Premises Pointers - Volume VI, No. 10


Volume VI, No. 10
Thursday, March 31, 2023
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 introduce attorney Richelle Kloch who was recently admitted to the New York Bar in February. Richelle joins me as a co-columnist covering all things retail, restaurant and hospitality related.
Last month I mentioned that Premiers Pointers columnist Anastasia McCarthy and I were nominated as finalists for the ATHENA Leadership Award and Young Professional Leadership Awards. This week, we were honored to be among the finalists selected from across Western New York at the 2023 ATHENA Awards® even held in Downtown Buffalo. It was a wonderful event honoring some truly remarkable women in our area. The pillars of Athena which resonate with me as a woman and lawyer are to:

1. Live Authentically

2. Learn Constantly

3. Build Relationships

4. Foster Collaboration

5. Act Courageously

6. Advocate Fiercely

7. Give Back

8. Celebrate

Through our employee resource group at Hurwitz Fine, the Forum for Women Attorneys, we aim to keep the discussion moving forward and are focused on these pillars in our practices and community work. Our next event will focus on how women can help one another succeed, how to build a support network within and outside your place of employment, cross-generational opportunities, and self-imposed barriers to advancement. As these are topics very near to me, I would love to hear from you on how your workplaces are providing support in these areas so please drop me a note!

Until next month,


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.

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 Richelle R. Kloch [email protected]

2/21/23  Florsheim v. Marriott International, Inc.
New York Appellate Division, First Department
Court granted Defendants’ motion for summary judgment because the defect was trivial and ruled an affirmative showing of lack of notice is not required when other grounds for dismissal exist.
Plaintiff brought an action to recover for injuries she sustained when she allegedly fell after her left toe contacted an expansion joint that ran across the width of a hallway in Defendants’ hotel. Defendants (Marriott) moved for summary judgment.
Defendants argued that the alleged defect was trivial. In support of their argument, Defendants pointed to photographs, which showed that the expansion joint, an essential feature in large commercial buildings, was located in a well-lit hallway. The carpet patterns and colors also contrasted the color of the joint, and nothing was covering or hiding it. The photos show a very shallow slope on the sides of the joint opening into the hallway and elevator bank. The Defendants next pointed to evidence that, over multiple days leading up to the incident, the Plaintiff traversed over the expansion joint several times with no issue. The Defendants also submitted in support of their motion a report from their expert which notes that the measurements of the expansion joint resulted in an insignificant height differential.
In response, Plaintiff submitted the same exact report as Defendants with some additions. Plaintiff’s report specifically included a photograph of where Plaintiff's toe came into contact with the expansion joint. However, the report completely failed to include the measurements of the exact area where Plaintiff hit her toe. The court, therefore, found that the expert report was speculative and failed to raise an issue of fact.
The court also found that Plaintiff's argument that Defendants failed to establish prima facie that they neither created nor possessed notice of the defect, which would result in the summary judgment motion being denied, was unavailing. The court specifically stated that “[a] defendant moving for summary judgment in a slip-and-fall case is not obliged to demonstrate lack of notice if it can prevail on another ground.” Therefore, the Defendants’ motion for summary judgment was granted since the Defendants demonstrated prima facie that the defect was trivial.
2/15/23 Smith v. Dutchess Motor Lodge
New York Appellate Division, Second Department
Plaintiff’s use of an unguarded window well, located on the motel’s property, to urinate was not deemed a misuse sufficient to negate Defendant’s duty to maintain the premises in a reasonably safe condition.
Plaintiff brought two actions to recover for injuries he sustained when he allegedly tripped on the elevated border of an unguarded cellar window well and fell into the well. The Plaintiff walked to the side of a motel, the Dutchess Motor Lodge, to urinate when the incident occurred. The well allegedly contained a piece of a broken glass vase, which became lodged in the plaintiff's right wrist during the incident. The first action was commenced against Dutchess Motor Lodge, among others, and the second action was commenced against William Yeno, the owner of the building. Both actions were consolidated, and the Defendants moved for summary judgment.
Defendants argued that they could not be held liable for Plaintiff's unforeseeable misuse of the property and that they were without notice of the broken glass which cut Plaintiff's wrist. However, the lower court found that the Plaintiff's use of the premises was not unforeseeable because the Plaintiff did not traverse any restricted areas or treacherous terrain when stepping into the darkness to urinate behind the premises.

