Premises Pointers - Volume V, No. 6


Premises Pointers
Watch your step!

Volume V, No. 6
Tuesday, November 23, 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



This month, I'm proud to announce that Hurwitz & Fine was ranked as a Tier One Law Firm by U.S. News & World Report and Best Lawyers in Eight Practice Areas, including: 

This is exciting news for our Firm as we continue to grow by adding new lawyers, practice groups and locations throughout New York State and beyond.

In the premises liability world and in litigation in general, we have recently noticed an upswing in decisions and court activity. This month, our team discusses cases involving sidewalk falls, shopping cart mishaps, elevator repair and maintenance surrounding the LIRR, and a motion to sever a third-party action. On the trial front, more and more cases are being placed on the trial calendar and being tried. Brian Webb obtained a no-cause verdict just last week in Schenectady County in a motor vehicle accident case. Congratulations, Brian!

Lastly, as we enter the holiday season and continue to navigate through the pandemic, it is important to consider the long-term impact on law firm culture and the workforce. I recently worked with Best Lawyers to author an article on what changes I have seen, and what changes might be here to stay. To read the original article, click here
Happy Thanksgiving! Enjoy the day!


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. 

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

11/17/21          Scalia v. King Kullen Grocery Co., Inc.
Appellate Division, 2nd Department
Supreme Court’s denial of Defendants’ motions for summary judgment was upheld because Defendants failed to establish that Plaintiff was unable to identify the cause of her fall on a sidewalk and also failed to establish the defect was a trivial one.
Plaintiff allegedly sustained personal injuries when a wobbly front wheel of the shopping cart she was pushing along a sidewalk came into contact with a crack in the sidewalk, causing the cart to stop abruptly and her to fall to the ground. On the date of the incident, King Kullen Grocery Co., Inc. was leasing the store abutting the sidewalk where plaintiff fell from defendant Serota Northport, LLC, which owned the property. Plaintiff and her husband brought an action asserting defendants were liable in negligence and alleging dangerous/defective conditions with regard to both the wobbly shopping cart wheel and the cracked sidewalk. Defendant King Kullen filed a motion for summary judgment dismissing the complaint insofar as asserted against it, and Defendant Serota filed a motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and on its cross claims for common-law and contractual indemnification asserted against King Kullen. The Supreme Court denied both motions, resulting in defendant Serota filing an appeal and defendant King Kullen filing a cross-appeal.
On appeal, the Court found that neither defendant established their prima facie entitlement to judgment as a matter of law, noting that neither defendant had established, prima facie, that Plaintiff was unable to identify the cause of her accident. In Plaintiff’s deposition testimony, she identified two potential causes which, when combined, explained the accident. Defendant Serota contended that the sidewalk crack was a trivial defect, but the Court determined that a series of photographs of the crack and the affidavit and report of its architectural expert failed to establish that contention. The Court found that Defendant King Kullen established that it did not create or have actual notice of any defect or dangerous condition of the shopping cart but failed to establish that it lacked constructive notice of the shopping cart's alleged condition.

