Premises Pointers - Volume V, No. 7

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.

NOTE FROM THE EDITOR:

Happy Holidays!

With Christmas just one week away, if you are like me, it’s a race to the finish line with shopping, wrapping and party planning. So good luck to everyone during the final holiday stretch! At our firm, we just finished a week of holiday events, starting with a cookie exchange and ending with virtual voting on the ugliest Christmas sweater. While we decided to forgo our in-person holiday party for one more year, we once again hosted our holiday adopt-a-family program, where our offices came together to purchase gifts and household items for a less fortunate family for the holiday season. We have much to be thankful for this year, despite the challenges along the way, and are looking forward to peace, health and prosperity in 2022! 



This month, our case summaries include a wide range of Appellate Division and Federal Court decisions. There is no shortage of claims against retailers. This month, Costco and Macy’s are in the hot seat. Scott Kagan, our resident Albany attorney, brings us two res ipsa loquitur elevator cases, while Marc Schulz’s column addresses several IME issues along with sanctions on an attorney for failing to attend a scheduling conference. Finally, don’t miss Anastasia’s update on the Adult Survivor’s Act, which is likely to pass in 2022. As a lot of what we still do being virtual, and social media being a a dominant force in our lives today, our Long Island attorney Jesse Siegel provides some guidance on how to maximize social media discovery in defending a claim in his recent article:  Clickbait: A Refresh on Social Media Discovery. Feel free to send Jesse a note if you have any questions or comments about his article.

Have a great holiday and Happy New Year! Cheers to 2022!

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. 

Labor Law Pointers:  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 

12/15/21          Westbay v. Costco Wholesale Corporation, et al.
Appellate Division, 2^nd Department
Painted asphalt became slippery when wet causing plaintiff’s fall and resulting in reversal of Supreme Court’s decision granting summary judgment to Costco.
 
Plaintiff brought an action to recover for personal injuries he allegedly sustained as the result of falling on a painted portion of asphalt in the parking lot of a store owned by Costco. Costco filed its answer and commenced a third-party action against Appell Striping and Sealcoating, Inc., the company that had performed the painting and re-striping work in Costco’s parking lot approximately two months prior to plaintiff's accident. Appell filed a motion for summary judgment dismissing the third-party complaint, and Costco cross-moved for summary judgment. The Supreme Court granted the branch of Costco's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it and denied Appell's motion.
 
On appeal, the Court determined that, although Costco established that it did not have actual, constructive, or imputed knowledge that the paint could cause the asphalt to become slippery, Plaintiff had raised a triable issue of fact. Plaintiff’s opposition partially relied on an application bulletin for the traffic marking paint, which had been submitted by Appell. The bulletin acknowledged the inherent danger present when painted surfaces become wet, and explicitly stated that the paint should not be used to paint large areas subject to pedestrian traffic. The Court determined that, considering the size of the painted area outside of the store entrance, there was a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery.
 
 
12/8/21            Looney v. Macy's Inc. and Thyssenkrupp Elevator Corporation, et al.
United States District Court, Eastern District of New York
Defendants’ motions for summary judgment denied – there was no evidence Defendants created or had notice of the alleged condition of the escalator that Plaintiff claims caused her accident.
 
Plaintiff brought this action to recover for injuries she allegedly sustained as the result of her left shoe becoming caught under the “teeth” at the bottom of the escalator in a Macy’s store in Queens Center Mall. She claims her foot remained stuck in the teeth until it reached the buckle of her shoe, at which point the escalator stopped suddenly and caused her to be thrown to the ground.
 
The evidence submitted, including Macy’s Visual Security Officers’ (VSO) logbook, demonstrated that Defendants and their employees did not know of any issue with the subject escalator at the time of Plaintiff's alleged accident. In fact, the logbook, which contained the results of the daily escalator inspections performed by Macy's' VSOs, reflected that there were no problems with the subject escalator noted on the morning of the alleged accident. As a result, the Court found that Defendants demonstrated an absence of record evidence showing that either of them had actual notice of a dangerous or defective condition with respect to the subject escalator and, therefore, there is no genuine dispute of material fact as to that issue.
 
