Premises Pointers - Volume VI, No. 11

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:

Exciting news at Hurwitz Fine as this week, we announce the promotion of several of our attorneys, including Premises Pointers columnist Scott Kagan, Lee Siegel, Mike Williams and Jesse Siegel! Lee has been named a Shareholder and Scott, Jesse and Mike have been promoted to Member. Each of these individuals has exceled as an attorney and in the practice of law. They are committed to their clients, handle highly complex matters, and are always ready and willing to assist our teams. Outside of their legal work, each of these individuals are actively involved in legal and community organizations, and regularly author articles and speak at events.

This month, I’d also like to highlight several of our litigation attorneys who were featured in The Harmonie Group’s annual significant cases publication for their victories:

• Construction Site Injury
  (David R. Adams)
  Plaintiff Demands $6MM In Construction Accident
  • RESULT: Complete Defense Verdict for Contractors in a Three-Week Unified Jury Trial
• Medical Malpractice/Nursing Home Negligence
  (Elizabeth M. Midgley, Elizabeth A. Adymy, Todd C. Bushway)
  Plaintiffs Want to Reach Back on Elimination of Immunity Statute
  • RESULT: Repeal of COVID-19 Immunity Statute Not to be Applied Retroactively
• School Bus Accident/Non-Economic Damages
  (Anastasia M. McCarthy and Brian M. Webb)
  Plaintiff Wishes to Recover Noneconomic Damages
  • RESULT: Court Reverses Trial Court and Grants Dismissal to Defendants.

I’d also to welcome our newest litigation attorney, Scott J. Whitbeck. Scott brings more than 20 years of experience in premises and products liability, with substantial courtroom experience. He is a great addition to our litigation team, who continues to grow to more than 45 attorneys across New York State and Connecticut. 

As always, please free to reach out with questions, comments or to share your own litigation war stories! I would love to hear from you.

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.

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]

4/5/23                  Carey v. Walt Whitman Mall, LLC, et al.,
New York Appellate Division, Second Department
Restaurant owner, lessor and mall all kept in following denial of summary judgment motions based on their failure to prove no notice and out of possession landlord status.
 
Plaintiff brought a personal injury action against an operator of a restaurant, the department store which leased the specific premises to the restaurant, and the mall where the store was located, seeking to recover damages for injuries allegedly sustained from a slip and fall in the restaurant. The restaurant operator moved for summary judgment, while the restaurant and mall defendants cross-moved for summary judgment.
 
As proof that no dangerous condition existed, the restaurant relied on a witness’s deposition testimony that the floor on which the plaintiff fell was dry. However, the plaintiff testified that the floor was wet at the time of her accident. The court found that the restaurant, therefore, failed to eliminate triable issues of fact as to whether a dangerous condition existed on the premises. The court further stated that even if a surveillance video depicting the incident was properly authenticated, the video did not demonstrate, prima facie, that no dangerous condition existed on the premises.
 
The restaurant next argued that they had no constructive notice of the alleged dangerous condition. In support of such argument, the operator relied on witness testimony that the accident occurred five minutes after the witness entered the restaurant and observed the floor to be dry. However, the Plaintiff disagreed with this assertion and testified that the accident occurred at least one hour later. The restaurant did not submit any other evidence as to when it last inspected the area prior to the time when the plaintiff asserted the accident occurred.
 
The store and mall defendants argued that they were out-of-possession landlords, however, both of the defendants failed to establish this since they completely failed to submit any lease agreements. The contract that was submitted, the food services agreement, failed to establish that they had no responsibility to maintain the area in question.
 
Therefore, the Appellate Division found that the Supreme Court should have denied the restaurant’s summary judgment motion, but properly denied the restaurant and mall defendants’ cross-motion for summary judgment.
 
 
3/13/23               Demelio v. Wal-Mart Stores East, LP
United States District Court, S.D. New York
Different court – different result. District Court granted the Defendant’s summary judgment motion because Plaintiff did not prove that Defendant had constructive notice of the spill.
 
Plaintiff brought an action against Wal-Mart seeking to recover for personal injuries she allegedly suffered when she slipped and fell in Defendant’s store. The Defendant moved for summary judgment.
 
