Premises Pointers - Volume V, No. 5


Premises Pointers
Watch your step!

Volume V, No. 5
Wednesday, October 27, 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



Hurwitz & Fine continues to grow! Last month, we welcomed five associates pending admission to our insurance and litigation groups, and this month, we welcome attorneys Jesse L. Siegel and Michael J. Williams to our litigation team.
Jesse has joined our Melville team, and will work with our downstate team in NYS Labor Law & Construction Defect, Automobile, Premises, and General Liability Defense matters. He brings over a decade of experience as a civil litigator, conducting both bench and jury trials in the District, Civil and Supreme Courts of Nassau County and Suffolk County, as well as the five boroughs of New York City. Our downstate office continues to grow in response to our client needs and we’re happy to continue to expand this team with the addition of Jesse! Please feel free to reach out directly to Brian Mark, our resident partner in Melville, or Jesse with any questions about how we can assist you in the downstate area.
Mike has joined our Buffalo office, and will focus his practice on CVA claims, Product Liability and Municipal Law matters. Mike, who has more than 20 years of litigation experience as both plaintiff and defense counsel, has a particular interest and expertise in representing first responders. He is a welcome addition to our litigation department! Feel free to reach out directly to Mike to say hello.
On the COVID front, our Labor & Employment team continues to release timely information surrounding vaccinations. Their latest alert, released just this week, “EEOC Releases Guidance on COVID Vaccine Mandates and Employer Incentives,” provides insight on many of the FAQs employers and employees may have on current mandates.
Lastly, this week marks National Pro Bono Celebration Week. Pro bono is short for the Latin phrase pro bono publico, which means "for the public good”. As lawyers, we are able serve the public by providing by providing free legal services to those in need. Our firm is proud to support our many attorneys who devote their time to pro bono work, such as Estate Planning Associate Patty Rauh who regularly gives back to the community through her legal work, time and compassion.
Happy Halloween!


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]

9/28/21              Alaimo v. Sam’s East, Inc.
United States District Court, Southern District of New York
Court granted Defendant’s motion for summary judgment because Plaintiff failed to show Defendant had constructive notice of a cherry on the floor which caused her fall.
Plaintiff commenced an action against Sam’s East, Inc. in Orange County Supreme Court, alleging she sustained personal injuries as the result of a fall in a Sam’s Club store. She claimed that a cherry on the floor caused her to slip and fall. Defendant removed the case to federal court and filed a motion for summary judgment. Plaintiff testified she did not see the cherry before falling but afterward saw it. She described the cherry as not looking fresh, sticky and “gooky”. In her view, it had been on the floor a while given its consistency.
Defendant argued that Plaintiff failed to identify a genuine issue of material fact regarding the issue of whether Defendant had constructive notice of the cherry on which Plaintiff slipped. The Court noted that Plaintiff offered no evidence that Defendant had either placed the cherry on the floor or had actual notice of the cherry on the floor prior to her fall. Instead, she relied on circumstantial inferences as noted above to argue Defendant had constructive notice. New York case law has established that, for a Defendant to have constructive notice, the defect must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit it to be discovered and remedied. Noting that Plaintiff failed to submit any evidence indicating how long the cherry existed on the floor before Plaintiff slipped on it, the Court found that no reasonable jury could conclude Defendant had constructive notice of the dangerous or defective condition and granted Defendant’s motion for summary judgment. Plaintiff’s opinion of what the cherry looked like after her fall, in the court’s words, “did not save her claim”.
9/29/21              Bachir v. Costco Wholesale Corporation
United States District Court, Eastern District of New York
Court denied Defendants’ motion for summary judgment in snow/slush/ice case involving a fall on the concrete sidewalk where shopping carts were stored, finding that Defendants failed to establish the condition was not inherently dangerous or that storm in progress applied.
Plaintiff sued to recover damages for personal injuries he allegedly sustained when he fell in front of a Costco store on a portion of concrete sidewalk near the main doors to the store where some shopping carts were stored, referred to as “the landing.” He claimed the landing contained a mixture of snow, slush, and ice, causing him to fall when he was attempting to pull a shopping cart from the landing. Defendants filed a motion for summary judgment arguing the condition causing Plaintiff's accident was open and obvious, not inherently dangerous, and readily observable; that Plaintiff was the sole proximate cause of his own accident; and that the storm in progress doctrine applies.
Turning first to whether the condition was open and obvious, the Court noted that the only details regarding the condition were from Plaintiff's deposition testimony, and that Plaintiff’s recollection alone is not sufficient for the Court to determine as a matter of law that the snow, ice, and slush condition was open and obvious. Additionally, the Court noted that, even if it were to find that the condition was open and obvious, Defendants had failed to demonstrate that the condition was not inherently dangerous. The Court then addressed the issue of proximate cause, noting that Defendants’ argument that Plaintiff invited danger by not avoiding the snow mixture relates to the issue of comparative negligence and does not answer the question of whether Defendants breached their duty to maintain reasonably safe premises. Finally, regarding the storm-in-progress doctrine, the Court found that there was no indication that the storm from the previous night, which had produced seven inches of snow, was extreme enough to warrant application of the doctrine over seven hours after precipitation had ceased.