The Court then turned to the issue of constructive notice, finding that there was no evidence indicating the length of time during which any dangerous or defective condition with respect to the subject escalator was present. Noting that the record does contain evidence that Defendants were aware of a recurring condition with respect to the subject escalator's comb plate or plates and comb plate teeth, the Court found that there was no evidence that the recurring condition went regularly unaddressed; rather, the VSO logs demonstrated that the store's escalators were checked daily in the morning before being turned on, including being checked for issues with the escalators’ comb plates and comb plate teeth. The Court thus concluded that Defendants demonstrated an absence of record evidence showing that either of the Defendants had constructive notice of a dangerous or defective condition with respect to the subject escalator, and Plaintiff has failed to point to any evidence showing as much. There is no genuine dispute of material fact as to this issue.
 
Finally, the Court addressed Plaintiff’s argument that, even if Defendants are entitled to summary judgment on the issues of creation and notice, the Court may deny Defendants' summary judgment motions based on the doctrine of res ipsa loquitur. Citing Travco Ins. Co. v. Dinerman, No. 16-CV-01064, 2021 WL 1193391, at *8 (E.D.N.Y. Mar. 29, 2021), the Court noted that, "[I]n order to justify a res ipsa loquitur theory, a plaintiff must demonstrate that (1) the event was of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the plaintiff." The Court found that Plaintiff was unable to establish that the subject escalator that caused her alleged accident was within Defendants' exclusive control, noting that the public had “unfettered access” to the escalator as it was located in a department store in a mall. Due to the fact that Defendants lacked "exclusive control" over the instrumentality that caused Plaintiff's alleged accident, the Court found that the doctrine of res ipsa loquitur does not preclude granting summary judgment to Defendants.
 

12/2/21            Birencwajg v. Compaore et al.
Appellate Division, 1^st Department
Court denied restaurant defendants’ motion to dismiss because they failed to provide evidence that defendant bicyclist had not been their employee when he struck the Plaintiff while making a food delivery.
 
Plaintiff sued to recover for injuries she allegedly sustained when she was struck by an electric bicycle driven by Defendant Compaore while she was walking on a sidewalk. Plaintiff alleged that, on the date of her accident, Compaore was employed by Defendants Chalk Point Kitchen, 525 Broome Street Restaurant LLC, and Indiefork LLC and was delivering food in the scope of that employment when he negligently operated his bicycle on a public sidewalk, causing the accident and her injuries. The Court determined that the documentary evidence failed to demonstrate conclusively that the restaurant defendants did not employ Compaore on the day of the accident and denied their motion to dismiss.

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

Dear Readers,
 
Happy Holidays and Happy New Year! I hope that you have a safe and enjoyable Holiday season.  Please feel free to say hello in 2022!
 
As I have done in years past, I am dedicating this month’s column to my legislative predictions, expectations, and speculation for 2022. This year, I am focusing on the Adult Survivor’s Act, which I expect to pass in 2022--at a minimum, I believe it will be a the focus of much conversation in the new year.
 
The Act, which passed the Senate last year and later died in the Judiciary Committee, is largely viewed as a companion to the Child Victims Act.  Although it does not impose as many changes to existing law as the CVA did, the ASA (1) creates a revival/look-back window for civil claims for personal injury resulting from the commission of a sexual offense (as defined in Article 130 of the Penal Law) against the Plaintiff (who was 18 years old or older at the time of the offense); (2) grants a trial preference to such actions; and (3) charges OCA with the task of promulgating rules for the timely adjudication of such revived/historical claims. Like the CVA, Plaintiffs filing suit under the ASA may bring suit for physical, psychological, or “other injury,” arising from the commission of a sex offense, against any party on the basis of that party’s intentional or negligent acts or omissions.
 