Plaintiff walked approximately ten to fifteen feet down the store’s hair products aisle before she fell on a slippery substance that, based on its sweet smell and consistency, she believed to be baby oil. Prior to her fall, Plaintiff admitted that she did not see the substance that was on the floor, since she explained that the floor just looked clean and shiny. After her fall, when she was “eye level” with the spill, she observed foot marks, some dirt where people walked, and streaks through the clear substance. According to Plaintiff, this spill was between ten and fourteen feet long and stretched three quarters of the way across the aisle. Video surveillance footage shows that at least one Wal-Mart employee was in the vicinity of the aisle where Plaintiff fell—at the opposite end from where Plaintiff entered the aisle— 40 seconds before Plaintiff fell, and there was substantial foot traffic in the general area of the incident, including in the hair products aisle and the aisle immediately adjacent to the hair products aisle where Plaintiff fell, in the minutes before the accident.
 
The only issue in dispute before the court was whether Defendant had constructive notice of the spill. The Defendant argued that the evidence in the record demonstrated that the spill was neither visible nor apparent prior to Plaintiff’s fall, in which the court agreed. There is no dispute that Plaintiff herself did not see the slippery substance until she was on the ground, and Plaintiff could not point to anyone else who did. Plaintiff tried to argue that she was able see the substance after she had fallen to the floor. However, the court responded that the legally meaningful time to notice a defective condition is before an accident, not after. The Defendant further argued, and the court agreed, that the photographs only showed, at best, a shiny substance on a shiny floor, and the store surveillance videos show that the floors of the Wal-Mart were generally shiny. In fact, the Plaintiff testified that before the fall, she thought that “it looks like it’s a clean, shiny floor.” Additionally, the Wal-Mart employee at the opposite end of the aisle where the accident occurred, in the minutes leading up to her fall, did not react to the spill.
 
Plaintiff argued that the condition existed for a sufficient length of time to provide constructive notice to Wal-Mart since the substance was spilled long enough for others to walk through it, as evidenced by the “dirty” footprints and “trail marks of carts.” The court found that this evidence was unhelpful as an indicator of timing since the video evidence shows that immediately prior to Plaintiff’s fall and in the minutes that followed, there were customers walking through the hair products aisle, including at least one customer with a shopping cart. Plaintiff next tried to argue that the “size of the spill” proved that the condition lasted for a sufficient time, The court responded that this also says nothing about the length of time that it was on the ground. The size of a puddle evidences the amount of fluid spilled, but provides no information concerning the duration of the puddle’s existence. Plaintiff’s last argument that a reasonable jury could infer constructive notice from the fact that a Wal-Mart employee can be seen in the vicinity of the incident for two minutes prior to Plaintiff’s fall also was unpersuasive and did not establish how long the alleged dangerous condition existed.
 
Therefore, the District Court granted the Defendant’s summary judgment motion since Plaintiff did not prove that Defendant had constructive notice of the spill.

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

Dear Readers,
 
This month’s case is a nice reminder that attacking the very basic building blocks of a lawsuit (like standing) gives the Court an early and compelling reason to dismiss it.  It’s also just amusing.
 
Happy reading.
 
Anastasia
 
04/26/23          Greco v. TikTok, Inc.
U.S. District Court, Northern District of New York
Where the Court finds a municipal tax payer and parent of a child in public school did not have standing to sue TikTok, on behalf of a variety of public school districts, for damage and disruption caused by TikTok challenges on school grounds.

Plaintiff (a tax payer and the parent of a student residing in Solvay, New York) initiated a putative class action against TikTok (a California corporation) on behalf of school districts in New York, Pennsylvania, Idaho, New Mexico, Utah, North Carolina, and Connecticut against TikTok alleging that TikTok challenges are disruptive and harmful in the school setting constituting a public nuisance.  It was further alleged that TikTok challenges are so harmful as to “unreasonably interfere with the rights of School Districts to provide an environment conducive to education” and has forced such districts to “devote and divert resources” to remedy destruction of property and violence. Relief sought by the plaintiff included restitution and a judgment directing TikTok to “cease contributing to, and immediately abate the nuisance it has created and maintained within the proposed school districts” and monetary damages.  TikTok filed a pre-Answer motion to dismiss arguing that the Court lacked subject matter jurisdiction, personal jurisdiction, and failure to state a claim (as well as to strike the class allegations). 

Plaintiff’s Complaint generally alleged that TikTok challenges, which are promoted to school-aged children using a proprietary algorithm, are activities based on violence, theft, and the destruction of property.  Specifically, Plaintiff alleged that challenges “have encouraged students to steal and vandalize facilities…present their middle finger to authority figures…physically slap teachers and post videos of it…and promote sexual assault on school grounds.” She further alleged that TikTok nefariously “delivers” challenges to students in order to “exploit students’ developing prefrontal cortex by appealing to their desires for acceptance and importance amongst their peers” and “has developed features to limit parents from monitoring and preventing underage use.”  It was further the Plaintiff’s contention that school districts have been forced to bear increased costs in order to replace stolen and damaged equipment, to hire and assign personnel to monitor TikTok, to train employees to “better recognize the signs of a coordinated Challenge or other disruption.”

