Premises Pointers - Volume V, No. 8

Volume V, No. 8
Friday, January 21, 2022

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.

This month, I am excited to announce the launch of our High Exposure/Catastrophic Injury and Loss (CAT) Team at the firm. Since our litigation attorneys have always handled cases involving high exposure claims, we have created a dedicated team of veteran trial and insurance coverage attorneys, in-house registered nurses, and experienced paralegals who are able to quickly mobilize to respond to any type of high exposure claim ranging from catastrophic injury cases to property claims. This team works hand and hand with our 24-hour emergency response team to ensure immediate involvement, when needed, followed by exert handling of the claim through resolution. Our attorneys on the team, all of whom have specific expertise in all areas ranging from product liability, medical malpractice, construction site accidents and transportation negligence to property damage, can be reached at any time. They include:

I am also thrilled to announce that Hurwitz & Fine ranks as the eighth largest Buffalo law firm for the third year by Buffalo Business First. We continue to grow with more than 40 attorneys in the Buffalo area and have more than 50 attorneys in total across New York and Connecticut.

In other news, Dan Kohane has been covering the adoption of the CIDA - Comprehensive Insurance Disclosure Act – impacting the disclosure of insurance information. The new CPLR requirement is below:

§ 3122-b. Certification of insurance disclosure. Information provided pursuant to [CPLR 3101(f)] shall be accompanied by a certification by the defendant, third-party defendant, or defendant on a cross-claim or counter-claim and a certification by any attorney appearing for the defendant, third-party defendant, or defendant on a cross-claim or counter-claim, sworn in the form of an affidavit or affirmation where appropriate, stating that the information is accurate and complete, and that reasonable efforts have been undertaken, and in accordance with [CPLR 3101(f)(2) will be undertaken, to ensure that this information remains accurate and complete.

You can check out Coverage Pointers and Products Liability Pointers for a more detailed description of what this means going forward and what is required in order to comply.

Lastly, I am delighted to welcome Aarti Chandan to the Premises Pointers team! Aarti joined the firm in September and is waiting to be admitted to the New York State Bar in just a few short weeks. She is a member of the Premises Liability and Transportation Negligence Practice Groups.



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] 

12/22/21 Montalvo v. Texas Roadhouse Holdings, LLC
Appellate Division, 2nd Department
Court upheld Supreme Court’s decision to grant Defendant’s motion for summary judgment because Defendant established it did not have a duty to illuminate dark walkway where Plaintiff fell.

Plaintiff brought an action to recover for personal injuries she allegedly sustained when she fell as she stepped down from a walkway to the parking lot after exiting Defendant’s restaurant, which was located in a strip mall. Defendant filed a motion for summary judgment, arguing that it had no duty to illuminate the common area where Plaintiff’s fall occurred. The Supreme Court granted Defendant’s motion.

On appeal, the Court found that Defendant met its prima facie burden by establishing that it did not own, occupy, control, or make special use of the common area where Plaintiff’s accident occurred, and therefore did not have a duty to illuminate the area. The Court further determined that the lease between Defendant and its landlord did not obligate Defendant to illuminate the common areas. The Court found that Plaintiff failed to raise a triable issue of fact as to whether Defendant owed her a duty of care.

12/29/21 Ryals v. West 21st Street Properties, LLC et al.
Appellate Division, 2nd Department
Defendant granted summary judgment because it properly established it was an out-of-possession landlord of premises where plaintiff was shot.

Plaintiff commenced a consolidated action to recover for injuries he sustained as the result of being shot inside a nightclub operated by defendant 539 JB Enterprises, Ltd in a building owned by defendant West 21st Street Properties, LLC. Defendant West 21st moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, which the Supreme Court denied. West 21st then moved, inter alia, to renew the branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it. The court granted the portion of West 21st's motion which was for leave to renew the branch of its prior motion and, upon renewal, granted that branch of West 21st's prior motion.

