injuries were caused by Defendants’ negligence.
School District & Municipal Liability By: Anastasia M. McCarthy Adult Survivors Act Signed Into Law by Governor Hochul

On May 24, 2022, Governor Kathy Hochul signed into law the Adult Survivors Act, which renews access to judicial relief for adult survivors of sexual assault.  In the State of New York, the current statute of limitations for filing a civil suit for rape is 20 years, while some forms of forcible sexual contact have only a 5-year statute of limitations.  The new law implements a one-year lookback window for individuals who were sexually assaulted as adults to file claims against their abusers, even if the statute of limitations has already expired. 

Governor Hochul’s official statement regarding the Adult Survivors Act may be accessed here.

The new law is patterned after the Child Victims Act, which, by the end of the lookback window in August 2021, resulted in nearly 11,000 civil actions being filed.  As with the Child Victims Act, the Adult Survivors Act provides survivors six months to determine if litigation is the right choice for them, investigate their claims, and consult with counsel prior to the commencement of the one-year lookback window. 

The lookback window allows these same individuals to sue the entity where the assault occurred, such as workplaces, schools or religious institutions.  Given the age of the claimants at the time of the alleged abuse, the universe of potential institutional defendants, as well as avenues for insurance coverage, may be quite different than the claims made under the CVA.  Such entities who suspect that they may become defendants would be well served to consider their document retention policies and how best to position themselves for litigation during this six-month period. 

Hurwitz & Fine represents local, national and international organizations—and individuals—in the defense of Child Victims Act cases, and anticipates that there will be a number of Adult Survivors Act cases brought in the near future.  Our insurance coverage team also helps guide insurers and institutional clients, alike, through the complex array of issues involving insurance coverage for abuse cases, including issues concerning lost or historical policies, late notice, policy towers, and other related coverage matters.

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

Hello Subscribers!

H&F’s annual softball season started last week, and my teammates did not hold back in letting me know I was the only batter who failed to get on base, going 0-3 with a groundout to the pitcher, routine flyball to centerfield, and a pop fly to the third baseman after swinging at balls. At least my ego wasn’t bruised or anything but on the plus side, if I keep failing to get on base, then hopefully I will no longer be asked to play (fingers crossed).

Courts are finally releasing more decisions and for this edition, I report on several cases involving motions to compel. Accordingly, I thought it good practice to reiterate the disclosure rules for discovery. In New York, a party is not entitled to unlimited, uncontrolled, and unfettered disclosure. CPLR § 3101(a) states“[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The essential test is usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court.

It is critically important that the moving party demonstrate that the records sought are relevant to the issues in controversy and are material and necessary to a claim or defense in the action, or else you risk losing the motion. If you have an interesting discovery issue or motion to compel, please reach out and share your experience.

Until next issue, stay safe …

Marc 04/27/22 Rrengo v New York City Tr. Autth. Appellate Division, Second Department Plaintiff not entitled to defendant bus driver’s disciplinary records, training manuals or trip logs, nor to inspect and photograph a similar bus to the one involved in the incident.

Plaintiff, while standing in a moving bus, was caused to fall allegedly because defendant’s bus driver abruptly applied the brakes. The trial court denied plaintiff’s motion to compel defendant to comply with certain discovery demands, including for disclosure of any disciplinary records for the bus driver arising from the subject incident, training manuals, and trip logs, and to inspect and photograph a similar bus to the one involved in the subject incident.

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employer’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover for negligent hiring and retention” (Trotman v New York City Tr. Auth., 168 AD2d 1116, 1117 [2d Dept 2020]). The Second Department affirmed the denial of plaintiff’s motion because defendant conceded the bus driver was acting within the scope of his employment when the incident occurred and plaintiff failed to establish that disclosure of disciplinary records arising from the incident will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, or that any disciplinary records arising from the incident were ever created. Plaintiff also failed to establish her entitlement to inspect and photograph a similar bus to the one involved in the incident or to bus logs regarding the driver’s previous trips on the bus route at issue. 05/03/22 Amato v Verizon N.Y. Inc. Appellate Division, First Department Defendant waived right to conduct further deposition of plaintiff and independent medical examination by its unreasonable delay in seeking it.