On motion, the lawsuit largely failed on the issue of standing.  To establish standing to bring a claim, a Plaintiff must establish (1) an injury in fact that is concrete and particularized and actual or imminent—it cannot be conjectural or hypothetical; (2) a causal connection between the injury and the conduct complaint of and (3) redressability of the injury by a favorable decision. Facts supporting each of these elements must be sufficiently pled in the Plaintiff’s Complaint.

A concrete injury is one that actually exists—it is real and not abstract. Moreover, to be “particularized” it must actually affect the Plaintiff personally.  Future harm may also be sufficient if the threatened injury is certainly impending or there is a substantial risk that the harm will occur.  Where class actions are concerned, the injuries of the named plaintiffs are considered—not those of unnamed class members.

In the matter at hand, Plaintiff alleged that her standing to sue TikTok constituted municipal taxpayer standing and third-party standing. The Court immediately disagreed with Plaintiff’s arguments that she had standing to sue based on her municipal taxpayer status, clarifying that municipal taxpayer standing does not allow for lawsuits against private corporation. The Court further declined to exercise jurisdiction citing to a lack of third-party standing because the Plaintiff failed to allege any measurable costs that her district, or its taxpayers, have incurred due to the Defendant; that a tax increase was imminent; nor that there was a substantial risk of a tax increase. Instead, the Court determined that the Plaintiff’s allegations of an “anticipated tax increase” was merely conjectural. The Court also considered that the Complaint failed to allege a close relationship to any school district (Plaintiff did not even clearly identify which school district her child actually attended or which district she pays taxes to) as well as a lack of facts suggesting “any hinderance to any third-party school district’s ability to protect its own interests.”

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

Hello Subscribers,
 
For those of you who read my cover note last month, I hope you found balance with the good weather. This is a light month for discovery cases, but I found one involving post-note of issue discovery, and another involving frivolous conduct and sanctions. Pursuant to 22 NYCRR 130-1.1(a), “[t]he court, in its discretion, may award … costs … resulting from frivolous conduct.” 22 NYCRR 130-1.1(c) defines conduct as “frivolous” where “it is completely without merit in law” or “is undertaken primarily to delay or prolong the resolution of the litigation.” Compliance with court orders is essential to the integrity of our judicial system and litigants like plaintiff in Continental Indus. Group, Inc. must not be allowed to ignore court orders with impunity! Please share any stories involving frivolous conduct you are comfortable sharing, as I’d like to hear about them, so just reach out.
 
Until next issue, stay safe …
 
Marc
 
 
04/06/23             Continental Indus. Group, Inc. v Ustuntas
Appellate Division, First Department
Plaintiff sanctioned $10,000 plus attorneys’ fees and costs for engaging in frivolous conduct by lying to opposing counsel and the Court about discovery and refusing to produce relevant documents in its possession.
 
On a prior appeal, the First Department affirmed the trial court’s decision to grant defendants’ motion for discovery sanctions against plaintiff in the amount of $10,000 to be payable to the Lawyers’ Fund and awarded defendants $25,895.10 in attorneys’ fees and costs.
 
Plaintiff, among other things, repeatedly represented to defendants and the court that it could not produce the requested discovery because its server had died and been discarded, although the server was in its possession the entire time, and subsequently refused to make it available for inspection, despite the court’s directive that it do so. The Court therefore affirmed the trial court’s decision to order the $10,000 sanction against plaintiff for frivolous conduct. However, since plaintiff was not an attorney, the Court reversed the trial court’s order by deleting the provision directing the $10,000 sanction to be deposited into the Lawyers’ Fund.
 
 
04/19/23          Gugauri v One Hudson Yards Owners, LLC
Appellate Division, Second Department
Defendants entitled to vacating of plaintiff’s note of issue since material discovery was outstanding at the time it was filed and the outstanding authorizations sought had previously been the subject of a discovery demand.
 
The trial court denied defendant’s motion, pursuant to 22 NYCRR 202.21(e), to vacate the note of issue (“NOI”) and certificate of readiness, and, pursuant to CPLR 3124, to compel plaintiff to produce certain medical authorizations along with a deposition of third-party defendant, or to stay all proceedings and to extend the time to move for summary judgment.