On appeal, the Court determined that the Supreme Court appropriately exercised its discretion in granting that branch of West 21st's motion which was for leave to renew the branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it. Referencing CPLR 2221(e)(2), the Court noted that West 21st had submitted evidence of new facts not offered on the prior motion that would change the court's determination, and had also presented reasonable justification for its failure to submit those facts on its prior motion.

New York State case law has established that an out-of-possession landlord is not liable for injuries that occur on leased premises due to criminal acts of third parties unless it has retained control over the premises or is contractually obligated to provide security. The Court found that West 21st had established that it was an out-of-possession landlord that did not retain control over

the premises where the plaintiff was injured or over the operation of the nightclub and was not contractually obligated to provide security.

1/11/2022 Lanza v. B.H.N.V. Realty Corp et al.
Appellate Division, 1st Department
Court reversed Supreme Court’s denial of Defendant’s motion for summary judgment because there was no evidence of negligence in the placement of “glue trap” underneath a greeting card cabinet that caused plaintiff’s fall.

Plaintiff sued to recover for injuries she allegedly sustained when she tripped and fell on a “glue trap” that Defendant Rentokil had placed in a Rite Aid store underneath a greeting card cabinet. Defendant Rite Aid and third-party Defendant Rentokil filed motions for summary judgment, which the Supreme Court denied.

On appeal, the Court noted that Rite Aid had a duty to maintain its store in a reasonably safe condition and thus could be held vicariously liable for the negligence of Rentokil, its independent contractor. The Court further noted that Rite Aid could be held directly liable to the plaintiff if it had actual or constructive notice of the glue trap that caused plaintiff’s fall. The Court determined that the record established that Rite Aid was not directly or indirectly liable, as there was no evidence it had actual or constructive notice. Additionally, the Court found that the evidence established Rentokil was not negligent in the placement of the subject glue trap and therefore its motion for summary judgment should have been granted.

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

Dear Readers,


1/11/22 Secky v. New Paltz
Court of Appeals
Court of Appeals grants leave to appeal in primary assumption of risk case.

The Court of Appeals has granted leave to appeal a Third Department decision published in June 2021. The underlying lawsuit was a personal injury claim filed on behalf a 14 year old student in the District who was injured when she collided with a set of bleachers during a drill at basketball practice.

Plaintiff conceded that the bleachers were open and obvious and that she was aware of their presence but claimed that the drill she was participating in required the players to disregard the boundary lines of the court and thus heightened the risks inherent in the sport. The Third Department rejected this argument as well as the opinion of her liability expert, that the drill could have been safer if the boundary lines of the court had been properly utilized. We will follow this case and provide you with the Court of Appeals opinion when published.

12/2/21 In the Matter of Christopher M. as P/G of B.M. v. Boquet Valley Central School District f/k/a Westport Central School
Appellate Division, Third Department
With no evidence of substantial prejudice, late notice of claim allowed against District with knowledge of harassing and bullying behavior against Claimant.

Claimant, a minor, was a member of the District’s track team who sought leave to serve a late notice of claim against the District. The proposed Notice of Claim arose from alleged bullying and harassment and contained claims for negligent supervision and intentional infliction of emotional distress. On appeal, the Third Department affirmed the trial court’s ruling granting the Claimant’s petition for leave to serve a late Notice of Claim and held: that there was evidence to show that the District knew about the behavior that gave rise to the claims; that the District failed to make a particularized evidentiary showing of substantial prejudice; and that a petitioner’s failure to establish a nexus between the student’s infancy and the delay in serving a notice of claim was not fatal to an application for leave to serve a late notice of claim. Particularly persuasive to the Court was correspondence establishing that the Claimants parents disclosed to, and discussed with, District officials, multiple instances of harassment against the Claimant.

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

Hello Subscribers!

to all those who won their fantasy football leagues! The Bills versus Chiefs game is the premier matchup in the NFL divisional round this upcoming weekend. Hopefully the Bills will be hungry to avenge last year’s playoff loss in Arrowhead and come out ready to play. GO BILLS!

