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NOTE FROM THE EDITOR:
Earlier this month I had the opportunity to spend time with colleagues from the Federation of Defense & Corporate Counsel (FDCC) at The Greenbriar Resort in White Sulphur Springs, West Virginia for our annual meeting. It was a wonderful opportunity to connect with friends and colleagues in-person for the first time in 18 months. And the programming was not just educational but also inspirational (and who couldn’t use a little inspiration these days?). We had the privilege of hearing 3 keynote speakers: Captain Richard Phillips who recounted his experience during the hijacking of his cargo shop by Somali pirates; NASA astronaut Nicole Stott; and Steven Page formerly of The Barenaked Ladies. As for the Greenbriar, what an amazing place. If you’ve never been, I highly recommend it.
In firm news, I am beyond excited to share that 21 Hurwitz & Fine Attorneys have been recognized by Best Lawyers in America®, Best Lawyers: Ones to Watch & Lawyer of the Year. This news is hot off the press and was just released yesterday. This is a tremendous honor and speaks to the skills of the lawyers at Hurwitz & Fine and to the commitment and dedication of everyone at the firm. It is and always has been a team effort. In addition, Hurwitz & Fine attorney Ann Evanko has been honored as 2022 “Lawyer of the Year” in her mediation practice. "Lawyer of the Year" honors are awarded annually to only one lawyer per practice area in each region with extremely high overall feedback from their peers, making it an exceptional distinction.
In other firm happenings, Dan Kohane spoke on his experiences as a first-generation American and important legal policy issues while attending the annual meeting of the Association of Defense Trial Attorneys (ADTA). Here’s the link to his very personal speech tied to the practice of law. Dan, as many of you know, is the Editor of Coverage Pointers, the Firm’s first and oldest newsletter. Feel free to e-mail Dan if you would like to be added to the distribution list.
This month also marks the end of summer and the beginning of a new school year soon. Fingers crossed that the school year is a success for all the kiddos out there and happy school supply shopping!
Until Next Month,
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.
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Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]
8/11/21 Francisco v. Kiara Foods, Inc., et al.
Appellate Division, 2nd Department
Court upheld lower court’s order because Defendant failed to show it did not own or possess the staircase where Plaintiff fell
Plaintiff commenced an action against Kiara Foods and La Rosa Fine Foods alleging he sustained personal injuries when he fell on a staircase inside a restaurant on property leased by Kiara Foods. La Rosa leased an attached storefront in which it operated a grocery store. Defendant La Rosa appealed the portion of Supreme Court’s order which denied La Rosa’s cross-motion, pursuant to CPLR 3211(a)(7), to dismiss the amended complaint insofar as asserted against it or, alternatively, to convert the cross motion into one for summary judgment and, upon conversion, for summary judgment dismissing the amended complaint insofar as asserted against it.
On appeal, the Court noted that La Rosa's evidence suggested that there was a connection between La Rosa and Kiara Foods, as well as a connection between the restaurant and the attached grocery store it operated. Finding that La Rosa failed to conclusively demonstrate that it did not control or possess the site where plaintiff fell or that the plaintiffs had no cause of action against it, the Court affirmed the order.
8/3/21 Bursztein v. Best Buy Stores, L.P.
United States District Court, Southern District of New York
Court granted Defendant’s motion for summary judgment, finding that metal on which Plaintiff tripped was a trivial defect
Plaintiff brought an action to recover damages for personal injuries she allegedly sustained after she fell in one of Defendant’s stores. She claimed that a raised piece of metal at the top of an escalator caused her to trip and fall. Plaintiff was unsure of how elevated the piece of metal was prior to her fall, but alleged it was elevated one inch above the floor immediately after her fall. Defendants removed the action to the United States District Court on the basis of diversity of citizenship and filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The Court noted that questions of negligence are usually left to the jury, except in slip-and-fall cases for “trivial defects.” New York State case law has established that, in slip-and-fall cases, a property owner may not be held liable for trivial defects, and that whether an alleged condition meets the triviality standard is for a court to decide rather than a jury. Noting that the parties here only dispute whether the defective metal blended into the surrounding floor, the Court found that a photograph submitted by Plaintiff showed that the defective metal strip contrasts with the tile and striped flooring surrounding it. Finding that the Plaintiff had not raised a material question of fact, the Court granted Defendant’s motion for summary judgment.