While there is no duty to protect or warn against (1) an open and obvious condition that is not inherently dangerous, or (2) an extraordinary occurrence which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against, the owners of a property are still under a duty to maintain their property in a reasonably safe condition. The Second Department, therefore, agreed with the lower court. The Defendants failed to establish, prima facie, that the Plaintiff's accident was the product of the Plaintiff's misuse of the Defendant's property or constituted an extraordinary occurrence, and that they did not owe the Plaintiff a duty of care. The defendants also failed to establish, prima facie, that they did not breach their duty of care and that their alleged negligence was not a proximate cause of the accident. There was no artificial lighting on that side of the building, and the Plaintiff alleged that he did not see the window well prior to the incident. Even if the Defendants did not place a piece of a glass vase in the window well and did not have notice of the condition, the issue of whether the unguarded window well merely furnished the occasion for the accident should be submitted to a jury.
Since the Defendants failed to meet their initial burden as the movants, the burden never even shifted to the Plaintiff to raise a triable issue of fact and, therefore, the Defendants’ motion for summary judgment was properly denied.





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

Dear Readers, 

Hard to believe that it is already time to start planning for the summer.  The McCarthys will be taking at least one trip (a family vacation on Chautauqua Lake with my sister-in-law and her family) and otherwise will keep busy with swim lessons, soccer, and dance class. Already looking forward to it, especially after sitting through another snow event this week! 

This month we have two education related cases—the first is a personal injury action and the second is an alleged violation of the Americans with Disabilities Act.

03/29/23 Wilder v. City of Long Beach et al.
Supreme Court Appellate Division, Second Department 
Negligent supervision claim dismissed in case where first grader swallowed a bracelet at school. 

This negligent supervision case arose from an incident that occurred in 2016, when a first grade student swallowed a bracelet at school. Plaintiffs sued the District as well as the infant plaintiff’s first grade teacher and her teaching assistance. The defendants collectively moved for summary judgment, pointing to testimony that the infant plaintiff had never swallowed a non-food object before (although he had stolen small items from other students, hit his classmates, and was generally disruptive) and that there was, at all times, at least one adult in the classroom of 22 students. 

The Second Department held that the District defendants had established prima facie entitlement to summary judgment because they established that they adequately supervised the child and, because the incident occurred very quickly, that the alleged lack of supervision was not a proximate cause of the incident since no greater degree of supervision would have prevented it from occurring. 

03/21/23 Miguel Luna Perez v. Sturgis Public School District 
Supreme Court of the United States 
The U.S. Supreme Court reverses and remands ADA discrimination case that was previously dismissed on an argument that the Petitioner failed to exhaust the administrative procedures available under a different Act, the IDEA.

From the age of 9, until he was 20 years old, Petitioner was a deaf student in the Sturgis Public School District. When he turned 20, the District advised the Petitioner that he would not be allowed to graduate and the Petitioner and his family filed an administrative complaint with the Michigan Department of Education arguing that Sturgis failed to provide him with a free and appropriate education was required by the Individuals with Disabilities Act (IDEA). Petitioner generally alleged that the District did not provide him with qualified interpreters and otherwise misrepresented his academic progress.  The Department of Education complaint was ultimately settled, with the District providing forward-looking relief, which included additional school. The Petitioner then commenced a separate legal action in U.S. District Court seeking compensatory damages under the Americans with Disabilities Act (ADA).  The District moved to dismiss, arguing that Petitioner was precluded from bringing an ADA claim because a plaintiff seeking relief that is also available under the IDEA must first exhaust the IDEA’s administrative procedures.