The trial court granted plaintiff’s motion to strike defendant’s answer or, in the alternative, to compel defendant to produce Delprete for deposition, seeking to preclude defendant from demanding plaintiff’s further deposition and independent medical examination, and denied defendant’s cross-motion for a protective order as well as defendant’s motion to reargue.

The First Department affirmed the trial court’s denial of defendant's cross-motion because the representatives already deposed were not present when the utility box that allegedly caused plaintiff’s injury was installed, and could not say with certainty, whether Delprete, defendant’s field manager, was present. There is also a substantial likelihood that Delprete would be able to provide material and necessary information.

The Court also held that plaintiff’s motion to compel was fatally defective because the accompanying good faith affirmation failed to detail any efforts to resolve the issue after the first round of depositions were completed, at which point the parties had been directed to reassess whether the Delprete deposition was still necessary.

However, plaintiff’s motion was properly granted insofar as it sought to preclude her further deposition and IME as defendant waived its right to that discovery by its unreasonable delay in seeking it. Although defendant blamed the COVID-19 pandemic for the delay or difficulty obtaining plaintiff’s medical records, the Court noted that defendant had the necessary release authorization long before the pandemic and for many months thereafter. 05/11/22 Fitzpatrick v Consolidated Resistance Co. of Am., Inc. Appellate Division, Second Department Defendant not entitled to records involving a prior MVA and stroke or union records where defendant failed to establish that those records were relevant to the issues in controversy and were material and necessary to the defense.

The trial court denied defendant’s motion to preclude plaintiffs from offering evidence at trial and to compel plaintiffs to provide authorizations for the release of certain records. The Second Department affirmed the trial court’s denial of defendant’s motion. Defendants were not entitled to authorizations for the release of plaintiff’s medical records relating to a prior automobile accident and stroke, which injuries are illnesses were not shown to be related to the subject incident. Thus, defendant failed to demonstrate that those records were relevant to the issues in controversy, and material and necessary to the defense. Defendant likewise failed to establish that plaintiff’s union records were material and necessary to the defense.

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

You can’t judge a book by its cover…or a dog by its breed?  Researchers reported in Science that dog breed explains only 9 percent of the behavioral differences between individual dogs.  The study reviewed the genetic information of over 2,000 dogs and paired the data with self-reported surveys from dog owners.  Owners were able to submit a saliva sample along with responses to the questionnaire via an open-source database (aptly) titled “Darwin’s Ark.”  The researchers combined the genetic and survey data to identify genes associated with particular traits.  The result?  Dog breed is a poor predictor of dog behavior.  Woof.  I hope you enjoy the ride.  Scott  

4/28/2022                  Luna v. Brodcom W. Dev. Co. LLC, et al. Appellate Division, First Department Labor Law 240(1) Claim Dismissed Where Elevator Operated as Intended.

Plaintiff’s Decedent, an elevator mechanic, sent the elevator (the “Elevator”) from the lobby to a floor above.  While the Elevator was stationed at the floor, Plaintiff’s Decedent entered the Elevator’s shaft at the lobby level (below the Elevator).  After the shaft doors closed, the call button was pressed and the elevator descended back to the lobby, crushing Plaintiff’s Decedent.  The parties agreed that the Elevator was working properly, in the “automatic” setting at the time of the incident. 

Defendants moved for summary judgment seeking to dismiss the Labor Law § 240(1) claim.  The Supreme Court denied Defendants’ motion and Defendants appealed. 

