NOTE FROM THE EDITOR:
It has been an exciting month for us! On June 1st, our firm celebrated its 45th anniversary. In tandem with this milestone, we launched our new name—Hurwitz Fine P.C. (we’ve dropped the ampersand!)—and new visual identity, which includes a new logo. Our new logo combines the “H” and “F” into an interlocked HF unit to represent the synergy of the firm’s diverse group of attorneys and their singular focus on achieving successful client outcomes. Its patina color pays homage to the Lady Liberty statues on the top of the Liberty Office Building in downtown Buffalo, where we first opened our doors in 1977, and are still headquartered today. Our one-word tagline, Proven., communicates the hard work and hard-won solutions and victories on behalf of our clients, while serving as an inspiration for navigating future matters.
Thanks to all of our supportive and loyal clients, it’s been a wonderful journey—you have been an important part of our growth and success!
We are excited by this evolution of our brand, our continued growth and commitment to our clients.
To celebrate our anniversary and launch our new brand, we hosted an event with attorneys from across all nine of our locations.
Cheers to the next 45 years!
And don’t forget to subscribe to our other publications:
Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to be added to the mailing list.
Employment & Business Litigation Pointers: This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] if you would like to subscribe.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]
6/8/22 DiScalo v. Mannix Family Market
Appellate Division, Second Department
Court reversed Supreme Court’s decision denying Defendant’s motion for summary judgment, finding the flattened cardboard box which caused Plaintiff’s fall was open and obvious, and that Plaintiff had failed to raise a triable issue of fact.
Plaintiff sued to recover for personal injuries she claimed to have sustained when she slipped and fell on a flattened cardboard box lying on the floor of an aisle in Defendant’s grocery store. Defendant filed a motion for summary judgment, which the Supreme Court denied.
On appeal, the Court found that the flattened cardboard box was open and obvious and not inherently dangerous. Plaintiff had testified that she saw the cardboard prior to her fall, as well as an employee stocking shelves nearby. She further testified that she intended to step on the cardboard to reach a product on a shelf. The Court reversed the lower court’s decision and granted Defendant’s motion.
6/2/22 Bovee v. Posniewski Enterprises, Inc. et al.
Appellate Division, Third Department
Court reversed Supreme Court’s decision granting Defendants’ motion for summary judgment because Defendants failed to establish the cause of Plaintiff’s fall was speculative and questions of fact existed regarding the cracked pavement of Defendants’ parking lot where Plaintiff fell.
Plaintiff brought an action to recover for injuries he allegedly sustained in when he tripped and fell in the parking lot of Defendants’ store. Defendants moved for summary judgment arguing that Plaintiff was unable to identify what caused his fall, they had no notice of the defect, and the defect was trivial. The Supreme Court found that Plaintiff’s testimony pertaining to the cause of his fall was speculative and granted Defendants’ motion.
On appeal, the Court noted that, despite some inconsistencies in Plaintiff’s statements, he was unwavering in his testimony that he had tripped on one of two cracks in the pavement of the parking lot. When shown photographs of the parking lot, he had identified the location of his fall in a photograph which also depicted two cracks in the pavement in close proximity to each other. Although Plaintiff was unsure which of the two cracks caused his fall, the Court determined that he was not required to state with certainty the particular crack which caused the fall, and that a jury could rationally infer from his testimony, without speculating, that one of the two cracks was the cause of the fall.
Turning next to the issue of notice, the Court found that the testimony of the store’s co-owner, along with photographs of the pavement, revealed triable issues of fact regarding both the visibility of the defect in the pavement as well the duration of its existence prior to Plaintiff’s accident to make it discoverable. Therefore, Defendants failed to meet their burden of demonstrating that they did not have actual or constructive notice of the dangerous condition.
Regarding the issue of trivial defect, the Court referenced the affidavit of Plaintiff’s expert engineer, who had inspected the area of the parking lot where plaintiff fell and determined that it was in poor condition due to the presence of multiple cracks and a heave, not readily observable, that raised the pavement’s height approximately one inch above grade. Based on those circumstances, the Court found that the issue of whether the defect was trivial should be left for a jury.
5/25/22 Redendo v. Central Avenue Chrysler Jeep, Inc.
