Premises Pointers - Volume V, No. 4


Premises Pointers
Watch your step!

Volume V, No. 4
Tuesday, September 21, 2021
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.

Retail, Restaurant and Hospitality Industry
School District and Municipal Liability
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability



September is back to school, the start of the changing of the seasons, and already an exciting time for Hurwitz & Fine! Last week, we welcomed five associates pending admission to the firm’s Insurance Coverage and General Litigation teams. Aarti Chandan has joined our general litigation team and will focus on premises liability, automobile liability and school district litigation. Mark Nesbitt has joined our business litigation practice group, and Kyle Ruffner, Hannah Cominsky and Franco Mirolo have joined our insurance coverage team. This is the largest hiring class we have ever had in the firm’s 44-year history, and is a testament that we are growing and remain committed to adding to our teams and increasing our capacity to serve our clients.
I am also excited to announce that Hurwitz & Fine is participating in the Midsize Mansfield Rule Certification program. This national diversity certification is an 18-month rigorous process designed to increase the representation of diverse lawyers in leadership by broadening the pool of women, LGBTQ+ lawyers, lawyers with disabilities, and racial/ethnic minority lawyers who are considered for entry-level and lateral attorney job openings, leadership opportunities, equity partner promotions, and opportunities to connect with clients. This certification is another positive step we are taking as a firm toward achieving our goals of creating and maintaining a diverse team of attorneys to partner with our clients.
Our participation also demonstrates Hurwitz & Fine’s deep commitment to diversity, equity and inclusion within our firm culture, client service teams, and in recruiting efforts. Participation in Mansfield Certification will help us to act with intentionality in our recruitment and advancement efforts, track important related diversity metrics, standardize processes and increase transparency—much of what we are already doing today. We are prepared to undertake this process and excited to see the outcomes.
Lastly, on the corporate side, our Labor & Employment team is hard at work keeping our national clients updated with vaccination mandates, and our New York clients updated on HERO Act requirements and the annual Sexual Harassment Prevention training. If you have any questions on any of these parameters and how it may affect your business, please feel free to reach out to our Labor & Employment team!


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]

9/07/21              Congemi v. Wal-Mart Stores East, LP
United States District Court, Southern District
Walmart’s motion for summary judgment denied – Plaintiff’s testimony  and that of her companion regarding the presence of ice in the location of Plaintiff’s fall was sufficient to raise a question of fact.
Plaintiff brought an action against Walmart following a slip and fall in the parking lot due allegedly due to ice. Upon arriving at the store, plaintiff’s companion parked his car, retrieved shopping carts, and entered the store along with Plaintiff. Plaintiff noticed “slush” and “pieces of ice” in the parking lot while approaching the store. Plaintiff’s companion testified that he noticed “clear, muddy color[ed]” ice on the ground upon getting out of the driver's side of the car and that it was raining “pretty hard”. Despite these conditions, Plaintiff entered the store safely and shopped for roughly half an hour before returning to the car alone. As Plaintiff was walking to the driver's side door, she began to feel herself slipping. She looked down and noticed a “big thing of ice in a puddle.” By the time she saw the icy puddle, “it was too late, [she] was down.”
Unlike New York law, on the federal level, the movant may be “discharged by ‘showing’ ... that there is an absence of evidence to support the nonmoving party's case.” Walmart argued that there was no dangerous condition. To counter, Plaintiff and her companion’s testimony was deemed sufficient as to the possible existence of a dangerous condition. While Walmart offered climatological data, the court did not find it determinative on the question of whether or not ice existed in the parking lot. Walmart also argued that Plaintiff’s testimony should be disregarded because she gave conflicting accounts of what happened. The court concluded this went to her credibility which was not an appropriate consideration on the summary judgment motion.

9/16/21              Gonzalez v. Middletown Walmart Supercenter Store
United States District Court, Southern District
Defendant’s motion for summary judgment denied because Defendant failed to sign motion papers and material issues of fact remained.
Plaintiff brought an action against Walmart alleging he fell and sustained injuries due to the negligent placement of a rug in a store aisle. Defendant Walmart removed the action to United States District Court and, approximately one year later, filed a motion for summary judgment.
Defendant’s motion was denied for several reasons, including the fact that none of its motion papers were signed by Defendant’s counsel, as is required by Rule 11(a) of the Federal Rules of Civil Procedure. Additionally, the Court found there remained several genuine issues of material fact, one of which was whether the rug display was placed in a “busy,” “high traffic” aisle. Defendant submitted photographs allegedly taken immediately after Plaintiff’s fall, but the Court determined the condition of the aisle after the fall is of limited, if any, probative value. The Court noted that of importance is whether other happenings in the aisle diverted Plaintiff’s attention from the rug display when he fell, and the photographs failed to establish that. Another fact in dispute is whether Defendant intended to place furniture on top of the rug display or leave it unfurnished. Finding that the issues of fact have a direct bearing on whether Defendant was negligent in the placement of the rug display, the Court determined Defendant’s motion for summary judgment should be denied.


