Premises Pointers - Volume VI, No. 12

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:

Today, our second group of Hurwitz Fine volunteers is participating at Habitat for Humanity in Buffalo, working on building homes for our community, sponsored by our Diversity Committee. Our first group, including Labor Law Attorney Dave Adams, Insurance Coverage Attorney Steve Peiper and Commercial Litigation Attorney Amber Storr, had a great time siding, framing, painting and installing hardware on modular homes while also advising on the NYS Labor Law (in true lawyer form). We are thrilled to be part of such a great cause in our city!
 

 
We are also excited to continue our focus on DEI. On Thursday, June 1, I will be participating as a panelist in the Buffalo Niagara Partnership’s 2023 Diversity, Equity and Inclusion Symposium. I am excited to be discussing “DEI Successes and Challenges at Work,” and hope to share insight with attendees on Hurwitz Fine’s own initiatives and what has and hasn’t worked for us.
 
Lastly, we hope that you all received our special legal alert on the “Resurrection of the Grieving Families Act.” The Grieving Families Act would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality. Our attorneys provide insight on the latest iteration of the bill and what it could potentially mean.
 

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] 


5/5/23   Brown v. Wal-Mart Stores, Inc.
Appellate Division, Fourth Department
Off duty police officer who was injured while voluntarily responding to a theft while at Walmart was owed no duty by Walmart resulting in the dismissal of his lawsuit.
 
Plaintiff, an off-duty police officer, sued Walmart and others, to recover for personal injuries he allegedly sustained when he was struck by a vehicle operated by a police officer who had been called to Walmart to respond to a suspected shop lifting incident. The plaintiff responded to the scene, along with other police officers who were on duty. The suspect fled during questioning. He was chased in the parking lot. During the chase, the plaintiff was struck by a police car. Plaintiff alleged that Walmart negligently trained its Asset Protection Associates (APA) in the proper methods of dealing with those unlawfully taking merchandise and thus was vicariously liable for the negligent actions of the APA, which included the APA's alleged failure to follow internal protocols by calling the policy and not just letting the suspect go. Walmart moved for summary judgment and argued that it owed no duty to the plaintiff. The motion was denied at the trial court level, but reversed on appeal with court finding that Walmart owed no duty to the plaintiff and that the alleged violation of Walmart’s internal policy did not create a duty to the plaintiff since it was not designed to protect the plaintiff and the plaintiff did not rely on it.
 
 
4/26/23   Kuyenova v. R&M Supermarket
Appellate Division, Second Department
Supermarket defendants successfully obtained extension to file summary judgment motion and then prevailed on summary judgment by demonstrating it did not have actual or constructive notice of the shopping baseket the plaintiff slipped and fell on.
 
Plaintiff allegedly was injured when she tripped and fell on a shopping basket inside the defendants’ supermarket. Before addressing the substantive basis of defendants’ motion, the Court ruled that the Supreme Court property exercised its discretion by granting that branch of the defendants’ motion which was for leave to extend their time to move for summary judgment. By way of background, the plaintiff filed a note of issue dated March 10, 2019. On May 16, 2019, the parties entered a so-ordered stipulation, inter alia, that extended the defendants’ time to file a motion for summary judgment to December 31, 2019. On June 2, 2020, the defendants moved for leave to extend their time to move for summary judgment and plaintiff cross-moved to strike defendants’ answer.  Defendants established that their delay in moving for summary judgment was attributable to significant outstanding discovery essential to the motion, including the plaintiff's continued deposition.  The Court then ruled on the merits finding that the defendants established that they did not create the alleged hazardous condition or have actual or constructive notice of its existence. 

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


Dear Reader,

A short month for decisions of interest to this column.  Nevertheless, a helpful discussion about notice of claim and statute of limitations in municipal law cases was released by the Second Department a few days ago.  This is especially helpful for individually named municipal employees.

Anastasia

5/17/23  Parpounas v. Ohagen, Three Village School District
Appellate Division, Second Department
A municipal employee, including the employee of a school district, is owed service of a Notice of Claim if it is alleged that the conduct at-issue occurred “during the discharge of the employee’s duties within the scope of his or her employment.”

This personal injury case was alleged to arise from a 2018 motor vehicle accident involving a school district owned and operated vehicle. The Defendants, moved to dismiss the Complaint, arguing that the plaintiff failed to serve a notice of claim before the commencement of suit, and, that the suit was otherwise untimely and outside the relevant statute of limitations. The lawsuit was commenced in 2021.

On motion, the trial court granted Defendants’ motion, holding that the plaintiff failed to comply with a condition precedent to serve a Notice of Claim on the District, as required by the General Municipal Law, and, separately, on the basis that the statute of limitations had also expired. 