ASA claims are very likely to impact a variety of different industries and institutions, including hotels/hospitality, churches/religious orders, colleges, universities, residential and rehabilitative care facilities, assisted living facilities, hospitals, jails, prisons, and employers throughout the state, including the NY legislature itself. 

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

Hello Subscribers!
 
Week 15 in the NFL is a big fantasy football week and congratulations to those of you who made the playoffs! In the H&F league, I failed to earn a first-round bye for the first time in three years, so I will face Chris Potenza, with the winner earning the right to likely lose to Steve Peiper. Good luck in your matchups.
 
This month, I found a few discovery cases, including one where plaintiff’s complaint was dismissed for counsel’s failure to appear at a court-ordered pretrial conference. The Gilliam case raises an interesting issue as whether the condition of one’s body is the kind of evidence that is subject to a spoliation analysis. In that case, defendant argued that plaintiff was obligated to preserve the condition of her spine since it was evidence and surgery “drastically” altered the spine’s condition such that defendant was prejudiced when plaintiff failed to appear for an independent medical examination (IME) and chose instead to undergo a discectomy one month later. Please send me an email or give me a shout if you encountered a similar or interesting experience with IMEs.
 
Until next issue, Happy New Year!
 
Marc

12/23/21          Lewis & Verizon N.Y. Inc.
Appellate Division, First Department
Defendant permitted to obtain post-note of issue discovery for new claims asserted post-note of issue, but not for pre-note of issue medical conditions.
 
The trial court denied defendant Verizon’s cross-motion, to strike the note of issue and certificate of readiness and compel additional discovery. The First Department unanimously modified the trial court’s order by directing plaintiff to appear for a supplemental deposition concerning only the additional tests and treatment disclosed in the third and fourth supplement bill of particulars, undergo additional orthopedic and neurological IMEs, provide medical authorizations, not already provided, relating to the post-note of issue expert reports and witnesses, and procedures, tests, and additional treating doctors disclosed in the third and fourth supplemental bill of particulars.
 
Verizon demonstrated that the tests and procedures disclosed in the third and fourth bill of particulars and the identification of additional expert witnesses were unusual and unanticipated, warranting additional limited discovery to prevent substantial prejudice to them (see 22 NYCRR 202.21[d]). However, the Court held that Verizon was not entitled to obtain discovery relating to pre-note of issue medical conditions, since they stipulated that discovery was complete on those matters when the note of issue was filed.
 
The Court further held that plaintiff consented to a limited deposition of her relating to the post-note of issue tests and treatment and to an orthopedic IME, but not to a psychological IME because plaintiff withdrew her claim of psychological injuries.  
 
 
12/07/21          Gilliam v Uni holdings
Appellate Division, First Department
The condition of one’s body is not the kind of evidence that is subject to spoliation sanctions.
 
Plaintiff was struck by a falling portion of the bathroom ceiling in her apartment that was owned by defendant. She alleged injuries to her lumbar spine, including a bulging L4-5 disc. Plaintiff failed to comply with defendant’s IME notice and underwent a discectomy to her lumbar spine the following month. Defendant served another IME notice, which plaintiff appeared for and served a supplemental bill of particulars. The trial court denied defendant’s motion to dismiss the complaint, but sanctioned plaintiff by precluding her from offering any evidence regarding an injury or surgery to her L4-5 or recovering any damages for said injury or surgery. The court opined that “the preservation of body parts in an intact state available to all parties for review is essential. Therefore, parts of an injured plaintiff’s body fit comfortably into the type of evidence that can be spoiled. Plaintiff does not dispute that her lumbar spine has been altered from its pre-surgery condition. Here, the condition of plaintiff’s L5-S1 lumbar spine was crucial evidence in determining the extent to which it was damaged as a result of the underlying accident.”
 