11/5/21            Qureshi v. Costco Wholesale Corporation
United States District Court, Eastern District of New York
Court denied Plaintiff’s motion for summary judgment, finding there were genuine issues of fact, including whether Plaintiff contributed to her fall or caused her own injuries.
Plaintiff commenced this action to recover injuries she claims to have sustained after allegedly being struck by a machine collecting shopping carts on a pedestrian ramp while entering a Costco store. She alleged that an employee operating a small, motorized vehicle that collects shopping carts negligently steered it up the ramp she was on, causing her to trip and fall. At the time she fell, Plaintiff was carrying a large pot that she was returning to the store. Plaintiff filed a motion for summary judgment arguing that, because she and her sister were the only witnesses, there are no material facts in dispute.
In opposition to Plaintiff’s motion, Defendant argued that the store's rules prohibit moving a stacked cart machine up the ramp; that employees are trained to comply with the store’s rules; that certain employees had not seen the rules violated; that it would not have made sense for an attendant to push carts in the direction of Plaintiff on the ramp, away from the store; that the ramp would not have been wide enough to permit a machine stacked with carts to make turns on it; and that the report of the EMTs treating Plaintiff never mentioned a cart machine. Defendant denied that a cart machine stacked with carts was on the ramp and denied that Plaintiff tripped over the machine, claiming that Plaintiff neither made out a prima facie case of negligence nor eliminated all questions of triable fact.
The Court noted that, under New York tort law, issues of breach and causation are ordinarily questions of fact for the jury, and only a rare negligence case can be decided on summary judgment. The Court further noted that the parties here dispute the ultimate factual questions of breach and causation, and there are numerous triable issues of fact that the jury must decide, including whether Plaintiff was contributorily negligent and the proximate cause of her own injuries.
The Court denied Plaintiff’s motion, finding that, although Plaintiff had satisfied her burden of production as the moving party, Defendant had more than adequately produced evidence demonstrating the existence of a genuine issue for trial.
10/26/21          Natoli v. Trader Joe’s East Inc.
Appellate Division, 1st Department
Court reversed Supreme Court’s decision to deny partial summary judgment to Plaintiff who claims she knocked down by a shopping cart because Defendants failed to submit evidence in opposition.
Plaintiff brought this action to appeal an order from the Supreme Court denying his motion for partial summary judgment on liability. In October 2018, Plaintiff was injured when a shopping cart hit him and caused him to fall to the ground at a Trader Joe’s supermarket. On appeal, the Court determined that Plaintiff met his prima facie burden by submitting evidence which included a witness statement indicating that an employee of Defendants pushed a row of carts forward, causing Plaintiff to be hit by a cart as he walked by. Defendants did not submit any evidence in opposition to Plaintiff’s motion. On appeal, the Court determined Defendants had failed to raise a triable issue of fact as to liability since they had not submitted any evidence. The Court further found that Defendants failed to identify information in the exclusive control of Plaintiff that would raise a material issue of fact.
10/12/21          Moss v. Westside Supermarket LLC
Appellate Division, 1st Department
Court upheld Supreme Court’s denial of Defendant’s motion for summary judgment because Defendant failed to establish that the offending display case leg was an open and obvious condition.
Plaintiff brought an action to recover for injuries she allegedly sustained when her foot got caught on the leg of a display case in Defendant’s store, causing her to fall. Defendant filed a motion for summary judgment, arguing that the leg of the display case was an open and obvious condition.
On appeal, the Court found that Defendant failed to establish prima facie that the leg of the display case was an open and obvious condition that was readily observable, referencing Plaintiff’s testimony that, in her approximately 25 visits to the supermarket prior to the accident, she had never noticed that the display case had legs. The Court also found that photographs submitted by Defendant did not show that the leg of the display case was plainly observable and posed no danger to a person. The Court then addressed surveillance footage of the accident, noting that, since the footage shows that Plaintiff fell because her foot became caught in one of the legs of the display case, the burden was on Defendant to address that element of plaintiff's claim.


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

Have a safe and Happy Thanksgiving!

11/19/21          LG 46 Doe v. James B. Jackson
Fourth Department, Appellate Division
In parallel lawsuits for childhood sexual abuse (against the abuser and the institution that allegedly enabled the abuse), the Fourth Department declines the trial court’s implementation of a stay on a post-default judgment damages hearing.

Plaintiff commenced two separate lawsuits under the Child Victims Act—one against the individual perpetrator who allegedly abused the Plaintiff and one against the Institution wherein the abuse allegedly occurred.  In the suit advanced against the alleged abuser, the Plaintiff filed and served a Complaint.  When the alleged abuser failed to Answer or otherwise appear, the Plaintiff sought and obtained a default judgment against the Defendant.  Because a parallel action for the same injuries was also sued against an Institutional Defendant in a separate but simultaneously pending action, however, the Court elected to stay the damages hearing in the matter filed only against the individual abuser.  Plaintiff appealed the implementation of the stay, arguing that the delay could prejudice the Plaintiff.  The lower court advanced an argument that it was authorized to implement such a stay to conserve judicial economy—no argument was advanced on behalf of the Institutional Defendant with respect to the prejudice that defendant might possibly incur.