Under the General Municipal Law, a claimant intending to sue a municipal entity, such as a school district, must serve a notice of claim within 90 days of the alleged injury.  Failure to comply with this requirement of the law is a ground to dismiss a later-filed Complaint for failure to state a cause of action. Claimant must also serve a notice of claim on a District employee if the employee’s allegedly illegal or tortious conduct occurred “during the discharge of the employee’s duties within the scope of his or her employment.”  The Appellate Division determined that Plaintiff had run afoul of the Notice of Claim requirements with respect to the District and the District’s employee and that the trial court had properly dismiss the Complaint on that basis.
The Appellate also determined that the trial court properly held that the plaintiff’s causes of action were also time barred.  “Any tort action against a school district must be commenced within one year and ninety days after the happening of the event upon which the claim is based.”

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


Hello Subscribers,
 
Surveillance is this month’s topic and let’s go! Authentic, nonmanipulated and admissible surveillance adds an important truth-finding element to litigation, and the determination of truthful claims or defenses is the ultimate and singularly important responsibility of triers of fact. Once a party knows that surveillance is underway, that party may act differently, hide abilities, or exaggerate movements and physical limitations for the sake of the hidden camera that may be there. Before discussing the current state of the law on surveillance and disclosure obligations, let us take a step back and revisit the rationale behind the old surveillance rules to help you understand why they changed.
 
Litigators in courts before 1992 remember the time when there was no requirement for surveillance material to be disclosed at all before trial. Videotaped evidence occasionally had the effect of a proverbial hand grenade at trial, surprising unsuspecting plaintiff’s, and plaintiff’s counsel alike, where the depictions contradicted plaintiff’s prior oath-given testimony. But courts in New York do not favor trial by ambush. In DiMechel v South Buffalo Ry. Co., 80 NY2d 184 (1992), the Court of Appeals held that surveillance material was discoverable by plaintiff under CPLR 3101(d)(2), which allowed for the disclosure of material prepared in anticipation of litigation when there is a showing of substantial need and that the party seeking disclosure is unable without undue hardship to obtain the subsequent equivalent of the materials by other means (id. at 197). However, in balancing the rights and interests of the parties, the Court also held that the disclosure of surveillance videos is not required until after plaintiff had been deposed and only to the extent that the party in its possession intends to use it at trial.
 
In 1993, the Legislature amended CPLR 3101 with subdivision (i), requiring the “full disclosure” of “any films, photographs, video tapes or audio tapes, including transcript or memoranda thereof.” The 1993 CPLR 3101(i) amendment also required the disclosure of “out-takes, rather than only those portions a party intends to use.”
 
In 2003, the Court of Appeals addressed the issue of CPLR 3101(i)’s timing in Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383 (2003) by eliminating the qualified privilege that discoverability of the materials requires a showing of substantial need and to avoid undue hardship to a party. Thus, the Court of Appeals held in Tai Tran that plaintiffs could demand and receive covered materials prior to their depositions, and in so doing, overruled that portion of DiMichel which had held to the contrary. Accordingly, surveillance material was put on the same footing as other material generally discoverable under CPLR 3101(a), which likewise contains language requiring the “full disclosure” of all material and relevant to the prosecution or defense of an action, which remains the current rule.
 
If you have any war stories involving cases with the old, revised, or current state of a party’s disclosure obligations regarding surveillance material, please reach out and share. Until next issue, stay safe …
 
Marc
 
 
4/26/23   Jurlina v Town of Brookshaven
Appellate Division, Second Department
Defendant not entitled to dismissal of complaint for plaintiff’s failure to comply with so-ordered stipulation requiring appearance at IME on a date certain, but plaintiff’s counsel sanctioned.
 
Plaintiff allegedly tripped and fell on an uneven sidewalk. After depositions, plaintiff failed to appear for an IME. Plaintiff appeared for the rescheduled IME, but the IME doctor could not conduct the examine because plaintiff received a back injection earlier that same day from his physician. Plaintiff failed to appear for next IME, which resulted in the parties executing a so-ordered stipulation required plaintiff to appear for the IME by a date certain and further stated “[i]f [plaintiff] fails to appear, [defendant] to make a motion to dismiss.”
 
The trial court granted defendant’s motion, pursuant to CPLR 3126, to dismiss plaintiff’s complaint for failing to appear for the IME and denied plaintiff’s motion for leave to reargue his opposition to defendant’s motion. The Second Department held that dismissal was too drastic a remedy and modified the trial court’s decision by directing plaintiff to appear for an IME within 30 days of service of the decision and directing plaintiff’s counsel to personally pay the sum of $2,500 as a sanction to defendant but otherwise denying defendant’s motion.
 
 
04/27/23   Domingo v 541 Operating Corp.
Appellate Division, First Department
Defendants’ motion to disqualify plaintiff’s counsel reversed and denied as defendants failed to establish that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the IME doctor and plaintiff at trial.
 