Appellate Division, Second Department
Court reversed Supreme Court’s decision granting Defendants’ motion for summary judgment because Defenndants failed to establish that they did not create the condition which caused Plaintiff to fall in their bathroom.
Plaintiff commenced an action to recover for injuries he alleged to have sustained when he slipped and fell near the sink in a bathroom in Defendants’ car dealership. Defendants filed a motion for summary judgment on the basis that they did not create the alleged hazardous condition, that they did not have actual or constructive notice of the condition, and that Plaintiff did not know what caused his fall. The Supreme Court granted Defendants’ motion.
On appeal, the Court found that Defendants failed to establish that Plaintiff did not know what had caused his fall. Plaintiff had testified that, prior to his accident, he did not see the condition which caused him to fall, but that his pants became wet after his fall. The Court further determined that Defendants failed to establish, prima facie, that they did not create the alleged condition or have notice of its existence. Finding that they failed to meet their burden as the moving party, the Court found that their summary judgment motion dismissing the complaint should have been denied. The Court then reversed the judgment and reinstated the complaint.
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
We celebrated the Firm’s 45th anniversary last week and it was great to get together in-person with colleagues and clients. With courts disfavoring discovery motions in the post-COVID world, it is becoming harder to find discovery premises cases to report on. This month, I discuss a pre-action discovery case under CPLR § 3102(c). That section states “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order …” However, pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists. Rather, pre-action discovery is only available where a petitioner demonstrates that it has a meritorious claim and the information sought is material and necessary to the claim. The GTV Media Group case is a great reminder that CPLR § 3102(c) motions should not used to evaluate whether a meritorious cause of action exists. If you have an interesting pre-action discovery issue or have delt with this issue in the past, I’d like to hear about your experiences, so please reach out.
Until next issue, stay safe …
05/19/22 GTV Media Group, Inc. v Confidential Global Investigations
Appellate Division, First Department
Petitioner not entitled to pre-suit discovery since the petition seeks to merely ascertain whether petitioner may have a meritorious claim.
The trial court denied, sub silentio, petitioner’s motion for a default judgment on its petition and dismissed the proceeding because the petition did not allege facts concerning the cause of action and lacked any description of a potential defendant. Accordingly, the court characterized the petition as an attempt to determine whether it may have a meritorious claim, which is an inappropriate use of CPLR § 3102.
Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
Dictionary.com defines adoption as (1) the act or process of establishing a legal relationship between a child and a parent other than the child’s biological parent, thereby entrusting the designated adult with responsibility for raising the child; and (2) the act or process of acquiring a pet. As humans we often do both – enlarging our families with child and pet adoptions. However, adoption in the animal world is rare. Researchers have observed bonobos (an endangered great ape species) adopting infants from outside of their own communities. Two female bonobos, in the Luo Scientific Reserve in Congo “adopted” orphan bonobos. Researchers witnessed the female bonobos caring for the young bonobos which included carrying and feeding them. Bonobos (along with the chimpanzee) are the closest existing relative to humans. Nonetheless, these adoptions may be the first recorded cases of great apes adopting unrelated individuals.
I hope you enjoy the ride.
5/19/2022 Latteri v. Port Authority of New York & New Jersey
Appellate Division, First Department
Plaintiff’s failure to utilize safety harness was not the sole proximate cause of the injury.
Plaintiff – a mechanical technician – accessed an enclosed crawl space located beneath an AirTrain station escalator (the “Escalator”) to gain access to an upper area of the Escalator that required repair. Plaintiff diagnosed the problem and descended the 15-foot ramp, which paralleled the slope of the Escalator. While descending, Plaintiff slipped. To avoid falling (from a height), he grabbed an overhead metal truss, causing injury to his shoulder. Plaintiff moved for partial summary judgment pursuant to Labor Law § 240(1). Defendant moved for summary judgment seeking to dismiss the Plaintiff’s Labor Law §§ 240(1) and 241(6) claims. The Supreme Court, Bronx County granted Plaintiff’s Motion and denied Defendant’s Motion.