The Second Department reversed the trial court because defendants demonstrated that material discovery was outstanding at the time plaintiff filed the NOI. Moreover, the Court held that the trial court should have granted that portion of defendants’ motion to compel plaintiff to produce the medical authorizations to the extent of compelling the production of authorizations which were the subject of a demand previously served by defendants.

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

There is working theory (albeit not regularly accepted – think flat earth) that octopuses may have originated from another planet.  While probably not true, it adds to an eerie mythos surrounding these complex animals.  These eight (8) limbed cephalopods are known for being intelligent and predatory.  Prior research shows that octopuses can store memories and distinguish shapes and patterns.  It turns out octopuses (along with squid and cuttlefish) may distinguish and prefer different tastes as well.  A report in Nature revealed that octopuses’ predatory habits may be based on varying tastes.  Proteins on the suckers of their tentacles permit them to “taste” objects by touching them.  Different octopuses may prefer certain “tastes” to others.  I hope people don’t “taste” good.  As if octopuses and squid aren’t creepy enough.
 
Two cases this month.  Each case revealing the opposite end of the notice requirement.  In the first, inspection and maintenance records revealed that defendant had no prior problems with the elevator.  Whereas, in the second case, defendants were openly aware of two prior similar incidents.  Defendants moved for summary judgment in both.  Let’s see the results. 
 
I hope you enjoy the ride. 
 
Scott


3/29/2023    Shequita Jackson. v. Schindler Elevator Corp., et al.
Supreme Court, Kings County
Maintenance provider’s submitted inspection/ maintenance records warranted summary judgment.
 
Plaintiff alleged that Defendant, Schindler Elevator Corp. (“Schindler”), failed to supervise, operate, inspect, maintain and/or repair an elevator (the “Elevator”) resulting in its door closing on Plaintiff’s left side, which resulted in injuries (the “Incident”).  Schindler moved for summary judgment pursuant to CPLR § 3212 (the “Motion”).  The Motion claimed summary judgment was warranted because Plaintiff previously utilized the Elevator without problem.  Moreover, there was no evidence that Plaintiff (or anyone else) ever reported a prior incident to Schindler.  Schindler provided proof of inspection and regular service of the Elevator pre-Incident.  Last, Plaintiff failed to report the Incident to Schindler timely, and no request to perform repairs of the alleged defect was ever conveyed.
 
As with any premise matter, an elevator company that agrees to maintain an elevator in safe operating condition may be liable for failure to correct defects of which it has knowledge or for failure to use reasonable care to discovery and correct a defective condition which it ought to have found.  Here, Schindler was required to submit evidence that it lacked actual or constructive notice of the alleged defect and that it did not fail to use reasonable care to correct the alleged condition.  Schindler submitted evidence that it regularly inspected and serviced the Elevator pre-Incident, the alleged defect was never reported to Schindler pre-Incident, the Elevator continued in use immediately post-Incident (without further incident), the Elevator was not removed from service post-Incident, the Incident was not immediately reported to Schindler, and no repairs were required for the alleged defect.  The Court held that this evidence established that Schindler did not create the alleged defect, nor did it have notice of the alleged defect.  See e.g., Lanzillo v. 4 World Trade Ctr.¸195 A.D.3d 907, 908 (2d Dep’t 2021) (no liability for elevator maintenance that submitted evidence that it lacked actual or constructive notice of a defective condition that would have caused the doors to close on a person, no evidence of any such prior malfunction, and no evidence that it failed to use reasonable care to correct the condition).
 
The Court further noted that Plaintiff’s reliance on Cox v. Pepe-Fareri One, 47 A.D.3d 749 (2d Dep’t 2008) was misplaced.  While Plaintiff’s allegations in Cox were similar, the evidence submitted by Defendant in Cox, failed to establish that the elevator maintenance provider maintained the elevator in a safe operating condition or that it did not have notice of a defective condition.  See also Sanchez c. City of New York, 211 A.D.3d 1065 (2d Dep’t 2022) (Elevator maintenance provider denied summary judgment where maintenance records were “vague and unspecific”);  Nye v. Putnam Nursing & Rehab. Ctr., 62 A.D.3d 767, 768 (2d Dep’t 2009) (Elevator maintenance provider denied summary judgment due to a lack of evidence regarding creation of the condition or notice of the condition due to employee’s conflicted errata sheet and deposition testimony, creating issue of fact).
 