Tenant brought action against landlord and exterminator for injuries allegedly resulting from bedbug infestation in tenant’s apartment and from exposure to chemicals used to treat the infestation. The trial court granted defendants’ motion to disqualify plaintiff’s attorney as counsel, finding that plaintiff’s counsel’s attendance and alleged interference at plaintiff’s IME warranted disqualification because she could not act as both witness and advocate.
 
The First Department unanimously reversed the trial court’s decision. Disqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests”. Plaintiff was entitled to have her counsel present at the IME, provided counsel did not prevent defendants’ doctor from conducting “a meaningful examination,” in part to deter the examining doctor “from inquiring about matters beyond the scope of the particular action.”
 
The Court held that defendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself. As there is no basis for defendants to call counsel as a witness in these circumstances, the Court found that rule 3.7(b)(1) of the Rules of Professional Conduct is not implicated, and counsel’s firm should not have been disqualified.
 
The Court also rejected defendants argument that counsel’s interference at the IME warranted disqualification because the examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants failed to demonstrate prejudice by the contents of the report based on counsel’s alleged intrusions. To the extent that further information is required to prepare a defense, the Court held that remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information.
 
 
05/10/23   Pizzo v Lustig
Appellate Division, Second Department
Plaintiff not entitled to preclusion of defendant’s post-deposition surveillance material.
 
After joinder of issue, plaintiff served a notice of discovery and inspection demanding defendant provide various items, including “[a]ny and all photographs, motion pictures and/or video tapes taken of plaintiff(s) in the possession of defendant(s), their agents, servants and/or employees, at any time since the date of this incident.” At the preliminary conference, the trial court issued an order requiring all parties to, among other things, exchange surveillance tapes within 30 days and assigned a standard discovery track.
 
Defendant’s carrier retained a third-party vendor to conduct surveillance of plaintiff and obtained nine seconds of footage of plaintiff pre-depositions. Defendant did not disclose that surveillance before conducting plaintiff’s deposition over two days. After the second day of depositions concluded, defendant’s carrier obtained additional surveillance. Defendant thereafter obtained further favorable surveillance.
 
In response to plaintiff’s motion for summary judgment, defendant disclosed all surveillance material and then used the favorable material to oppose the motion. Plaintiff then cross-moved to preclude defendant’s use of the surveillance material. As relevant here, the trial court denied plaintiff’s motion, pursuant to CPLR 3101(i) and 3126, to preclude defendant from offering certain surveillance materials in opposition to a motion by plaintiff for summary judgment.
 
The Second Department addressed the difference between pre-deposition and post-deposition disclosure requirements for surveillance materials under CPLR 3101(i), and the factors that are to be considered by courts under CPLR 3126 in determining whether to preclude such materials disclosed beyond conference order deadlines.
 
Defendant agreed with the Second Department at oral argument on appeal that it should have been precluded from using the surveillance material obtained pre-deposition because of defendant’s noncompliance with plaintiff’s discovery demand and two court orders. As a result, the Court determined defendant’s conduct pre-deposition was willful and strategic. With respect to post-deposition surveillance, however, the Court affirmed the trial court’s decision for several reasons, including deference to the trial court’s determination, lack of prejudice to plaintiff, defendant’s disclosure fully satisfied the disclosure requirements of CPLR 3101(i), and the disclosure occurred prior to the filing of any note of issue and certificate of readiness, at a time when discovery was still ongoing.

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


Scuticociliatia is a subclass of ciliates.  These unicellular eukaryotes are microorganisms and are vastly found in the world’s oceans.  They are also parasites – hosting on other marine organisms.  Reported in Science Advances, it was discovered that these microorganisms are behind the mass slaughter of long-spined sea urchins in the Caribbean Sea.  While it is unknown what conditions permit Scuticociliates to become damaging to these sea urchins, it is confirmed that they are the cause.  The sea urchins are vital parts of the Caribbean ecosystem.  They consume algae that smothers coral.  Thus, the loss of sea urchins at such an alarming rate, could also cause a massive increase in coral deaths in the Caribbean. 
 
A light month for vertical transportation cases; however, this month brings us a rare Third Department matter that ruled on four (4) separate summary judgment motions.  This should be a bumpy ride.
 
I hope you enjoy the ride. 
 
Scott

5/11/2023   Christian Lloyd. v. 797 Broadway Group, LLC, et al. 
Appellate Division, Third Department
Defendants did not launch a force or instrument of harm. 
 
Defendant, BCI Construction, Inc. (“BCI”), entered into a contract to remodel a building owned by Defendant, 797 Broadway Group, LLC (“Broadway”), located in the City of Schenectady (the “Building”).  BCI subcontracted with Defendant, Bay State Elevator Company (“Bay State”), for the installation of a new elevator (the “Elevator”) and with Defendant, Flooring Environment, Inc. (“Flooring”), to provide flooring.  After completion, the Building was leased to Schenectady County.    

