NOTE FROM THE EDITOR:
With summer well underway, it has been great to see the shift back to normal with in-person gatherings, events (such as major league baseball in downtown Buffalo!), vacations (I just returned from a lovely trip to Maine) and of course, practicing law. We are busier than ever with the trial calendars quickly filling up. It seems as though all of those cases not resolved during the pandemic are now headed to jury trials across New York State. Many of our litigation attorneys are getting ready as we speak, including Premises Pointers columnist Marc Schulz who will be trying a case in Poughkeepsie next week.
This month I am pleased to share the expansion of our Melville, New York office with the addition of attorney Cara M. Pascarella. She will be working in the Premises Liability, Products and Transportation Negligence practice groups. We are thrilled to have her with the firm!
I would also like to share a summary of my recent Business First Diversity, Equity and Inclusion panel held last month. Here is a link to the discussion. This was a wonderful opportunity to discuss diversity in the workplace with an esteemed panel of experts in the Buffalo business community. Here at Hurwitz & Fine, our overall DEI goals center around creating a welcoming work environment for people of all backgrounds, by being adaptable and intentional in our actions. While an easy formula, achieving results takes time, along with a multifaceted approach, centering on:
Company Mission and Core Principles – Making sure that your actions align with your messaging and embody your values as an organization.
Education –Training and education will continue to be a key part of a successful DEI program.
Leadership Buy-In – Having leadership lead the messaging and foster a company culture where every voice is welcome, heard, and respected.
Recruitment and Retention – Creating a long-term plan. Setting goals and include this in your company’s strategic plan. Casting a wider net and expanding the qualifications of what you’re looking for. In order to attract diverse candidates, it is important that jobseekers see themselves in your organization and in lateral and leadership roles.
Good luck with your own DEI initiatives!
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]
7/8/21 Farrell v. Ted’s Fish Fry, Inc.
Appellate Division, 3rd Department
Defendant granted summary judgment because brightly colored landing where Plaintiff fell did not constitute a dangerous or defective condition – it did not violate the building code, defendant had no notice of condition and plaintiff could not identify the cause of her fall.
Plaintiff brought an action to recover for personal injuries she claims to have sustained after she stepped off a deck and fell at a Ted’s Fish Fry restaurant. She alleges the deck and landing created a dangerous and defective condition which caused her fall, and that Defendants had actual and constructive notice of the condition. Defendants moved for summary judgment, which the Court granted.
In support of their motion, Defendants had submitted affidavits of Ted’s Fish Fry’s general manager and of property owner Bombay Realty Corporation’s co-president, in which they asserted they had no knowledge of, nor received any complaints about, anyone being injured or having fallen in the area where plaintiff fell. Defendants also submitted the affidavit of a professional engineer who opined that the landing was not defective or unsafe at the time of the accident and on the date of his inspection, that it complied with the applicable building code, and was reasonably safe on the date of plaintiff's accident. The Court found that, based on those submissions, Defendants had satisfied their initial burden with respect to creation or knowledge of a hazardous condition. Defendants also argued Plaintiff could not identify the cause of her fall, supported by her deposition testimony in which she stated she did not know what caused her to fall. Noting that evidence must be sufficient to permit a finding based on logical inferences from the record and not on speculation, the Court found that Defendants met their burden by showing that Plaintiff could not establish anything more than a possibility that Defendants’ negligence caused her fall.
In opposition to Defendants’ motion, Plaintiff argued that the drop from the landing to the ground, which lacked warning signs or visual cues, constituted a dangerous and defective condition. Noting the deck’s bright red landing depicted in photographs, the Court stated that the duty to warn does not extend to open and obvious dangers. Turning to the issue of a dangerous or defective condition, the Court found that the affirmation of Plaintiff’s attorney was insufficient to defeat the motion in the absence of an expert affidavit to rebut Defendants’ expert. Finding that Plaintiff failed to meet her burden to raise a triable issue of fact, the Court held that the Supreme Court had properly granted Defendants’ motion for summary judgment.