The First Department found that the ramp lacked siderails for support. Thus, Plaintiff established his prima facie claim under Labor Law 240(1). See generally Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 267-68 (2001); Cahill v. Triborough Bridge & Tunnel Auth. 4 N.Y.3d 35, 39 (2004). The Court found Defendant’s argument unavailing. Defendant argued that Plaintiff’s decision not to wear a harness issued by his employer was the sole proximate cause of the injury. Defendant offered no evidence that: (1) tie off locations were available to utilize the harness; (2) that it would have protected him from injury; (3) that he knew he was supposed to use a harness; or (4) that he disregarded specific instructions to wear a harness. See Kehoe v. 61 Broadway Owner LLC, 186 A.D.3d 1143, 1144 (1st Dep’t 2020), lv dismissed 36 N.Y.3d 959 (2021). The evidence presented revealed that the ramp used failed to provide proper protection and was poorly lit. Moreover, Plaintiff’s failure to use a harness amounted (at most) to comparative negligence, which is not a defense to a Labor Law § 240(1) claim. Id.
The Supreme Court dismissed (and the First Department affirmed) the Labor Law § 200 and common-law negligence claims, and in light of the grant of summary judgment to Plaintiff on the Labor Law § 240(1) claim, the Labor Law § 241(6) claim was deemed academic. See Jerez v. Tishman Constr. Corp. of N.Y., 118 A.D.3d 617 (1st Dep’t 2014).
Slip and Fall Law for All Seasons
By: Aarti Chandan [email protected]
This month, I’ll be discussing two cases: one out of the First Department and one out of the Second Department. In Hernandez v. NY Prepaid Wireless LLC, the Appellate Court affirmed the lower court’s denial of Defendant’s motion for summary judgment. The court found that the defendant failed to establish prima facie that it did not have notice of the allegedly dangerous condition. In Redendo v. Central Avenue Chrysler Jeep, Inc., the Appellate Court reversed the lower court’s grant of Defendant’s motion for summary judgment dismissing the complaint. There, the court held that the defendants failed to establish prima facie that the plaintiff did not know what caused him to fall. Further, the court held that the defendants failed to establish that they did not create the allegedly dangerous condition or have actual or constructive notice of its existence.
6/2/22 Hernandez v. NY Prepaid Wireless LLC
Appellate Division, First Department, affirms lower court’s denial of Defendant’s motion for summary judgment dismissing the complaint.
Plaintiff commenced this action after allegedly walking past the property leased to Defendant and slipping on wet cellar doors. The doors were embedded in the sidewalk in front of the premises.
In a slip-and-fall case, a defendant moving for summary judgment has the burden of making prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.
Here, the court held that Defendant Prepaid Wireless failed to establish prima facie that it was entitled to dismissal of the complaint against it. While the record contained no evidence that Defendant actually caused or created the cellar doors’ allegedly dangerous condition, Defendant also failed to establish that it had no notice that the cellar doors were slippery when wet. On the contrary, Plaintiff stated in his testimony, which Defendant submitted on its motion, that he had seen multiple people slip and fall on the cellar doors before the day of his accident.
The Appellate Court affirmed the lower court’s decision, finding that Defendant failed to meet its prima facie burden.
5/25/22 Redendo v. Central Avenue Chrysler Jeep, Inc.
Appellate Division, Second Department, reversed lower court’s grant of Defendants’ motion for summary judgment dismissing the complaint.
Plaintiff commenced this action after allegedly slipping and falling inside one of the bathrooms of the defendant’s car dealership. Plaintiff testified that he saw a man who he believed was an employee of Defendant exit from the bathroom immediately before he entered. Defendant’s porter testified that “very few times” he had seen drops of water on the floor near the sink. Further, the porter testified that he assumed the drops of water were a resulted from people using the sink to wash their hands.
In a slip-and-fall case, a defendant moving for summary judgment has the burden of making prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. Additionally, a defendant can establish its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the fall.
Here, the defendants failed to establish, prima facie, that the plaintiff did not know what had caused him to fall. While Plaintiff testified that he did not see the condition that caused him to fall, he did testify that, after he fell, his pants became wet. “Contrary to the defendants’ contention, this testimony does not establish that the cause of the plaintiff’s fall cannot be identified without engaging in speculation.” Finally, the court also held that defendants failed to establish, prima facie, that they did not create the alleged condition that cause the plaintiff to fall or have actual or constructive notice of its existence.
Because the defendants failed to meet their initial burden as the movants, the Appellate Court reversed the lower court’s finding and denied defendants’ motion for summary judgment dismissing the complaint.
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