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

Dear Readers,
Happy Halloween! The McCarthy household is gearing up for another fun Halloween and I am happy to report that Josie will making an appearance as Hei Hei the Rooster from the movie, Moana.  What can I say, the kid has a sense of humor.
Not much to report on the school district liability front—but what there IS to report is one that will really stick with you.

08/26/21   Joni C. et al. v. Cheektowaga-Sloan Union Free School District
Appellate Division, Fourth Department
The Fourth Department reverses denial of motions for directed verdict where personal injury was caused by a teacher talking too loudly.

Plaintiff alleged that her daughter was injured by loud noise during the administration of a test in her school auditorium.  Plaintiff’s proof at trial established that during the test, a school faculty member spoke into a microphone and instructed students to “be quiet”.  The loud uttering of these two words via microphone, in turn, caused the alleged injury.  Additional relevant facts provided to the jury included:  that the child was 75 to 100 feet away from the speakers; that many other students were closer to the speakers; and that no one else in the room (over 100 people) was injured by the noise. Defendant moved for a directed verdict at the close of plaintiff’s proof and again at the close of trial.  The court denied the motions and the jury found in favor of plaintiffs.
On appeal, the Fourth Department reversed the Court’s decisions on the Defendant’s motions for a directed verdict.  The Court held that, although the proof at trial reflected that a faculty member “yelled” two words into a microphone and “was really loud,” there was no proof that the words were spoken in an unreasonable manner or at an unreasonable volume, were foreseeably unsafe, or were in violation of an applicable standard of care.  In other words, “[w]ithout knowing what is ‘too loud’,” “there [was] no standard of care by which a jury could determine on the evidence presented that defendant[ ] had breached a duty owed to plaintiff.”


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

Hello Subscribers!

Just when the Bills have you billieving after dominating the Chiefs, they lose a thrilling Monday Night Football game. Oh well, I like the call to go for the win but do not like the way Josh Allen failed to emulate the way in which Brady always sneaks that one yard.
I finally found a good discovery case to report on this month. The Linares case involves a supplemental bill of particulars served after the filing of the note of issue and defendants’ request for additional discovery. It is critical to note that the Uniform Rules for Trial Courts provide two distinct methods for obtaining disclosure after a note of issue is filed. Under 22 NYCRR 202.21(e), a party may move to vacate a note of issue upon the ground that the case is not ready for trial, but it must do so within 20 days after service of a note of issue and certificate of readiness. Section 22 NYCRR 202.21(d) permits the court to authorize additional discovery where “unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness” that would otherwise cause “substantial prejudice”. Supplemental bills of particulars must therefore be carefully analyzed to determine if new injures are claimed, whether the need for future surgeries was pled but not with the vaguest and boilerplate terms, and if medical records showed any indication that future surgery would be necessary. If you want to share your experiences with motions to vacate and/or compel post-note of issue discovery, just send me an email, or give me a shout.
Until next issue, stay safe and healthy…

10/05/21          Linares v City of New York
Appellate Division, First Department
Defendants entitled to discovery after the note of issue was filed but limited only to the alleged need for additional surgeries and medical treatment, which went well beyond what was pled in the discovery responses served before the note of issue was filed.
Plaintiff served a second supplemental bill of particulars and notice of expert witness after filing the note of issue, alleging that he would need additional surgeries and medical treatments with associated costs. The trial court denied defendants’ motion to vacate the note of issue and compel plaintiff to appear for a supplemental orthopedic examination and deposition.
The First Department unanimously modified the trial court’s order by directing plaintiff to appear for a deposition concerning only the additional surgeries and medical treatment described in the second supplemental bill of particulars and for a second orthopedic examination to assess plaintiff’s claimed need for such treatment. However, the Court declined to vacate the note of issue because defendants failed to show that they would be prejudiced by the case remaining on the trial calendar while this limited discovery is completed.


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

A group of herpetologists from India have identified (and named) a new gecko species.  The species is named the Jackie’s day gecko after martial arts legend, Jackie Chan.  The Jackie day gecko is one of 12 new species identified in the Western Ghats mountain range, which is threatened by deforestation and changing land use.  The gecko was aptly named when the team learned of the gecko’s agility. 

This month we have two new vertical transportation cases.  In each matter, the respective elevator maintenance provider moved for summary judgment.  The Second Department, on appeal, identified questions of fact and denied the elevator providers’ motions for summary judgment. Let’s find out why.         

I hope you enjoy the ride. 