This month, I found an interesting discovery case, where the trial court granted a motion for a protective order and directed the suppression of prior deposition testimony. CPLR § 3103(c) permits the suppression of information from disclosure “improperly or irregularly obtained so that a substantial right of a party is prejudiced.” Another issue in that case was the First Department sanctioning of an attorney’s behavior it deemed frivolous and unprofessional at the deposition of a nonparty witness. Pursuant to 22 NYCRR 130-1.1(a), a court “in its discretion, may award to any party or attorney in any civil action or proceeding before the court … costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct” and, in “addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part.” Under 22 NYCRR 130-1.1, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. I am interested in hearing from our readers and any stories relating to the suppression of information from discovery or sanction motions involving frivolous conduct, just send me an email or give me a shout.

Until next issue, stay safe …


01/18/22 Gendell v 42 W. 17th St. Hous. Corp.
Appellate Division, First Department
Plaintiff entitled to conduct discovery and deposition of nonparty witness, who had knowledge on issues that are “material and necessary” to plaintiff’s claims.

The trial court granted defendants’ motion for a protective order barring the continuation of the deposition of a nonparty witness and sua sponte directing the suppression of deposition testimony previously taken and denied that portion of the motion seeking sanctions under 22 NYCRR 130.1 against plaintiff’s former counsel.

The First Department reversed and vacated that portion of the trial court’s order directing suppression of the deposition testimony, ordering the deposition to continue. It was an improvident exercise of discretion for the trial court to issue a protective order under CPLR § 3103(a) barring a continuation of the nonparty’s deposition, since she is the majority shareholder of defendant and was a member of the Board during a period of time when decisions were made about building maintenance, which the Court deemed a relevant issue in plaintiff’s action. Thus, the Court found her testimony is “material and necessary” to plaintiff’s claims.

The Court also held that defendants made no showing that evidence was improperly or irregularly obtained during the deposition, or that prejudice to a substantial right had accrued through discovery of improperly obtained evidence (see Coast to Coast Energy, Inc. v Gasarch, 77 AD3d 589, 589 [1st Dept 2010]; compare Amade v Estrich, 182 AD3d 1109, 1110 [4th Dept 1992] [defendant’s submission of misleading photographs to court in response to discovery demand prejudiced a substantial right of the plaintiffs, and court therefore properly exercised its discretion in precluding use of the portion of the deposition testimony that was referrable to misleading photographs]). Therefore, it was error for the trial court to sua sponte issue a suppression order of the nonparty’s testimony previously taken.

Nonetheless, the Court determined that the behavior of plaintiff’s counsel at the deposition was frivolous and unprofessional as he called the witness “a liar” and told her on the record that she had done “plenty wrong” and had “plenty to worry about in this case”, despite that she was not a party to the action. Accordingly, the Court also reversed the trial court and sanctioned plaintiff’s former counsel in the amount of $5,000 for frivolous conduct.

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

“Milli” is the unit prefix for a factor of one thousand (10-3).  The prefix is Latin, meaning 1,000 and is commonly used as part of the metric system.  It is often used to represent units of 1,000, such as “milligram,”  “millisecond,” or “millipede.”  What if I told you that there was no such thing as a true millipede…until now.  Millipedes are arthropods that are typically characterized by pairs of jointed legs on body segments.  Scientifically, they are known as Diplopoda, a name derived from their identifiable paired legs.  The name millipede implies 1,000 legs; however, no species was known to have 1,000 legs or more until a very recent discovery.  The first true millipede was discovered in Western Australia possessing 1,306 legs.  Researchers reported the finding in December in Scientific Reports.  Named Eumillipes Persephone, it is the first 1,000-legged millipede known to walk the earth.  That is a lot of steps. 