The Court reversed and remanded the prior dismissal of Petitioner’s ADA claim, unanimously holding that (1) the IDEA’s administrative exhaustion requirement applies only to suits brought under another federal law that seeks relief also available under the IDEA (here, the IDEA would not have provided compensatory damages) and (2) that a student is not required to exhaustive administrative procedures under IDEA before seeking relief (compensatory damages) under the ADA. 




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

Hello Subscribers,
March Madness is one of my favorite times of the year, not just for college basketball, but also because of the vernal equinox. As the darkness of winter is left behind, and just before spring allows the light to take over, this is the moment to seize some stability, refocus, and look within to see what we need to bring into balance. So, take advantage of this equinox and seek to balance your own life!
This month, I report on two post-note of issue discovery cases. Remember that parties to an action have only twenty days from service of a note of issue to move to vacate it, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect. After the expiration of the twenty-day period, no such motion shall be allowed except for good cause. Good cause is established when the party seeking post-note of issue discovery demonstrates unusual or unanticipated circumstances and substantial prejudice (see NYCRR 202.21[e]). If you have a post-note of issue discovery story, particularly involve good cause (or what does not qualify as good cause), I’d like to hear about it, so please reach out and share your experiences.
Until next issue, stay safe and warm …

2/21/23 Partow v Van Owners Purchasing Bur,. Inc.
Appellate Division, First Department
Defendants waived additional IME of plaintiff due to their dilatory conduct and denied post-note of issue discovery because of inability to show unusual or unanticipated circumstances.
The trial court denied defendant's motion seeking post-note of issue discovery and to compel further medical examination by defendants’ expert. The First Department unanimously affirmed the trial court’s decision. A lack of diligence in seeking discovery does not constitute unusual or unanticipated circumstances warranting post-note of issue discovery.
Defendants did not explain why they failed to notice the IME within twenty-one days of the court’s prior order or why they failed to take any action prior to the pandemic. They also failed to explain why they did not act when plaintiff did not appear for the examination in July 2021 and instead waited until March 2022 to seek to compel her appearance.
Although defendants contend the attorney handling the case suffered a protracted illness and died in February 2022, after a more than three-year battle with cancer, plaintiff asserts that defendants’ law firm had more than sixty-five attorneys, a fact not denied by defendants. As the trial court noted, having failed to sustain their burden of demonstrating unusual or unanticipated circumstances, the court was not required to address the issue of substantial prejudice.
03/14/23 Taylor v Enterprise FM Trust
Appellate Division, First Department
Defendants failure to move to vacate note of issue until seven and a half months after it was filed was untimely and could not establish good cause or unusual or unanticipated circumstances justifying vacating the note of issue.
The trial court denied defendant’s motion to vacate the note of issue (“NOI”) and compel discovery. The First Department unanimously affirmed the trial court’s decision because defendants moved seven and a half months after the NOI was filed. It was therefore untimely and could not be vacated without a showing of good cause, which the Court held was absent here. Defendants failed to show unusual of unanticipated circumstances that would justify vacating the note of issue. The record also showed that defendants did not diligently seeking discovery. Therefore, the trial court properly denied the motion.




Pushing Buttons: The Ups & Downs of Vertical Transportation Law

By: Scott D. Kagan [email protected]
This column often begins with news stories of animals performing human-like activities.  From self-aware fish to bumble bees playing with toys, it’s humbling to know that animals are just as capable as humans.  This month I bring you dancing rats. A report in Science Advances noted that rats were observed bopping their head in time with music.  These rats were noted as responding to similar tempos as humans.  The researchers played Mozart’s “Sonata for Two Pianos in D Major” at normal speed, and various quicker and slower tempos.  The rats’ head bopping was more pronounced at usual tempo (132 BPM), similar to humans.  Once slowed to below 120 BPM or sped up over 140 BPM, the rats’ head bopping ceased, suggesting something fundamental about the rats’ response to rhythm.  Similar responses were noted when playing pop songs.  No rats were harmed in the study, but all rat participants wanted to remain anonyMOUSE.
This month’s sole case pertains to a couple of expert related Motions in Limine filed by both Plaintiffs and Defendants. 
I hope you enjoy the ride. 