The First Department unanimously reversed the trial court and held that the condition of one’s body is not the type of evidence that is subject to a spoilation analysis. Thus, plaintiff’s pre-IME spine surgery did not result in the spoliation of evidence. Additionally, defendant was not prejudiced by plaintiff’s medical treatment, as there is other evidence on which defendant may rely, including plaintiff’s pre-surgical and post-surgical medical records.
 
 
12/07/21          Menendez v Abingdon Ct. Owners Corp.
Appellate Division, First Department
Failure to comply with the trial court’s order to appear at a compliance conference resulted in dismissal of plaintiff’s complaint.
 
After the trial court unsuccessfully attempted to contact plaintiff’s counsel of record for a pretrial conference, it issued an order directing all parties to appear at a compliance conference and warned that “if plaintiff fails to appear this matter will be dismissed.” When plaintiff’s counsel failed to appear, the trial court dismissed the case.
 
The First Department unanimously affirmed dismissal of plaintiff’s complaint. Under the circumstances of this case, which has been “plagued by delays relating to discovery and the filing of this and other substitutions of counsel for plaintiff, with resulting prejudice to defendants, plaintiff’s belated application to deem valid the noncompliant consent to change attorneys filed after the action was dismissed or, alternatively, to grant leave to file a properly executed one nunc pro tunc, is denied.”
 
 
12/19/21          Squires v Say
Appellate Division, Fourth Department
Defendant not entitled to discovery sanctions for plaintiff’s alleged failure to provide disclosure that her injuries are permanent.
 
The trial court denied defendant’s motion to strike plaintiff’s complaint, or in the alternative, to preclude plaintiff from offering evidence at trial that her injuries are permanent based on plaintiff’s alleged failure to provide disclosure. “The nature and degree of a sanction to be imposed pursuant to CPLR § 3126 is within the discretion of the court, and the striking of a pleading is appropriate only upon a clear showing that a party’s failure to comply with a discovery demand or order is willful, contumacious, or in bad faith” (Mosey v County of Erie, 117 AD3d 1381, 1384 [4th Dept 2014). Here, the Fourth Department unanimously affirmed the trial court’s finding that plaintiff’s conduct during discovery did not rise to the level of willful or bad faith behavior to warrant the sanctions sought.

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

As attorneys, we are always “getting our ducks in a row.”  Researchers report there is physics to this theory.  When baby ducklings line up behind their mother, they ride waves in her wake, thus saving them energy.  As reported by the Journal of Fluid Mechanics, ordered ducklings experience 158% less wave drag than when swimming alone.  To enjoy the benefits, the ducklings must maintain their position, otherwise the swimming becomes more difficult.  Perhaps this is why we feel better when our proverbial ducks are in a row.  Imagine saving 158% more energy by doing so.    
 
This month’s newsletter will look at one of the most feared elevator scenarios - elevator drops.  While uncommon, elevators can drop at high rates of speed causing injury.  In both cases this month, Plaintiff claimed res ipsa loquitur.  Res ipsa loqutur means “the thing speaks for itself.”  The principle allows a Plaintiff to create a rebuttable presumption of negligence by proving that the harm would not ordinarily occur without some negligence.  To prove res ipsa loquitur, a Plaintiff must show: (1) that the incident was of a type that does not generally happen without negligence; (2) it was caused by an instrumentality solely in Defendant’s control; and (3) the Plaintiff did not contribute to their own injuries.  If proven, a Defendant may rebut the presumption by providing evidence to negate any of the individual prongs.  Let’s find out if Plaintiffs were successful.  Spoiler warning -- the First Department found in both cases that elevator drops do not ordinarily occur in the absence of negligence!
   
I hope you enjoy the ride. 
 
Scott

 
11/18/2021                  Rivera v. Slade Indus., Inc.
Appellate Division, First Department
First Department determines applicability of res ipsa loquitur in elevator drop accident.
 