The First Department reversed dismissing the Labor Law § 240(1) claim because the Elevator did not “fall” as a result of the force of gravity as required.  Instead, the Elevator descended in automatic mode, as it was designed to do.  See Runner v. N.Y. Stock Exch., Inc., 13 N.Y.3d 599, 604 (2009); see also Nevins v. Essex Owners Corp., 276 A.D.2d 315, 317 (1st Dep’t 2000) lv. Denied 96 N.Y.2d 705 (2001) (elevator “sent into descent by [the] plaintiff himself…was not a falling object”).

Of import, the First Department distinguished matters where the elevator was working properly vs. instances where an elevator was not operating as intended.  See McCrea v. Arnlie Realty Co. LLC, 140 A.D.3d 427, 428 (1st Dep’t 2016) (finding § 240(1) liability where elevator was not operating normally and was not secured for purpose of repair work).  The distinction is important.  The question is not whether an elevator precipitously dropped, but whether it was supposed to do so at the time it caused injury. 


5/10/2022                  Dyer-Crewe v. Schindler Elev. Corp.   Appellate Division, First Department First Department Refuses to Grant Summary Judgment on Res Ipsa Allegation

Plaintiff was injured on a mis-leveled elevator (the “Elevator”) and filed a summary judgment motion on liability and alleged res ipsa loquitur.  Supreme Court granted Plaintiff’s motion and Defendant appealed. 

The First Department found multiple triable issues of fact.  Issues of fact included: (1) whether the mis-leveled Elevator presented a hazardous condition given the conflicting witness estimates on height differential (Munasca v. Morrison Mgt. LLC, 111 A.D.3d 564, 564 [1st Dep’t 2013]); and (2) conflicting evidence existed regarding notice of the alleged hazardous condition.  Under the circumstances, the Court found issues as to whether Defendant had knowledge of the alleged mis-leveling condition or whether it failed to exercise reasonable care to discovery and correct a condition which it ought to have found. 

Given the multiple triable issues of fact, the Court found the case was “not one of the ‘rarest of res ipsa loquitur cases’ where summary judgment is warranted.”  Morejon v. Rais Constr. Co.¸ 7 N.Y.3d 203, 209 (2006).

Motion denied. 

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

As we’re finally putting snow-filled days behind us, it seems appropriate to transition my column away from a focus on “storm in progress.” Now, I’ll be writing on recent slip-and-fall decisions throughout New York State.

This month, I’ll be discussing two cases out of the Second Department. In Weiss v. Bay Club, the Appellate Court reversed the lower court’s grant of Defendants’ motion for summary judgment. The Court found that Defendants failed to meet their prima facie burden of establishing that the plaintiff could not identify the cause of her fall, and they failed to show that defendants did not have notice of the alleged dangerous condition. In Clark v. Stop & Shop Supermarket Company, LLC, the Appellate Court affirmed the lower court’s denial of defendant’s motion for summary judgment, finding that they did not meet their prima facie burden of establishing that they did not have notice of the alleged dangerous condition.  

5/4/22 Weiss v. Bay Club Second Department reverses lower court’s grant of Defendants’ motion for summary judgment dismissing the complaint

Plaintiff commenced this action after she allegedly tripped and fell on a staircase in a passageway connecting two residential buildings. Plaintiff alleged that a defective condition on the staircase caused her fall. Defendants moved for summary judgment dismissing the complaint.

In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. Such a defendant may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of her or his fall without engaging in speculation.

Defendants submitted Plaintiff’s deposition testimony in which she testified that she fell because her foot caught on a step in which a portion of it was broken. Defendants also failed to submit evidence to demonstrate when the subject staircase was last inspected.

The Court held that, in light of the Plaintiff’s testimony, it could not be said that defendants established prima facia that the plaintiff was unable to identify the cause of her fall. Further, the Court held that, because Defendants failed to submit evidence to demonstrate when the staircase was last inspected, they failed to show, prima facie, that they did not have constructive notice of the condition that the plaintiff alleged caused her fall.

The Appellate Court held that, because defendants failed to meet their prima facie burden, the lower court should have denied their motion for summary judgment 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]
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