Ultimately, the Fourth Department sided with the Plaintiff, holding that the Plaintiff “may suffer significant prejudice by a further delay of a determination of damages against defendant.  ‘As with stays generally, a postponement of a damages determination can easily be a drastic remedy on the simple basis that justice delayed is justice denied.’”

11/19/21 Jane Doe v. AR et al.  *Decision available upon request.
U.S. District Court, Western District of New York
Federal Claims of Conspiracy to Interfere with Plaintiff’s Civil Rights (28 U.S.C. § 1985(3)) and alleged violations of Masha’s Law dismissed in sexual assault civil case.

Plaintiff commenced a civil suit for a sexual assault that occurred in 2014 when she was 14 years old.  Defendants are four former classmates (the alleged assailants) and their parents. Defendants moved to dismiss and the Court granted the motion as to the federal claims, but declined to exercise supplemental jurisdiction over the remaining state law claims.

Plaintiffs lawsuit set forth 45 claims against the Defendants; FIve of those claims arose under federal law—(1) one claim arising under 28 U.S.C. § 1985(3) (conspiracy to interfere with Plaintiff’s civil rights) and (2) three claims arising under 18 U.S.C. § 2255 (violations of Masha’s Law). 
To prevail on a claim for conspiracy to interfere with a person’s civil rights, a plaintiff must first and foremost allege (1) a conspiracy (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or (3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.  To state such a claim against private citizens, a plaintiff must also show (1) that some racial, or perhaps otherwise class-based, invidiously discriminatory animus lay behind the conspirators’ action, and (2) that the conspiracy aimed at interfering with rights that are protected against private, as well as official encroachment. “When no state action is involved, only those constitutional rights that exist against private actors may be challenged under the section.”

On their motion to dismiss, Defendants argued that Plaintiff did not adequately allege the deprivation of a constitutional right protected against private encroachment—in opposition Plaintiff argued that the Defendants’ assault deprived her of her right to equal protection of the laws and/or equal privileges and immunities under the law. The Court ultimately agreed with the Defendants, holding that there are only two recognized rights that are protected against both private and official encroachment—the right to be from involuntary servitude and the right to interstate travel—and that neither of these rights was implicated by the facts of this particular case.

Plaintiff also asserted three claims under Masha’s Law (18 U.S.C. 2255), which was enacted as part of the Child Abuse Victims’ Rights Act of 1986. The law provides a civil remedy for personal injuries suffered by victims of child sexual exploitation, however, to be liable under Section 2255, a defendant must have violated at least one of the specifically enumerated criminal statutes listed within the scope of the Act.  In the instant matter, Plaintiff alleged that she was entitled to civil recover because the Defendants photographed and distributed images of the assault among other students at the parties’ high school, constituting the distribution of child pornography (one of the criminal statutes within the scope of Masha’s Law).  In support of this claim, Plaintiff’s Complaint alleged that, during the assault, she saw flashes of light and infers that the Defendants were taking photographs and/or video of the assault.  The Complaint further stated that other students at the school made comments and/or taunted the Plaintiff after being shown photos and/or video of the incident. 
On motion, Defendants argue that Plaintiff’s Complaint fails to plead sufficient facts to support such a claim because there are no allegation satisfying the interstate or foreign commerce element of the child pornography statute at issue.  The Court ultimately agreed, finding that the Complaint does not allege that the images were circulated to anyone nor that an article of interstate commerce was utilized to capture such images.