7/1/21 Saccenti v. Target Corporation
United States District Court, Eastern District of New York
Court dismissed Plaintiff’s claim arising for a slip and fall at retail store after Plaintiff failed to provide evidence of a hazardous condition which would raise a triable issue of fact.
Plaintiff sued to recover damages for personal injuries she allegedly sustained as the result of an incident in which she slipped and fell in Defendant’s store. Defendant filed a motion for summary judgment based on liability.
The Court found that there was no evidence of the existence of a dangerous condition, and that the record is undisputed that there was no puddle or visible hazard that could have caused Plaintiff to slip. Turning to the issue of whether Defendant created or knew of a hazardous condition, the Court noted that Plaintiff offered the testimony of an expert architect, which Defendant objected to on the grounds of Daubert. Plaintiff did not respond to Defendant’s Daubert point, and Plaintiff’s expert did not give any opinions that could reduce the speculative nature of the issue, nor could he form any conclusion about the condition of the floor where Plaintiff slipped. The Court noted that Plaintiff’s opposition focused on what Defendant had failed to prove, rather than provide evidence of the existence of a hazardous condition. Noting that case law has established the absence of evidence is not evidence of absence, the Court found that Plaintiff had failed to meet her burden to establish the existence of a triable issue of fact, and granted Defendant’s motion for summary judgment.
6/25/21 O’Neill v. Target Corporation
United States District Court, Eastern District of New York
Lawsuit removed to Federal Court remanded because Defendant failed to meet its burden of establishing the jurisdictional amount in controversy required to prove subject matter jurisdiction.
Plaintiff brought an action in the Nassau County Supreme Court to recover for personal injuries she allegedly sustained as the result of slipping and falling on liquid on the floor of one of Defendant’s stores. In her Complaint, she claimed the sum of her damages exceeded the monetary jurisdiction of all lower Courts which would otherwise have jurisdiction. At the request of Defendant, Plaintiff served her Bill of Particulars alleging she suffered serious and permanent injury to various body parts, a list of special damages and various medical-related expenses, and loss of earnings. Notably, the Bill of Particulars does not allege any specific amount of damages. Following service of Plaintiff’s Bill of Particulars, Target filed to remove the action to the United States District Court, Eastern Division, on the basis of diversity jurisdiction.
New York State case law has established that a district court has the authority to remand a case if it finds, at any time before final judgment, that it lacks subject matter jurisdiction. It is well settled that the removing party bears the burden of establishing that the amount in controversy exceeds the $75,000 jurisdictional threshold set by 28 U.S.C. § 1332(a), and that a case is not removable until a plaintiff serves the defendant with a document specifying the exact amount of monetary damages sought.
Referencing the generic statements contained in Plaintiff’s Complaint and Bill of Particulars, the Court noted that those allegations do not permit it to draw a reasonable inference, without speculation, that the damages or amount in controversy exceeds $75,000. Finding that Defendant failed to meet its burden of showing that the jurisdictional amount in controversy required for diversity jurisdiction had been satisfied, the Court held that the Notice of Removal was insufficient to support the exercise of federal subject-matter jurisdiction. The Court further stated that a defendant in a personal injury action may request, at any time, a supplemental demand from the plaintiff setting forth the total damages requested. The Court then remanded the case to the Supreme Court, citing lack of federal subject-matter jurisdiction.
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Summer is in full swing here in Buffalo, albeit a little rainier than usual. After avoiding the undefeated team last week due to a rainout, the office is buzzing because H&F’s softball team is 4-2 and in the playoff hunt with a huge game tomorrow! Hopefully, the write-up afterwards will be as entertaining as the game itself, just not at my expense.