3/2/2023  Nicholas Bortugno, et ano. v. Schindler Elevator Corporation, et ano
Supreme Court, New York County
Parties File Multiple Motions in Limine
Prior to Trial, Plaintiffs and Defendants filed various Motions in Limine. 

Plaintiffs moved to preclude the testimony of: (1) Robert Cargill, PhD (Biomechanical Engineer) as to the medical causation of Plaintiff Nicholas Bortugno’s (“Plaintiff”) injuries; (2) Jon B. Halpern (Elevator Expert) as to the “safe operation” of the elevator gate on the date of the incident, whether the installation of a chain-link fence forced Plaintiff to walk through the elevator to access the passageway behind it, and medical causation; and (3) Diego Herbstein, M.D. (Neurologist) as to his neurological examination of Plaintiff.  
Defendants, Schindler Elevator Corporation and Midland Elevator Co., Inc. (collectively, “Defendants”), moved to preclude the admission of evidence pertaining to “other elevators” in the building that were not involved in the incident. 
Plaintiffs’ Motions in Limine
(1) Plaintiffs’ motion seeking to preclude the testimony of Robert Cargill, PhD (Biomechanical Engineer) was denied.  Arguments regarding cumulative testimony, are properly determined at trial.  The Court was unpersuaded by the argument that Cargill was unqualified to testify as to whether the impact of the elevator gate caused a traumatic brain injury.  The Court held that Cargill’s lack of medical training does not render him unqualified to render an opinion as an expert that the force of the subject gate could not have caused the injuries allegedly sustained.  Vargas v. Sabri, 115 A.D.3d 505 (1st Dep’t 2014) (internal citations omitted).  The Court believed that Cargill’s “education, background, experience, and areas of specialty, render him able to testify as to the mechanics of injury.”  Id (internal citations omitted).  Finally, Plaintiffs’ challenge of Cargill’s qualifications goes to the “weight and not the admissibility of his testimony.”  Id.             
(2) Plaintiffs’ motion seeking to preclude the testimony of Jon B. Halpern (Elevator Expert) was granted in part (to the extent that Halpern was precluded from testifying about whether the addition of a chain-link fence was a cause of the incident).  The Court reasoned that it was already established as law of the case that the fencing was not a proximate cause of any injury alleged by Plaintiff.  The remainder of the motion was denied.  Regarding safe operation of the elevator gate, the Court denied Plaintiffs’ motion.  The fact that Halpern’s testimony may be contradicted, is not grounds for preclusion.  Discrepancies in testimony is for jury determination.  The Court also denied Plaintiffs’ motion seeking to preclude Halpern’s testimony regarding medical causation.  There was no indication that Halpern intended to testify about medical causation and Defense Counsel represented (in opposition) that Halpern’s testimony was limited to discussing the design of the door/gate, its functions, and its compliance with ANSI A 17.1. 
(3) Plaintiffs’ motion seeking to preclude the testimony of Diego Herbstein, M.D. (Neurologist),  as cumulative or duplicative was denied as premature.  Whether his testimony is cumulative is an issue to be determined at trial. 
Defendants’ Motions in Limine
(1) Defendants’ motion seeking to preclude Plaintiffs from introducing evidence pertaining to “other elevators” not involved in the incident was granted.  Evidence of “other elevators” has little, if any, probative value.  Each elevator has a different history, subject to different repairs, and different installed equipment.  Thus, testimony or documentary evidence regarding “other elevators” was irrelevant as to whether the subject elevator was properly maintained or repaired.  See Jones v. LeFranc Leading Ltd. Partnership, 81 A.D.3d 900, 903 (2d Dep’t 2011) (“Supreme Court properly denied that branch of their cross motion which was to compel the defendants to provide the repair and maintenance records of all the elevators in LeFrak City for two years preceding the accident…”).  Any minimal probative value that such evidence could have was outweighed by the risk of prejudice in confusing the jury about what repairs were performed on which elevator.  Denied.    




Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

Richelle R. Kloch
[email protected]


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