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

Hello Subscribers!
We are excited for the Bills to play on Thanksgiving! We also enjoy spending time with our loved ones this holiday season and reflecting on all the positives in our lives, including giving thanks to our families for putting up with us and the opportunity to work with so many talented individuals.
Courts do not want to hear discovery motions right now, so I found an interesting case discussing a motion to sever a third-party action. CPLR § 603 permits the trial court to sever claims for the convenience of the parties or to avoid prejudice or order a separate trial of any claim, or of any separate issue. Severance should be utilized in cases where individual issues predominate and there is the possibility of confusion for the jury. If the claims involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial, then severance is usually inappropriate. The determination of a severance motion is a matter of judicial discretion, which will not be disturbed on appeal absent an abuse of discretion or prejudice to a substantial right of the party seeking severance. If you want to share your experiences with motions to sever, just send me an email, or give me a shout.
Until next issue, Happy Thanksgiving …

11/09/21          Caras v George Comfort & Sons, Inc.
Appellate Division, First Department
Party seeking additional post-note of issue discovery must timely object or waives right to ask the court to impose discovery sanctions.
The trial court denied third-party defendant Forest’s motion, for, as relevant here, discovery sanctions against defendants/third-party plaintiffs for failing to identify or produce a project manager for a deposition, whose affidavits they had submitted in support of its summary judgment motion.
The First Department unanimously affirmed the trial court’s order denying the motion for sanctions. The trial court had a standing order against post-note of issue discovery; thus, defendants were under no obligation to produce the project manager absent a contrary directive from the court. The onus of obtaining such a directive rested on Forest, as the party seeking the additional discovery. However, despite the opportunity to raise this issue in court at a pretrial conference, Forest did not do so.
The Court also affirmed the trial court’s decision to not sever the third-party action since it shared common questions of fact and law with the main action and trying the two together will promote judicial economy and consistency in the results. Forest also had not shown that its rights were prejudiced by the fact that defendants did not produce the project manager for a deposition. Finally, the Court also affirmed the trial court’s decision to not order the project manager’s deposition (see 22 NYCRR 202.21[d]).


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

The Fermi paradox (named after physicist Enrico Fermi) is the idea that a contradiction exists between the lack of evidence of extraterrestrial life and high estimates for their probability.  In other words, where are the aliens?  This question has plagued astronomers for decades.  In fact, so much so, that a U.S. survey of astronomers puts the search for extraterrestrial life at the top of their to-do list.  A report issued by the National Academy of Sciences, Engineering and Medicine indicated that the goal was to capture pictures of Earth-like worlds that may exist.  The report stated that “[t]he coming decades will set humanity down a path to determine whether we are alone.”  Perhaps its time to build a space elevator.      
While there are no little green men here, this month’s edition does bring a case that is perhaps alien to this newsletter.  This month, we look at a declaratory judgment action filed by an additional insured pursuant to a full-service vertical transportation agreement between the parties.  A declaratory judgment action seeks a binding judgment from the court that defines the legal relationship between the entities and their rights in the matter.  The instant litigation sought to define an additional insureds coverage pursuant to a vertical transportation agreement and insurance policy resulting from an injury on a covered escalator. 
I hope you enjoy the ride. 

10/20/2021  Long Island Rail Road Company v. New York Marine and General Insurance Company, et. al. 
Appellate Division, Second Department