Plaintiff alleges suffering personal injuries when an elevator he was travelling in at Lincoln Correctional Facility (“Premises”) dropped several floors.  Plaintiff brought suit against the elevator maintenance company (“Defendant”) at the Premises.  Defendant moved for summary judgment.  First, the Appellate Division found that Defendant failed to make a prima facie case that the elevator malfunction was caused solely by a loss of power to the elevator’s main line attributable to generator testing at the Premises.  Defendant’s expert opinion was insufficient because he inaccurately described the elevator malfunction and did not address the drop at all.  Second, while Defendant made a prima facie showing that it did not create or have notice of any alleged defective condition; Plaintiff raised an issue of fact based on the doctrine of res ipsa loquitur.  See generally Ezzard v. One E. Riv. Place Realty Co., LLC, 129 A.D.3d 162-63 (1st Dep’t 2015).      
 
The Court believed that an elevator drop is the type of event that does not normally occur in the absence of negligence.  Also, there was no dispute that the elevator was in the exclusive control of the Defendant, or that Plaintiff did not contribute to the elevator malfunction. 
 
Motion denied. 

 
11/23/2021                  Lonigro v. WFP Tower B. Co. L.P.
Appellate Division, First Department
First Department determines applicability of res ipsa loquitur in elevator drop accident.
 
Plaintiff, Frank Lonigro (“Plaintiff”), was a passenger in an elevator that suddenly and rapidly dropped and then abruptly stopped.  Plaintiffs filed a lawsuit against the property owner, WFP Tower B. Co. L.P. (“WFP”), and the elevator maintenance and service provider, Thyssnkeup Elevator Corporation (“TEC”). 
 
TEC filed a motion for summary judgment.  The First Department affirmed the Supreme Court’s decision.  TEC failed to establish that the doctrine of res ipsa loquitur did not apply.  Plaintiff was injured after entering an elevator and the elevator rapidly descended and stopped abruptly.  The Court believed that an accident of this type did not ordinarily occur in the absence of negligence.  See Orea v. NH Hotels USA, Inc., 187 A.D.3d 476, 478 (1st Dep’t 2020); see also Mejia v. N.Y.C. Tr. Auth., 291 A.D.2d 225, 227 (1st Dep’t 2002).  Of note, TEC did not argue that the drop described by Plaintiff was electrically or mechanically impossible.  (Cinquemani v. Otis El. Co., 179 A.D.3d 588, 588-89 (1st Dep’t 2020); cf Espinal v. Trezechahn 1065 Ave. of the Ams., LLC, 94 A.D.3d 611, 614 (1st Dep’t 2012) (“expert’s uncontroverted litany of reasons unrelated to negligence” for an elevator to stop in a shaftway negates the element of the doctrine that the event must be of a kind that ordinarily does not occur absent someone’s negligence). 
 
WFP also filed a motion for summary judgment; however, WFP established that the doctrine of res ipsa loquitur does not apply to it, as it ceded maintenance of the elevator to TEC.  See Sanchez v. New Scandic Wall L.P., 145 A.D.3d 643 (1st Dep’t 2016.).  WFP also established it lacked notice of the allegedly hazardous condition of the elevator.  See Levine v. City of New York, 67 A.D.3d 510 (1st Dep’t 2009).  A prior report of the elevator doors failing to open in a timely manner was not sufficient to constitute notice to WFP of a “free-fall” issue. 
 
As an aside, Plaintiff also cross-appealed seeking an adverse inference with respect to the elevator’s central processing unit (“CPU”).  TEC was notified of the accident and Plaintiff’s injury on the date of the accident.  TEC conceded it had control over the CPU and that it removed the CPU, replaced it, and failed to preserve it, but instead returned it under warranty as defective.  The Court found that the relevance of the CPU was clear.  Defendants’ expert opined that the CPU could have caused the elevator to malfunction.  Under these circumstances, the Court held that an appropriate adverse inference charge at the time of trial was warranted.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

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