Independent medical examinations (IMEs) are the topic this month, as I report on a Fourth Department case that correctly recognized the differences between a neuropsychological IME, neurological IME, and a neurosurgeon’s IME. It helped that defendant submitted an affidavit from his neuropsychological expert explaining to the court how his IME is different. I also report on a First Department case that held defendants were entitled to additional IMEs based on the newly disclosed injuries, including a neuropsychologist and an Alzheimer’s disease specialist. I’d be happy to hear your experiences with neuropsychological IMEs, just send me an email. Until next issue, stay safe and healthy…
06/11/21 Pasek v Catholic Health Sys., Inc.
Appellate Division, Fourth Department
Defendant entitled to protective order striking a notice to admit that requested improper admissions.
The trial court, as relevant here, granted defendants Colder’s motion for a protective order striking a notice to admit. The Fourth Department unanimously affirmed as the notice to admit requested improper admissions from Colder, and the court was not required to “prune” the notices by striking some of the requests and leaving others intact. “In view of the underlying purpose of the notice to admit, i.e., to eliminate from dispute those matters about which there can be no controversy, [the Court found] no abuse of discretion in the [trial court’s determination” (citing Voight v Savarino Constr. Corp., 94 AD3d 1574, 1575 [4th Dept 2012] [internal citations omitted])
06/11/21 Pokorski v FDA Logistics
Appellate Division, Fourth Department
Plaintiff not entitled to preclude defendant from conducting a neuropsychological examination, as it is material and necessary to defend against plaintiff’s claims that he sustained head and cognitive impairment.
Plaintiff allegedly sustained injuries when he slipped and fell on accumulated snow and ice on defendant’s property. The trial court granted plaintiff’s motion to preclude defendants from having a neuropsychological examination (NPE) of plaintiff on the grounds that the NPE would be cumulative of the other neurological examinations already conducted.
The Fourth Department unanimously reversed the trial court in favor of defendant and denied plaintiff’s motion. After filing a lawsuit, a defendant may require plaintiff to submit to a mental or physical examination pursuant to CPLR § 3121 if a plaintiff’s mental or physical condition is in controversy. There is no statutory restriction limiting the number of examinations to which a plaintiff may be subjected; however, a defendant seeking a further examination must demonstrate the necessity for it.
In this case, the Court agreed with defendant that the preclusion order is not warranted as the NPE is material and necessary to defend against plaintiff’s claims that he sustained head injuries and cognitive impairment. Plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bill of particulars, that he injured, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain … with related mental anguish, stress, and anxiety” as a result of the accident.
Defendant also submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychologist tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff’s alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities.
07/01/21 Samuelsen v Wollman Rink Operations, LLC
Appellate Division, First Department
Plaintiff permitted to amend her bill of particulars one year after filing the note of issue as she had a sufficient explanation for her delay and any prejudice to defendants is mitigated by additional discovery.
The trial court granted defendants’ motion to vacate the note of issue and preclude plaintiff from offering evidence of newly disclosed injuries at trial, or, in the alternative, to compel further discovery from plaintiff related to newly disclosed injuries to the extent of permitting one additional IME and granted plaintiff’s cross-motion for leave to file an amended bill of particulars.
The First Department unanimously modified the trial court’s decision by directing plaintiff to submit to additional IMEs with respect to her Alzheimer’s disease diagnosis and a further deposition limited to risk factors for that disease. Any prejudice to defendants from the late amendment is properly mitigated by additional discovery. The trial court also properly declined to preclude plaintiff’s newly disclosed experts from testifying at trial since plaintiff’s disclosures were timely, and rather than advancing new theories to support plaintiff’s case, the experts merely interpreted plaintiff’s cognitive deficits.
However, considering the newly disclosed interpretation of plaintiff’s cognitive deficits by a neuropsychologist and neuropsychiatrist, based on their personal examinations of plaintiff, that she suffered from early onset Alzheimer’s disease that may have been caused or accelerated by her traumatic brain injury, the court held that defendants are entitled to additional IMEs by defendant’s experts, a neuropsychologist and an Alzheimer’s disease specialist. The court also held defendants are entitled to a supplemental deposition limited to plaintiff’s claim of Alzheimer’s disease, and the risk factors that apply to her claim.
Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
Interesting news this month that could have major implications for life as we know it. Paleoanthropologists believe they have discovered a 146,000-year-old human skull. The skull, named Homo longi, or “Dragon Man” could replace Neanderthals as the closest relative to modern humans, Homo sapiens. The skull was named Dragon Man after the northern Chinese province where it was found, Heilongjiang, which translates to the “Black Dragon River.” Researchers believe that the Dragon Man skull, which differs from all other named Homo species, could change what we know of human evolution.
No evolutionary court decisions this month in New York; however, this month brings us two new elevator cases of interest. In the first, Plaintiff’s employer moved to dismiss the action pursuant to CPLR 3211(a)(1). A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence “utterly refutes” the plaintiff’s factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue. Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 865 (2002). In the second, the Court granted Defendants’ motion for summary judgment, where Plaintiff’s expert’s opinion was speculative, lacking in foundation, and conclusory. See e.g., Daconta v. Otis Elevator Company, 165 A.D.3d 753, 753, 85 N.Y.S.3d 528, 530 (2d Dep’t 2018) (internal citations omitted).
I hope you enjoy the ride.
6/14/2021 Winter v. Metropolitan Life Insurance Company, et. al.
Supreme Court, Bronx County
No issues of fact exist where an unexecuted contract contradicts a fully executed contract.
Plaintiff allegedly sustained injuries when the elevator he was operating (the “Elevator”), at 154 East 53rd Street, New York, New York (the “Premises”), fell five floors on July 20, 2015 (the “Incident”). Plaintiff was employed by Second Third-Party Defendant SP Plus Corporation (“SP Plus”). Plaintiff commenced the action against various defendants for Labor Law violations and common law negligence. One Defendant filed a third-party action against Centennial Elevator Industries (“Centennial”). Thereafter, Centennial filed a second third-party action against SP Plus.
SP Plus moved, pursuant to CPLR 3211(a)(1), to dismiss the second third-party complaint contending the action was barred by Workers’ Compensation Law § 11. SP Plus further argued that its contract with Centennial did not include indemnification language as required by § 11. In support of its motion, SP Plus submitted a contract dated June 12, 2015, between Centennial and Defendant Central Parking of New York Inc. (“Central Parking”) to provide elevator maintenance at the Premises (the “Contract”). The Contract’s indemnity provision only required Centennial to indemnify Central Parking.
In opposition, Centennial produced a prior agreement where SP Plus also agreed to indemnify Centennial. The prior contract which was unsigned dated May 12, 2015 (the “Unsigned Contract”), provided that Centennial was to perform maintenance of the Elevator at the Premises, and SP Plus was to hold harmless Centennial for injury related to work performed. Centennial argued that there was an issue of fact as to which contract governed at the time of the Incident.
The Court granted SP Plus’s motion reasoning that Centennial submitted opposition based “solely on an unsigned document that was not executed by any entity including Centennial.” The Court found no basis in law to enforce an unsigned document. Thus, the Contract governed.
Here, Centennial’s opposition did not dispute that SP Plus was Plaintiff’s employer and Centennial did not allege that Plaintiff suffered a grave injury. In addition, the Court concluded that the record revealed that SP Plus did not enter into a written contract prior to the Incident expressly agreeing to contribution or indemnification. Instead, the documentary evidence submitted by SP Plus established conclusively that Plaintiff was an employee on the date of Incident and filed for workers’ compensation benefits. Plaintiff’s workers’ compensation benefits were the exclusive remedy. Thus, Centennial failed to state a cause of action in the second third-party complaint.