Declaratory Judgment granted to additional insured pursuant to full-service vertical transportation agreement.
Defendant New York Marine and General Insurance Company (“Insurer”) appealed an Order of the Supreme Court, Suffolk County declaring that Insurer was obligated to defend and indemnify Plaintiff, Long Island Rail Road Company (“LIRR”), in an underlying action entitled Morrison v. Long Island Railroad (the “Underlying Action”).  The Supreme Court denied Insurer’s motion for summary judgment dismissing the complaint and declaring that it is not obligated to defend or indemnify Plaintiff in the underlying action.  In addition, the court granted LIRR’s cross-motion for summary judgment declaring Insurer is obligated to defend and indemnify.  Order Affirmed.
Plaintiff filed suit against Nouveau Elevator Industries, Inc. (“Nouveau”) and Insurer.  Nouveau and the LIRR entered into a written agreement for Nouveau to provide escalator repair and maintenance services at various LIRR locations.  Insurer provided insurance to Nouveau during the relevant period.  In the Underlying Action, Plaintiff alleged that she was injured on an escalator at the LIRR Babylon Station.  LIRR alleged that it was an additional insured under an insurance policy that Insurer issued to Nouveau which was in place at the time of the events alleged in the Underlying Action, thus requiring Insurer to defend and indemnify LIRR. 
The LIRR established its entitlement to judgment as a matter of law by demonstrating that it was an additional insured under the insurance policy provided by Insurer to Nouveau.  The LIRR submitted: (1) a request for proposal; (2) notice of award to Nouveau; (3) notice to proceed; and (4) certificate of insurance including LIRR as an additional insured.  In opposition, Insurer failed to raise triable issue of fact. 
The Court first determined the intent of the parties.  “When determining whether a third party is an additional insured under an insurance policy, a court must ascertain the intention of the parties to the policy, as determined from within the four corners of the policy itself.”  Superior Ice Rink, Inc. v. Nescon Contr. Corp., 52 A.D.3d 688, 691 (2d Dep’t 2008 ); see County of Nassau v. Tech. Co., Inc., 174 A.D.3d 847, 848-49 (2d Dep’t 2019).  The insurance policy at issue provided that additional insureds included “[a]ny person or organization for whom [Nouveau was] performing operations when [Nouveau] and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on [the] policy.”  Thus, LIRR’s entitlement to defense and indemnification depended on the contents of a written agreement, if any.  See e.g., Northside Tower Realty, LLC v. Admiral Ins. Co., 180 A.D.3d 696, 697 (2d Dep’t 2020). 
“The duty to defend arises whenever the allegations in a complaint against the insured fall within the scope of the risks undertaken by the insurer, regardless of how false or groundless those allegations might be.” Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310 (1984); see One Reason Rd., LLC v. Seneca Ins. Co. Inc., 163 A.D.3d 974, 975-76 (2d Dep’t 2018).  “The duty is not contingent on the insurer's ultimate duty to indemnify should the insured be found liable, nor is it material that the complaint against the insured asserts additional claims which fall outside the policy's general coverage or within its exclusory provisions.” Seaboard Sur. Co., 64 N.Y.2d at 310.  “Rather, the duty of the insurer to defend the insured rests solely on whether the complaint alleges any facts or grounds which bring the action within the protection purchased.”  Id.; see One Reason Rd., LLC, 163 A.D.3d at 975.
Here, the scope of the insurance policy covered "liability for 'bodily injury' or 'property damage' caused, in whole or in part, by [Nouveau] at the location designated.” LIRR submitted the amended complaint and the bill of particulars in the Underlying Action which allege, among other things, that the injuries sustained by the Plaintiff in that action were caused by a defective escalator at an LIRR facility.  That amended complaint and the bill of particulars also include allegations as to the negligent operation and maintenance of the escalator.  
“[A]n insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision.” Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45(1991); see Melamed v. First Am. Tit. Ins. Co., 190 A.D.3d 724,726 (2d Dep’t 2021).  “[W]here an insurance policy 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.”  Burlington Ins. Co. v. NYC Tr. Auth., 29 N.Y.3d 313, 317 (2017).  In opposition, NY Marine failed to show that there were no triable issues of fact as to whether any acts or omissions by Nouveau were the proximate cause of the alleged injuries in the underlying action. Thus, the Supreme Court also properly determined that Insurer was obligated to defend LIRR in the Underlying Action.
The Second Department remitted the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that Insurer was obligated to defend and indemnify LIRR in the Underlying Action, and to reimburse LIRR for the attorneys' fees that it incurred in defending that action. 


Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

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