7/27/21 Ampong v. Costco Wholesale Corp.
United States District Court, Southern District of New York
Court granted Defendant’s motion to withhold production of video footage of Plaintiff’s fall due to discrepancy between video and Plaintiff’s allegations.
Plaintiff sued to recover damages for personal injuries she allegedly sustained as the result of an incident in which she tripped and fell in Defendant’s store. Defendant filed a motion for protective order to withhold production of video footage of Plaintiff's alleged accident until after her deposition to preserve its impeachment value, asserting that the allegations contained in Plaintiff’s discovery responses and medical records contradicted what was depicted in the store video. The Court conducted an in camera review of the video footage, determining that there was a discrepancy between what was depicted in the video footage as compared to Plaintiff's accounts of what occurred. Finding that Defendant had met its burden to show good cause, the Court granted Defendant’s motion for a protective order.
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School District & Municipal Liability
By: Anastasia M. McCarthy [email protected]
Dear Readers,
Last week marked the close of the Child Victims Act look-back window. While I am certain that the deluge of lawsuits filed over the last two years will continue to challenge attorneys, their clients, and the court system for many years to come, the close of the window will allow many institutional defendants the opportunity to truly assess the universe of claims against them. I expect to see a flurry of motion practice and settlements over the next year as litigants come face-to-face with the economic realities lurking beneath the surface of these sometimes 30, 40, and 50 year old cases.
If you have questions about the expiration of the look-back window, or about any of the other changes brought about by the CVA (such as the new statute of limitations, allowing civil claims arising from childhood sexual abuse until age 55, or the removal of childhood sex abuse cases from the Notice of Claim requirements of the Municipal and Education Law), please feel free to contact me directly.
07/16/21 Knaszak v. Hamburg Central School District
Appellate Division, Fourth Department
Court overturned the trial court’s prior denial of District’s motion for summary judgment and dismissed Plaintiff’s Complaint, holding that the tortfeasor’s disciplinary history was too dissimilar to the conduct that ultimately caused the injury to raise a triable question of fact on the issue of notice.
Plaintiff alleged that she was sexually assaulted by another student in the District’s high school. After losing its summary judgment motion on the issue of prior notice in the trial court, the District appealed and the Fourth Department reversed the trial court’s order.
While school districts indisputably have an obligation to adequately supervise their students, the District cannot be liable for the criminal acts of a third party unless it had sufficiently specific knowledge or notice of the dangerous conduct that ultimately caused the injury such that the District could or should have anticipated the criminal conduct. In moving for judgment as a matter of law in its favor, the District established that the students did not know one another before the assault and, more importantly, that the tortfeasor’s prior disciplinary record did not contain any prior infractions for physically aggressive or sexually inappropriate behavior nor even any infractions evincing the threat of physical or sexual violence.
The Fourth Department wrote: Contrary to the court's determination, while the student's history involved attendance issues, insubordination toward school staff, inappropriate verbal outbursts, being under the influence of drugs or alcohol, possession and sale of drugs, and academic problems, that history did not raise a triable issue of fact whether defendant had sufficiently specific knowledge or notice of the injury-causing conduct inasmuch as it was not similar to the student's physically and sexually aggressive behavior that injured plaintiff. “More significantly, [the student's] prior history did not include any sexually aggressive behavior.”
Notably, the Fourth Department also determined that the trial court’s inference (i.e. that the tortfeasor’s disclosure to a school social worker that he himself was a victim of sexual abuse during his childhood, coupled with his substance abuse, provided defendant with notice of the student's propensity to commit sexual assault) was impermissibly speculative and substantiated.
07/19/21 PB-36 Doe v. Niagara Falls City School District, et al. Supreme Court, New York, Niagara County
Defendant’s motion to dismiss claims under the Child Victims Act is met with mixed results.