Plaintiff (county employee) was entering the Elevator on the first floor when she tripped over a metal threshold plate (the “Plate”) and fell (the “Incident”).  The Plate, which was glued in place, became loose.  After the Incident, the Plate was secured to the floor with bolts (an obvious subsequent remedial measure).   
 
Plaintiff commenced two separate lawsuits against: (1) Broadway and BCI; and (2) Bay State and Flooring. The actions were consolidated.  After consolidation, each Defendant moved for summary judgment.   
 
The Supreme Court ruled on each motion as follows:

1. Broadway: Broadway failed to make a prima facie showing that it lacked constructive notice of the alleged dangerous Plate.  Motion denied.
2. Bay State: Questions of fact existed as to who installed the Plate. Motion denied.
3. Flooring: Questions of fact existed as to who installed the Plate.  Motion denied.
4. BCI: There were no factual issues concerning its involvement in the installation of the Plate.  Motion granted.    

On appeal, the Third Department ruled:

1. Broadway: Affirmed.  While an out-of-possession landlord generally is not responsible for dangerous conditions existing upon leased premises, an exception to this rule exists when the landlord has assumed a duty to perform maintenance and repairs.  See Taliana v. Hines REIT Three Huntington Quadrangle, LLC, 197 A.D.3d 1349, 1351 (2d Dep’t 2021); Harkins v. Tuma, 182 A.D.3d 678, 679 (3d Dep’t 2020); Waymar v. Roy Stanley, Inc., 122 A.D.3d 1119, 1120 (3d Dep’t 2014).  However, Broadway’s lease with the County provided that Broadway was responsible for all maintenance and repairs in the Building.  Broadway assumed responsibility under the lease to maintain and repair the Building.  Therefore, Broadway owed Plaintiff a duty to keep the Premises in a reasonably safe condition.  Bush v. Mechanicville Warehouse Corp.¸69 A.D.3d 1207, 1207 (3d Dep’t 2010).  Once determined that a duty was owed, the Court turned to whether Broadway had notice of the condition.  Without “notice of a specific dangerous condition, [Broadway] cannot be faulted for failing to repair or otherwise rectify it.”  As movant, Broadway bore the burden of establishing that it did not have notice of the Plate defect.  To meet its burden, Broadway was required to “offer some evidence as to when the accident site was last inspected prior to…[Plaintiff’s] fall.”  Harkins, 182 A.D.3d at 679; see Fayville v. County of Albany, 163 A.D.3d 1297, 1298 (3d Dep’t 2018).  References to general inspection practices is insufficient.  Miller v. Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d 643, 644 (2d Dep’t 2021).   Broadway submitted the sworn affidavit of David Fallati (employee of the Property Manager).  Fallati stated that he visited the building twice a week, “including the time period of the alleged incident.” According to Fallati, he did not observe, or receive complaints about, any tripping hazards near the elevator threshold area where the accident occurred. The Court held that this proof was insufficient to establish that Broadway lacked constructive notice of the condition of the Plate.  The Court found Fallati's affidavit vague because it stated generally that his inspections occurred twice per week and did not indicate when he last inspected the Elevator threshold prior to Plaintiff's fall. Thus, the affidavit failed to eliminate all factual questions “as to whether the alleged dangerous condition . . . existed for a sufficient period of time prior to [P]laintiff's fall to permit [Broadway] to discover it and take remedial action.” 
                                                                    
2. BCI: Affirmed.  A contractor may be liable in tort where it fails to exercise reasonable care in the performance of its duties, and thereby launches a force or instrument of harm.  Santiago v. Post Rd. Assoc., LLC, 201 A.D.3d 980, 982 (2d Dep’t 2022]; see Espinal v. Melville Snow Constr., 98 N.Y.2d 136, 140 (2002); McEleney v. Riverview Assets, LLC, 201 A.D.3d 1159, 1162 (3d Dep’t 2022).  BCI established that it did not launch a force or instrument of harm by providing evidence that its work on the Building remodel was confined to exterior site work and the pouring of concrete at the ground level, and that it hired subcontractors to perform the interior work including flooring and Elevator installation.  BCI proved that there was no connection between its work at the Building and the Plate.                                                                                             
3. Bay State/Flooring:  Reversed.  The Court held (similar to BCI) that both Bay State  and Flooring met their respective burdens of demonstrating that they did not launch a force or instrument of harm by presenting proof that the installation of the Plate was not part of the scope of duties for which they were hired, that they typically do not install the type of plate that caused Plaintiff's fall and that they did not, in fact, install the Plate in question.  See Santiago, 201 A.D.3d at 982;  Jackson v. Bethel A.M.E. Church, 192 A.D.3d 868, 870 (2d Dep’t 2021).   

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]