9/22/2021                    Barcliff v. Schindler Elevator Corp., et. al. 
Appellate Division, Second Department
Question of facts as to whether elevator maintenance provider negligently inspected/maintained the subject elevator required denial of summary judgment.
Plaintiff was utilizing an elevator (the “Elevator”) at Brookdale Hospital Medical Center (the “Hospital”) when the Elevator’s doors allegedly closed on her without warning.  Plaintiff commenced an action for personal injuries against Nouveau Elevator Industries, Inc. (“Nouveau”), the Hospital’s elevator maintenance company.  Plaintiff alleged the Elevator was in a defective condition.  
Nouveau commenced a third-party action against the Hospital for contractual indemnification.  The Hospital asserted a counterclaim against Nouveau for contribution and indemnification.  Nouveau moved for summary judgment seeking to dismiss the Complaint and Counterclaims.  The Supreme Court denied Nouveau’s motion.  
An elevator company which agrees to maintain an elevator in safe operating condition can be held liable to an injured 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 Carter v. Nouveau Indus,, Inc., 187 A.D.3d 702, 703, 131 N.Y.S.3d 687, 690 (2d Dep’t 2020); Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 762, 40 N.Y.S.3d 121 (2d Dep’t 2016); Tucci v. Starrett City, Inc., 97 A.D.3d 811, 812, 949 N.Y.S.2d 419, 421 (2d Dep’t 2012).  
Nouveau submitted evidence demonstrating it did not have notice of any defect in the Elevator’s door, and that it did not fail to use reasonable care to correct a condition about which it should have been aware.  However, the evidence submitted in opposition raised a triable issue of fact as to whether Nouveau was negligent in how it inspected and/or maintained the Elevator’s door.  See Pantoja v. Lindsay Park Hous. Corp., 277 A.D.2d 365, 366, 716 N.Y.S.2d 335 (2d Dep’t 2000).  

10/13/2021                  Syrnik v. Bd. of Mgrs. of the Leighton House Condo, et. al. 
Appellate Division, Second Department
Question of facts as to whether elevator maintenance company used reasonable care to discover and correct a defect required denial of summary judgment.
Plaintiff was allegedly injured when a passenger elevator (the “Elevator”) she was riding suddenly accelerated and then abruptly stopped.  She commenced litigation against the Board of Managers of the Condominium and Halstead Management, LLC (collectively, “Building Defendants”) and Otis Elevator Company (“Otis”).  The Building Defendants retained Otis to inspect, service, maintain and repair the elevators at the premises, including the Elevator.  Defendants moved to dismiss the Complaint in its entirety.  Plaintiff appealed.  
"A property owner can be held 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, or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect." Goodwin v. Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766, 68 N.Y.S.3d 100 (2d Dep’t 2017) (internal citations omitted).  The Building Defendants submitted evidence establishing they did not have notice of any defective condition that would cause the Elevator to drop or stop abruptly.  Plaintiff failed to raise a triable issue of fact.  The Supreme Court properly granted the Building Defendants’ motion for summary judgment. 
The Court reached a very different conclusion on Otis’ motion.  "An 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."  Kim v. Park Hill Owners, Inc., 193 A.D.3d 918, 919, 142 N.Y.S.3d 423 (2d Dep’t 2021); see Daconta v. Otis El. Co., 165 A.D.3d 753, 753-54, 85 N.Y.S.3d 528 (2d Dep’t 2018).  
Otis submitted, inter alia, the affidavit of Patrick McPartland, a mechanical engineer and certified private elevator inspector.  McPartland opined that the cause of the elevator's drop and abrupt stop was "a clipping of a door lock," which, he explained, "occurs when the car door clutch, [which is] mounted on the hoistway [or elevator-shaft] side of the car door, comes in contact with the hoistway door release rollers mounted on the hoistway side of the hall doors."  McPartland further asserted that the clipping of a door lock "is not something that Otis . . . mechanics are able to prevent in the course of inspecting, testing, and servicing" an elevator, since it "is subject to influence of other persons and instrumentalities that either strike/hit the elevator doors or leave debris/objects in the elevator door sill."
In opposition, Plaintiff's expert, Patrick Carrajat, an elevator and escalator consultant, whose affidavit the plaintiff submitted in opposition to Otis's summary judgment motion, concurred with McPartland's opinion that "the probable cause of the accident was a clipped interlock."  Carrajat disagreed, however, with McPartland's contention that a clipped interlock was something Otis could not reasonably have been expected to prevent.  In Carrajat's view, proper inspection and maintenance would have revealed either improper adjustment, loosening or shifting, or excessive wear of certain components. 
The Second Department determined that Carrajat's analysis was not speculative, conclusory, or lacking in foundation and found that Carrajat's affidavit raised a triable issue of fact as to whether Otis failed to use reasonable care to discover and correct a condition which it ought to have found. 
Motion Denied.  


Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

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