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

Dear Readers,

Last month we saw the close of the Look-Back Window of the Child Victims Act.  This month’s column focuses on some FAQs we have recently received about this development and the next steps in the life of these cases.  As always, if you have any questions, please feel free to contact me.

Child Victims Act FAQs


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

Hello Subscribers!
There are no good discovery cases to report on this month, so we will take this opportunity to remind you of the rule governing the scope of discovery when dealing with motions to compel disclosure and cross-motions for a protective order. CPLR § 3101 establishes three categories of protected materials from discovery: (1) privileged matters, which are absolutely immune from discovery; (2) attorney’s work-product, also absolutely immune; and (3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship (Forman v Henkin, 30 NY3d 656, 661-662 [2018]). The burden of establishing a right to protection under these provisions is with the party asserting it – “the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity” (id. at 662). If you want to share your experiences with discovery motions or discuss your protective order motion, just send me an email or give me a shout.
Until next issue, stay safe and healthy…


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

Snorkelers have discovered a massive coral belonging to the genus Porites, measuring at 34 feet wide and 17.4 feet tall.  The coral was found off the coast of Goolboodi (part of the Palm Islands) in Queensland, Australia.  Named “Muga dhambi” (“big coral”), it is believed to be the widest individual coral found to date on the Great Barrier Reef.  Muga dhambi is named in the language of the Manbarra people, who are indigenous to the Palm Islands.  Scientists believe this finding contradicts the common belief that the Great Barrier Reef is dead.   There are many marine biology projects hoping to save coral amongst the Great Barrier Reef.  This discovery may give hope that the Reef still holds strong and thrives in certain locations despite the effect climate change has had on its existence.   

Another quiet month with no reported vertical transportation cases.  Like last month, we will look at a tangentially related elevator case.  In the below matter, Plaintiffs sought a preliminary injunction barring Defendants from operating certain elevators and the machine room at a mixed-use condominium (commercial and residential units).  Unit residents sought to prevent the primary commercial tenant from accessing portions of its commercial space within the condominium due to excessive noise.  A preliminary Injunction prevents a party from taking specific action while awaiting a trial on the matter.  Courts decide Preliminary Injunctions with little information and often base decisions on probability or likelihood of success at trial.  Thus, the granting of a Preliminary Injunction is an extraordinary remedy with a high burden placed on the requesting party. 

I hope you enjoy the ride. 


4/16/2021                    OceanhouseNYC, LLC v. 237 140 West Street (NY), et. al. 
Supreme Court New York County
Plaintiff’s motion for a preliminary injunction seeking to bar defendants from operating elevators was denied.
Plaintiffs were residents of a mixed-use condominium in New York City (the “Condo”).  The Condo was previously occupied solely by Defendant Verizon New York Inc. (“Verizon”); however, now contains residential units.  
Plaintiffs allege that a certain bank of elevators (the “C-Bank”) were unbearably loud.  The complaints also extend to excessive noise from the elevator machine room (the “Machine Room”).  Plaintiffs allege that the noise and vibrations violated all applicable building codes and substantially interfered with the quiet use and enjoyment of their apartments.  Plaintiffs sought injunctive relief seeking to shut down the C-Bank and the Machine Room pending a determination at trial. 
Verizon contends that shutting down the C-Bank would limit their ability to access its multiple floors of the Condo.  Verizon contends that the Plaintiffs had not met their burden to establish the elements for a preliminary injunction.  
“A preliminary injunction substantially limits a defendant’s rights and is thus an extraordinary provisional remedy requiring a special showing.  Accordingly, a preliminary injunction will only be granted when the party seeking such relief demonstrates a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party.”  1234 Broadway LLC v. W. Side SRO Law Project, 86 A.D.3d 18, 23, 924 N.Y.S.2d 35, (1st Dep’t 2011) (citation omitted).   
The Court denied the motion.  Plaintiffs did not meet the high burden of showing that an extraordinary provisional remedy was appropriate.  While the C-Bank and Machine Room were “extremely loud,” it did not justify hampering telecommunications for much of Lower Manhattan.  
The Court paid close attention to the “balance of equities.”  Any reduction in elevator access would place Verizon’s daily and emergency-use access at risk.  Conversely, the Court was unable to conclude that the alleged harm to Plaintiffs (i.e., noise), was close to the potential harm to Verizon.  
In dicta, the Court referenced having no interest in limiting access to first responder communications, especially given that the potentially inaccessible floors were crucial in the event of an emergency or natural disaster.   The Court found only that such extraordinary relief was not appropriate because the shutdown of the elevators would inhibit Verizon’s ability to provide critical communications services, including support for first responders. The Court had no interest in hindering Verizon’s ability to perform those functions. 
Preliminary Injunction denied.


Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

Read Past Editions of Premises Pointers


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Phone: 716-849-8900, Fax: 716-855-0874             

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In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


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