The Court held that the factors accumulated sufficient to warrant summary judgment when combined with Schindler’s production of evidence showing lack of notice, and its performance of regular inspections and maintenance.  Last, the Court noted that Schindler’s motion pre-emptively raised res ipsa loquitur to preclude Plaintiff’s argument.  The Court held that Plaintiff failed to show that the instrumentality that controls the Elevator door closure was within Schindler’s exclusive control.
 
Motion Granted.
 

3/30/2023 Judith Pirouz. v. 1515 Broadway Owner LLC., et ano.
Supreme Court, New York County
Notice of prior similar incidents precluded summary judgment.
 
Plaintiff alleged sustaining injuries on June 12, 2016, at the Minskoff Theater (the “Premises”), while exiting Elevator No. 38 (the “Elevator”) due to an alleged mis-level (the “Incident”).  1515 Broadway Owner LLC (“Owner”) owned the Premises at the time of the Incident.  Transel Elevator & Electronic Inc. (“TEI”) was hired to maintain and repair the Elevator pursuant to a full-service maintenance agreement with Owner.  Defendants moved for summary judgment. 
 
Plaintiff was an employee at the Premises for over a decade at the time of the Incident.  After her shift, Plaintiff entered the Elevator on the mezzanine level intending to exit to the lobby.  There were no other passengers in the Elevator.  Plaintiff alleged that while approaching the lobby, the Elevator suddenly moved up and down.  The Elevator doors opened, Plaintiff stepped out and fell.  After the Incident, Plaintiff noticed the Elevator floor was approximately 18-20 inches above the lobby floor.  The Incident was immediately reported.
 
At around the time of the Incident, TEI had employees onsite five (5) days per week.  A TEI employee (“Employee”) performed weekly maintenance on the Elevator, which included: visual inspections, cleaning, watching the operation of the Elevator to ensure proper performance, and adjusting equipment, if necessary.  Maintenance was performed on Mondays (after hours).  Employee was notified of the Incident but did not take the Elevator out of service because he was not advised of an injury.  The following Monday, the inspection revealed that the Elevator was in good working order.  During litigation, Employee testified: (1) that the relays on the controller are the mechanisms that permit the Elevator to land flush with the ground or the floor when it arrives; (2) the Elevator could mis-level or land out-of-alignment with the floor if there were contact failures, a failed or a broken part, relay, or switch; (3) the Elevator is open to the environment meaning it is not a sealed contact so a contact failure could cause the Elevator to not level properly; (4) if the Elevator is not in alignment upon landing (and is at least 18 to 20 inches from the ground), the doors would not open, as even if the doors could possibly open, the hall door would never open because it's too far away from the mechanical mechanism to open the door; (5) the Elevator floor could not be more than three inches from the ground in either direction or the doors would not open; and (6) the last inspection of the Elevator occurred on June 6, 2016, at which time there were no issues with the Elevator.
 
Category 1 and Category 5 testing and inspections were performed on the Elevator on March 28, 2016.  It passed the Category 5 inspection without any deficiencies, but the Category 1 testing noted some deficiencies with the Elevator; however, none of the deficiencies were related to a leveling issue. Defendants submitted an expert affidavit stating that no failure to maintain the Elevator caused or contributed to the mis-leveling and that there was not any prior notice of a leveling issue.  However, evidence was submitted of two prior complaints regarding mis-leveling of the Elevator in January 2016. 
 
The Court held that Defendants failed to meet their prima facie burden.  The Court acknowledged that TEI had notice of two prior mis-leveling complaints in the months prior to the Incident and that TEI was responsible for all inspections and maintenance.  When there are prior mis-level complaints, paired with a defendant’s undertaking to perform all inspections and maintenance, the evidence is sufficient for a jury to infer negligence.  Burgess v. Otis Elevator Co., 114 A.D.2d 784, 785 (1st Dep’t 1985). 
 
In Dzidowska v. Related Companies, LP, 157 A.D.3d 447, 447-48, (1st Dept. 2018), the Court found that defendants had notice of a recurring mis-leveling problem with the elevator based on prior similar incidents shown in the building's logbook and service records.  Here, Defendants submitted knowledge of two prior similar mis-level events; however, argue that these prior complaints are not probative since TEI performed service in response to the prior complaints.  This argument is unavailing as the Dzidowska Court found that “servicing of the elevator in response to those prior complaints raises an issue of fact as to notice." Id.  The Court found that negligence in the maintenance of the Elevator may be inferred from evidence of prior malfunctions.  See Dykes v. Starrett City, Inc., 74 A.D.3d 1015, 1016 (1st Dep’t 2010).
 
Motion Denied.   

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

Richelle R. Kloch
[email protected]

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