As an aside, the Court addressed Centennial’s argument that the motion to dismiss was premature. A contention that additional discovery may yield some evidence of fault on the movant’s part is speculative. The mere hope that a party might be able to uncover evidence during the discovery process is insufficient to deny a motion to dismiss. Gabrielli Truck Sales v. Reali, 258 A.D.2d 437, 438, 683 N.Y.S.2d 871 (Mem.) (2d Dep’t 1999) (a party must make a showing that “facts essential to justify opposition to the motion to dismiss would be uncovered through discovery”).
Motion granted in its entirety.
6/23/2021 Lanzillo v. 4 World Trade Center, LLC, et. al.
Appellate Division, Second Department
Reliance on expert opinions that are speculative and conclusory are insufficient to raise triable issues of fact.
Plaintiff was entering an elevator (the “Elevator”) on the 38th Floor of 4 World Trade Center (the “Premises”), when its doors prematurely closed on her causing injuries (the “Incident”). Plaintiff filed suit against 4 World Trade Center, LLC (“Owner”), Silverstein Properties, Inc. (“Property Manager”), and Schindler Elevator Corporation (“Schindler”; collectively, “Defendants”), which manufactured and maintained the elevators, including the Elevator, at the Premises.
Defendants moved for summary judgment, contending that (1) Plaintiff could not identify the specific elevator on which the Incident occurred, (2) there was no evidence of prior notice, and (3) res ipsa loquitur was not applicable. The Supreme Court, Queens County granted Defendants’ motion. Thereafter, Plaintiff moved for leave to reargue and renew her opposition. The Court denied Plaintiff’s motion. Plaintiff appealed both Orders.
The basic premise of elevator liability remains unchanged. “A property owner can be liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect.” Goodwin v. Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766, 68 N.Y.S.3d 100, 102 (2d Dep’t 2017); see Napolitano v. Jackson “78” Condo., 186 A.D.3d 1383, 1383, 130 N.Y.S.3d 498, 499 (2d Dep’t 2020); Tucci v. Starrett City, Inc., 97 A.D.3d 811, 812, 949 N.Y.S.2d 419, 421 (2d Dep’t 2012). Similarly, “[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.” Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 26 (1973); see Roserie v. Alexander’s Kings Plaza, LLC, 171 A.D.3d 822, 823, 97 N.Y.S.3d 174, 176 (2d Dep’t 2019); Nye v. Putnam Nursing & Rehabilitation Ctr., 62 A.D.3d 767, 768, 879 N.Y.S.2d 505, 506 (2d Dep’t 2009).
Here, the Court found that Defendants submitted sufficient evidence to establish they lacked actual or constructive notice of any defect in any of the elevators at the Premises that would have caused the Elevator’s doors to strike Plaintiff. Moreover, Schindler established that it did not fail to use reasonable care to correct a condition of which it should have been aware.
In opposition, Plaintiff’s expert opined that the Incident was caused by a lack of proper inspection and maintenance of the infrared door detector edge. The Court found his opinion to be speculative, lacking in foundation, conclusory, and insufficient to raise triable issue of fact.
Defendants also established the doctrine of rep ipsa loquitur was not applicable. Plaintiff failed to raise a triable issue of fact as to whether the accident was one that would not ordinarily occur in the absence of someone’s negligence.
Finally, the Second Department affirmed the Supreme Court’s decision denying Plaintiff’s motion for leave to renew her opposition. As previously discussed in this column, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination.” CPLR 2221(e)(2). It “shall contain reasonable justification for the failure to present such facts on the prior motion.” CPLR 2221(e)(3). New York Courts are constantly reminding advocates that a “motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Mees v. Buiter, 186 A.D.3d 1673, 1674, 129 N.Y.S.3d 849 (Mem.) (2d Dep’t 2020)(internal citations omitted). Here, Plaintiff failed to demonstrate a reasonable justification for failing to present certain documents in which she purportedly identified the Elevator involved in the Incident. Plaintiff also failed to demonstrate new facts that would have changed the prior determination.
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