Premises Pointers - Volume V, No. 9

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:

As reported last month, the Comprehensive Insurance Disclosure Act (CIDA) is soon to take effect. Attorney Dan Kohane has been watching the legislation closely and providing almost daily updates. This is what we know, CIDA, as amended, has passed both houses of the New York State Legislature and is on its way to the Governor. Assuming Governor Hochul signs it, CIDA will only apply to lawsuits that were commenced in 2022 and required disclosures will need to be made within 90 days of answers (or third-party answers) being filed in actions commenced this year. Dan’s team has prepared a summary of the CIDA requirements that we will be sharing with all our newsletter subscribers and clients as soon as the Governor signs the bill. Stay tuned.
 
In Hurwitz & Fine news, I am delighted to share that we have 3 new attorneys as of today who are officially admitted to the New York Bar! Congratulations to Aarti Chandan, a Premises Pointers contributor, Mark Nesbitt and Kyle Ruffner! I still recall the day I was admitted to the bar (25 years ago) which marked the beginning of my legal career (all 25 years spent at Hurwitz & Fine, by the way). I am thrilled to have Aarti, Mark and Kyle as colleagues!
 
We also have baby news to report! Our very own Marc Schulz (author of Premises Pointers column Homeowner Liability, Recreational Accidents, and Discovery Angles) and his wife welcomed a beautiful baby boy on Valentine’s Day. Marc will be taking some time off from Premises Pointers but will be back in a few months.
 
On a personal note, I am back on the road soon. I will be speaking at FDCC’s winter conference in a few weeks in Palm Desert, California, on the topic of Law Practice Management (my new area of expertise as I approach my 2-year anniversary as the Managing Partner of Hurwitz & Fine). It will be a nice break from what has turned into a long Buffalo winter! If you are interested in the FDCC (Federation of Defense and Corporate counsel), let me know. I would love to share with you what the Federation offers. It’s a wonderful organization!
 
Let’s hope by next month we will have winter almost behind us!

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:  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 

1/26/22            Leem v. 152-24 Northern, LLC
Appellate Division, 2^nd Department
Court upheld Supreme Court’s decision to deny Defendant’s motion for summary judgment because Defendant failed to establish that Plaintiff could not identify the cause of her fall.
 
Plaintiff commenced an action to recover for personal injuries she claimed to have sustained while exiting a restaurant when she tripped on a mat covering a sloped concrete ramp. Defendant filed a motion for summary judgment arguing that Plaintiff did not know what had caused her to fall. On appeal, the Court upheld the Supreme Court’s decision, finding that Defendant had failed to meet its prima facie burden and establish both that Plaintiff did not know what caused her to fall and that no dangerous or defective condition existed that could have caused her fall. The transcript of Plaintiff’s deposition testimony, which Defendant submitted in support of its motion, raised a triable issue of fact as to whether she tripped and fell on a sloped portion of sidewalk that was under the mat.
 
2/15/22            Bessette & Bessette v. Lowe’s Home Centers, LLC
United States District Court, Northern District of New York
Court found that falling sign at Lowe’s store was arguably foreseeable and therefore denied Defendant’s motion for summary judgment.
 
Plaintiff and his wife brought an action to recover damages for personal injuries he sustained in an accident at one of Defendant’s stores when Plaintiff attempted to pull a vertically displayed carpet remnant from a stack when the top of the carpet flopped over and hit two signs. The signs were made of foam core board and sat in metal frames, which were hinged at the bottom and attached at the top by magnets. When the carpet hit the signs, they swung down and hit Plaintiff on the head, resulting in alleged injuries.
 
Defendant filed a motion for summary judgment arguing that the danger of the falling signs was not foreseeable as a matter of law and that it did not have actual or constructive notice of the alleged dangerous condition. The court found that, although the signs were open and obvious, no evidence existed in the record to suggest that the signs’ hinges and magnetic attachment system, which allowed them to swing down, were obvious. The court determined that there were facts in the record from which a reasonable jury could conclude that the risk of the condition was foreseeable.
 
Turning next to notice, the court noted that Defendant did not provide any evidence to suggest that it was not responsible for installing the signs, stocking the carpets, or otherwise creating the condition which led to Plaintiff’s accident. The court pointed out that all evidence in the record suggested that Defendant and its employees did in fact create the condition in question, and concluded Defendant failed to demonstrate that there was no dispute of material fact regarding the dangerous condition.
 
2/16/22            Curry v. Eastern Extension, LLC
Appellate Division, 2^nd Department
Court upheld Supreme Court’s decision denying Plaintiff’s motion for summary judgment because Plaintiff failed to establish Defendant negligently maintained sidewalk where he fell.
 
Plaintiff sued to recover damages for personal injuries he allegedly sustained when he tripped and fell on a defect in the sidewalk abutting Defendant’s property. Plaintiff then filed a motion for summary judgment on the issue of liability, contending that Defendant’s negligent maintenance of the sidewalk had caused his fall. The court denied the motion and the case proceeded to a jury trial on the issue of liability. At trial, Defendant made an application to preclude Plaintiff’s expert regarding the alleged defect from testifying, which the court granted on the basis that the expert testimony was unnecessary. The jury decided in favor of Defendant on liability, finding that Defendant had not negligently maintained the sidewalk.
 
On appeal, following the jury verdict, the Court reiterated that the standard established by New York State case law for a plaintiff to prevail on a motion for summary judgment is that he must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect. The Court noted that Plaintiff did not provide any testimony as to the dimensions of the alleged sidewalk defect, that Plaintiff’s expert never visited the accident site, and the photographs relied upon by Plaintiff and his expert were of poor quality. Therefore, the Court found that Plaintiff failed to establish, prima facie, that the sidewalk was not maintained in a reasonably safe condition.