Plaintiff alleged that he was sexually abused by a teacher while a middle school student in the District. The District moved to dismiss plaintiff’s Complaint on a number of grounds. Although the Court denied the motion with respect to plaintiff’s claims for negligent hiring, retention, and supervision as well as Plaintiff’s claim for negligent, reckless, and willful misconduct, the Court did dismiss Plaintiff’s premises liability claim as duplicative.
Of further note, the Court held that the CVA did in fact revive statutory failure to report (under the Social Services Law) claims and reiterated a prior holding that the CVA does not violate a Defendant’s due process rights under the New York State Constitution. The Court also noted that Complaint contained improper allegations (but did not necessarily state causes of action) that Defendants breached their fiduciary duty, duty to act in loco parentis, and were vicariously liable for the actions of the teacher. Specifically, the Court wrote that, when pled as a claim, these theories fail to state a cause of action (or are duplicative) in the sexual abuse context, but that here, where the theories are simply alleged and not framed as an independent claim or cause of action, the appropriate vehicle to remove such allegations from the Complaint was a motion to strike and not a motion dismiss.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Greeting Subscribers!
After a rainier than usual July, August is full of sunshine. H&F’s softball team finished the season with an overall record of 7-4 and made playoffs! Unfortunately, our hopes of earning a playoff win did not last long, but it was still a great season. We move on to the upcoming fantasy football season and defending my reign of domination as the back-to-back champion of the H&F fantasy football league.
We have slim pickings this month, although I report on one case wherein the Fourth Department unanimously denied plaintiff’s discovery motion to compel the defendants’ cell phone records and records for food and beverages purchased on the date of the accident. Recall that disclosure in civil actions is generally governed by CPLR § 3101(a), which directs: “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (Forman v Henkin, 30 NY3d 656, 661 [2018]). The words “material and necessary" are “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Forman, 30 NY3d at 661). The “party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is ‘material and necessary’ – i.e., relevant – regardless of whether discovery is sought from another party … or a nonparty” (Forman, 30 NY3d at 661). If you want to share your experiences with discovery motions or discuss your discovery motion and burdens of proof, feel free to send me an email or give me a call.
Until next issue, stay safe and healthy…
Marc
07/16/21 Brennan v Demydyuk
Appellate Division, Fourth Department
Plaintiff not entitled to defendants’ cell phone records or records for food and beverages purchased on the date of the accident because plaintiff failed to show that the records sought were material and necessary to the prosecution of his action.
The trial court granted plaintiff’s motion to compel discovery in part by ordering that defendants produce all cell phone records during a specified period and an authorization to obtain such records, and by ordering that defendants produce any and all receipts, billing records, credit card receipts and business records for food and beverages purchased on the date of the accident and an authorization to obtain those records.
The Fourth Department unanimously reversed that portion of the trial court’s ordering defendants’ cell phone records and records for food and beverages purchased on the date of the accident. Plaintiff repeatedly asserted in his discovery requests and motion papers that the requested records were relevant to proving the identity of the operator of the vehicle involved in the accident. However, there was no dispute as to the identity of the other operator, considering defendant’s prior admissions (c.f. Mendives v Curcio, 174 AD3d 796, 797 [2d Dept 2019]). Accordingly, the Fourth Department held that plaintiff “failed to meet the threshold for disclosure by showing that [his] request for cell phone [and food and beverage records] was reasonably calculated to yield information material and necessary to the action” (Evans v Roman, 172 AD3d 501, 502 [1st Dept 2019] [internal citations omitted]).
Plaintiff alternatively contended that there is a different reason supporting disclosure that was not included in his discovery requests or motion papers in the record on appeal, i.e., the requested records are potentially relevant to identifying witnesses who could testify as to defendant’s physical condition on the night of the accident and to determination whether he was intoxicated or impaired. The Fourth Department rejected this assertion because it is not properly before the Court inasmuch as it is raised for the first time on appeal.
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Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
A controversial study alleges that tiny wormlike structures embedded within a fossilized Canadian reef could have been formed by the skeletons of ancient sea sponges nearly 890 million year ago. If proven, it would represent the oldest animal fossils found to date. The previous record holder, the Dickinsonia, lived on the sea floor nearly 600 million years ago. While paleontologists are skeptical, it is believed this requires further investigation.