This month we look at a procedural and a substantive matter.  In the first, Plaintiff moved to Amend the Complaint to change the date of incident to one year prior to her original allegation.  A motion to amend a pleading may be made “at any time,” and leave “shall be freely given upon such terms as may be just.”  (See CPLR § 3025(b).)  The trial court is provided broad discretion in determining whether to allow the amendment.  Delay alone is insufficient to bar an amendment to the pleading; rather “[i]t must be lateness coupled with significant prejudice to the other side.”  (Edenwald Contr. Co. v. City of N.Y., 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 56 (1983) (internal citations omitted); see Coleman v. Worster, 140 A.D.3d 1002, 35 N.Y.S.3d 354 (2d Dep’t 2016).  In this case, Defendant argued the delay was the prejudice.  The Court analyzed whether this was enough to deny Plaintiff’s motion.  In the second case,  Plaintiff alleged a trip and fall on a mis-leveled elevator.  The Court relied heavily on the Expert Affidavits of all parties in reviewing Defendants’ motions for summary judgment.  It was a battle of the experts.  

I hope you enjoy the ride. 


12/23/2021                  Sanchez v. Aldi Inc., et al.
Supreme Court, New York County
Supreme Court Grants Plaintiff’s Motion to Amend the Caption

Plaintiff, Glendalee Sanchez (“Plaintiff”), filed a Complaint on November 12, 2020 (the “Complaint”), alleging that she was injured on an escalator on December 23, 2018.  Plaintiff re-iterated that the escalator accident and resultant injury occurred on December 23, 2018, in her Verified Bill of Particulars served January 29, 2021. 

On August 31, 2021, Plaintiff moved pursuant to CPLR 3025 to amend her Complaint to change the date of the alleged incident from December 23, 2018, to December 22, 20217 (not a typo).  Plaintiff’s Affirmation in Support represented that “[a]fter further investigation and review of [p]laintiff’s medical records, it was discovered that the subject accident occurred on December 22, 2017.  This was the only excuse provided. 

Defendant, Aldi Inc. (“Aldi”), opposed the motion.  Aldi argued that Plaintiff’s lengthy delay in seeking to amend the Complaint was prejudicial to the defense of the case.  In addition, Aldi argued that Plaintiff failed to submit evidence substantiating the merit of the amendment.  Aldi asserted that Plaintiff’s delay was excessive and therefore prejudicial; however, Aldi failed to elaborate on how the granting of the motion would affect its ability to defend the case.  (See Loomis v. Civetta Corinno Const. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 573 (1981); Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 745 (2014). 

The Court found that Plaintiff was entitled to amend the Complaint to change the date of the incident, reasoning that the change would not cause surprise or prejudice to Defendants.  There was no indication that the incident date was central to defendants’ theory of the case.  (See Dockery v. UPACA Site 7 Assoc., LP, 148 A.D.3d 580, 580, 48 N.Y.S.3d 603, 603 (1st Dep’t 2017).)  In addition, discovery was still in its early stage (i.e., no Preliminary Conference).  (See Charles v. William Penn Life Ins. Co. of N.Y., 162 A.D.3d 490, 75 N.Y.S.3d 36 (Mem.) (1st Dep’t 2018).) 

Plaintiff was entitled to amend the complaint as proposed.  Motion granted.

12/22/2021               Skolnick v. Rosebrook Building Corp., et al.
Supreme Court, Kings County
Expert Affidavits Raised Issue of Fact Precluding Summary Judgment

Defendants, Millennium Elevator Group, Inc. and Millennium Elevator, Inc. (collectively, “Millennium”), moved for summary judgment seeking to dismiss Plaintiff’s Complaint and all crossclaims of Co-Defendant, Rosebrook Building Corp. (“Owner”).  Owner moved for summary judgment seeking the same relief.   Plaintiff alleged injuries arising from an incident when she tripped stepping out of a mis-leveled elevator (the “Elevator”), located at 2718 Ocean Avenue, Brooklyn, New York (the “Premises”).  Plaintiff testified that while exiting the Elevator, she did not realize it was mis-leveled over 1-foot below the landing. 