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

As most of you know, Super Bowl LVI took place this weekend.  The Los Angeles (St. Louis?) Rams defeated the Cincinnati Bengals 23-20.  Despite the loss, Bengals fans had something to cheer about.  On January 15, 2022, the Bengals won a Wild-Card matchup against the Las Vegas (Oakland? Los Angeles? Oakland again?) Raiders.  This was the Bengals’ first playoff victory since January 6, 1991.  Why is this important?  The first text message or SMS (Short Message Service) was sent on December 3, 1992, when a test engineer used a personal computer to send the text message “Merry Christmas” to the phone of another person.  Text messaging has been around for almost 20 years.  Yet, no person in the history of the world had ever sent a text message about the Bengals winning a playoff game! Until January 2022.  A small victory indeed. 
 
This month there is only one case detailed below.  Plaintiff alleged a trip and fall on a mis-leveled elevator.  Plaintiff and Defendants all moved for summary judgment.  Defendants moved for summary judgment contending they had no notice of the defective condition.  Plaintiff also moved for summary judgment contending that res ipsa loquitur applied.  The motions were all denied for various reasons.    
 
I hope you enjoy the ride.
 
Scott

2/1/2022           Aponte v. Bronx Preservation Housing Development Fund Corp., et al.
Appellate Division, First Department
Summary Judgment Motions Denied
 
Plaintiff filed suit for personal injuries sustained when she tripped exiting a mis-leveled elevator (the “Elevator”).  Defendants moved for summary judgment contending each did not have notice of any mis-leveling condition.  The Court denied Defendants’ motion relying on the theory of rep ipsa loquitur (often discussed in this column).  "Res ipsa loquitur permits a factfinder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant's exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff's part."  Ezzard v. One E. Riv. Place Realty Co., LLC, 129 A.D.3d 159, 162 (1st Dep’t 2015).  The First Department reiterated the long-standing principle that an elevator mis-leveling does not occur in the absence of negligence, which gives rise to the possible application of res ipsa.  See Ezzard, 129 A.D.3d at 163 (internal citations omitted).  The Court went one step further stating “the fact that plaintiff might not have been watching where she was going does not preclude application of res ipsa loquitur with regard to the mis-leveling of the elevator, because she did not voluntarily contribute to the mis-level."  See Carter v. N.Y.C. Hous. Auth., 176 A.D.3d 605, 606 (1st Dep’t 2019).
 
Normally, res ipsa does not apply to an owner or manager of a premise where the maintenance and repair of the elevator is ceded to a service provider pursuant to a comprehensive maintenance and repair contract.  This is because the owner and/or manager do not retain sufficient control of the elevator to render rep ipsa applicable to them.  Here, the Court found that triable issues of fact existed regarding owner/manager liability “because a factfinder could reasonably infer from the record evidence that these defendants, through the building superintendent, had actual or constructive notice that the elevator was mis-leveling, but failed to contact [the service provider] so it could address the problem.”
 
The Appellate Division further held that Plaintiff was not entitled to summary judgment on liability based on the application of res ipsa loquitur. This is not one of the "rarest of res ipsa loquitur cases" in which the plaintiff is entitled to summary judgment based on the doctrine, which "allows but does not require the jury to infer that the defendant was negligent" based on the circumstantial evidence.  Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209 (2006). 
 
Motions denied. 

    
Slip and Fall Law for All Seasons
By: Aarti Chandan 

A lot has changed since last month’s Premises Pointers: the weather is finally warming up, and notably, I was officially admitted to the practice of law.  Admittedly, I woke up this morning feeling a bit weird: I have finally achieved the goal I had been working so long to attain. But in reality, I know the work is just beginning, and I can’t wait to get started.

In this month’s edition of “Storm in Progress,” I will discuss a case out of the First Department in which the appellate court reversed the lower court’s denial of defendant’s motion for summary judgment dismissing the complaint. Here, the Court found that the Plaintiff did not meet its burden of demonstrating a triable issue of fact as to whether the defendant created or exacerbated the hazardous condition through its snow removal activities.
 

1/27/22                        Lewis v. 311 Realty, LLC
Appellate Division, 1^st Department
First Department reverses lower court’s denial of defendant’s motion for summary judgment dismissing the complaint.

Defendant established prima facie that it was not negligent in connection with plaintiff’s slip and fall on the exterior landing in front of its building by submitting climatological records and an affidavit showing that there was a winter storm in progress at the time of the accident. Under the storm in progress doctrine, a landowner’s duty is ongoing until a reasonable time after the storm has ended. Under the storm in progress doctrine, a plaintiff may defeat summary judgment by raising a triable issue of fact as to whether the landowner had undertaken snow removal activities that created or exacerbated a hazardous condition.

Here, Plaintiff conceded that there was a storm in progress at the time of the accident. Thus, the burden shifted to the plaintiff to demonstrate that the existence of a triable issue of fact as to whether defendant created or exacerbated the hazardous condition through its snow removal activities. Plaintiff did not meet its burden. Moreover, Plaintiff did not allege that the defendant gratuitously and negligently performed snow and ice removal operations or that its failure to place sand or salt on the exterior landing in front of its building created or exacerbated a dangerous condition. The Court found the plaintiff’s remaining arguments and found them unavailing. As such, the Plaintiff did not meet its burden and the decision of the lower court was reversed.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]