There are no reported vertical transportation cases this month. As such, we will look at a case reported back in April regarding a coverage dispute surrounding an elevator defect. While not a standard discussion for this column, the underlying Plaintiffs were injured at a job site when an elevator came to a sudden and abrupt stop causing injuries. Coverage issues may often arise in similar situations involving elevators at construction sites. As litigators we should always be aware of the crossover between underlying personal injury suits and coverage litigation.
I hope you enjoy the ride.
Scott
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4/22/2021 Old Republic Gen. Ins. Corp. v. Consolidated Edison Co. of N.Y. Inc.
Appellate Division, First Department
Insurer was obligated to provide defendants with a defense in the underlying personal injury action.
Defendant Consolidated Edison Co. of N.Y. (“Con Edison”) contracted with Ferreira Construction Company (“Ferreira”) to oversee the installation of a gas main from Queens to the East River, otherwise known as the Ravenswood Tunnel Project (the “Agreement”). Pursuant to the Agreement, Ferreira agreed to procure insurance naming Con Edison as an additional insured. Ferreira obtained insurance from Old Republic General Insurance Corp. (“Old Republic”).
On December 8, 2015, two Ferreira employees were performing work pursuant to the Agreement. They entered an elevator (the “Elevator”) at the jobsite. While riding the Elevator, it came to a sudden and abrupt stop causing personal injuries (the “Incident”). The Ferreira employees commenced a personal injury action against Con Edison. Each alleged that their injuries were “caused, created, permitted and allowed by reason of the carelessness, recklessness and negligence” of Con Edison.
Con Edison sought insurance coverage as an additional insured under the Old Republic policy issued to Ferreira (the “Policy”). Thereafter, Old Republic commenced a declaratory judgment against Con Edison, asserting Con Edison was not an additional insured for purposes of the personal injury actions filed by the Ferreira employees. Old Republic alleged that the presence of the Plaintiffs in the Elevator was not caused in whole or in part by the acts or omissions of Ferreira. Old Republic moved for summary judgment.
In opposition, Con Edison asserted that questions of fact existed concerning Ferreira’s negligence. Con Edison submitted deposition testimony stating Ferreira knew that the Elevator malfunctioned 10-12 times prior to the Incident and received notice of the defect 30-35 times prior to the Incident. Con Edison further alleged that despite alternative means of ingress, Ferreira permitted its employees to use the Elevator.
The First Department affirmed the Supreme Court’s decision finding that Old Republic had a duty to defend Con Edison as an additional insured, because there was a reasonable possibility that coverage for Con Edison, under the Policy, was implicated. The Court reasoned that when an endorsement providing additional insured coverage “is restricted to liability for any bodily injury ‘caused, in whole or in part,’ by the ‘acts or omissions’ of the named insured, the coverage applies to injury proximately caused by the named insured,” thus requiring a showing that the named insured’s causal conduct was negligent or otherwise a fault. Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313, 317 (2017).
The Court of Appeals has previously explained that similar endorsements are “intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to prevent coverage for the additional insured’s sole negligence.” Id. at 326; see also Hanover Ins. Co. v. Philadelphia Indem. Ins. Co., 159 A.D.3d 587, 587 (1st Dep’t 2018); Pioneer Cent. Sch. Dist. v. Preferred Mut. Ins. Co., 165 A.D.3d 1646, 1646 (4th Dep’t 2019). However, unlike in Burlington, Hanover, and Pioneer Central, where no liability was asserted against the named insured, here it was alleged that Ferreira knew that the Elevator malfunctioned multiple times prior to the Incident and that Ferreira received notice of the defective Elevator, that there was an alternative means to access the site, and despite all of this, allowed its employees to continue using the Elevator.
The First Department reasoned that since the underlying action alleged that Ferreira was a proximate cause of the injuries, Old Republic’s duty to defend was triggered. Decision Affirmed.
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Hurwitz & Fine, P.C.
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