In support of their motions, Defendants provided testimony of the Premises’ superintendent, who stated that he conducted daily inspections of the Elevator and that no one ever complained of a mis-level prior to the date of incident.  Millennium further relied upon the testimony of its General Manager and mechanic who maintained the Elevator.  Millennium also submitted the Affidavit of P.E. Jon B. Halpern.  Owner submitted evidence that Plaintiff (who lived in the building for 25 years) never experienced any prior problems with the Elevator. 

In opposition, Plaintiff opposed both motions and submitted photographs of the Elevator mis-leveling.  Plaintiff relied upon her own testimony that other tenants often made complaints of mis-leveling.  Plaintiff also provided the affidavit of consultant, Patrick A. Carrajat.  Mr. Carajat opined that Millennium’s failure to perform proper maintenance and repair the leveling system was the proximate cause of the incident. 

Defendants established prima facie entitlement to judgment as a matter of law; however, Plaintiff raised triable issues of fact in opposition through the affidavit of Mr. Carrajat.  The Court carefully reviewed Mr. Carrajat’s opinions that the issues with the Elevator could not have occurred without Millennium’s negligence in failing to repair and care for the leveling system. He also opined that there were feasible and economical devices available to ensure proper leveling within the last 20 years, during which time the Elevator was overdue for modernization. Further, Owner’s argument that it did not have notice of issues with the Elevator was unavailing, given the elevator’s extensive history of defects and complaints, which include complaints in 2011 that “the elevator does not stop on some floors” and in 2010 that the Elevator “stops in between floors, gets stuck and doesn’t stop level with the floor.” In tandem with Millennium’s contention that it advised Owner several times that the Elevator required modernization, there are questions of fact as to whether the Owner had actual or constructive notice of potential issues of mis-leveling with the subject elevator.

Motions Denied.
Slip and Fall Law for All Seasons
By: Aarti Chandan 

Welcome to “Storm in Progress,” my new column in Premises Pointers. As one of the newest associates at Hurwitz & Fine, I am thrilled to have been given the opportunity to provide readers with emerging slip-and-fall decisions.

Before I begin, I must mention this past weekend’s epic playoff game. As the players had to battle through snow and ice to give us that historic win against the Patriots, it seems appropriate that I discuss decisions related to snow and ice. Go Bills!

This month, I will discuss a case out of the Second Department in which the appellate court affirmed the lower court’s denial of the Defendant’s summary judgment motion to dismiss the action. The Defense argued that the “storm in progress” rule applied, thus precluding its liability.

1/12/22 – McCullagh v. City of New York
Appellate Division, Second Department
Second Department affirms lower court’s denial of Defendant’s summary judgment motion due to lack of sufficient evidence of a storm in progress.

Plaintiff was injured when he allegedly slipped and fell on ice on a walkway leading to the rear entrance of the Queens County Criminal Court. Defendant moved for summary judgment dismissing the complaint, contending that the “storm in progress” rule applied and that it neither created nor had notice of the ice condition. The Supreme Court denied the motion.

Under the storm in progress rule, a property owner will not be held responsible for accidents occurring as a result of the of the accumulation of snow and ice on its premises until enough time has passed following the end of the storm to allow the owner to remedy the hazards caused by the storm.

The Second Department agreed with the Supreme Court’s denial of said motion and affirmed the decision. The Court based its decision on the fact that the defendant’s evidence, including climatological data, was insufficient to demonstrate, prima facie, that a storm was in progress at the time of the accident, or that it did not have a reasonable opportunity to remedy the slippery condition. Additionally, Defendant failed to establish, prima facie, that it neither created the ice condition nor had actual or constructive notice of the condition. As such, the Defendant was not entitled to summary judgment as it did not meet its prima facie burden.

Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]


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