Premises Pointers - Volume VI, No. 13

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 for Hurwitz Fine as summer kicks off! I’m proud to announce that Hurwitz Fine has achieved Midsize Mansfield Certification! Mansfield Rule Certification is a nationally recognized law firm diversity certification, which measures whether law firms have affirmatively considered at least 30 percent women, attorneys of color, LGBTQ+ and lawyers with disabilities for leadership and governance roles, partner promotions, formal client meeting opportunities, and senior lateral positions. The initiative also includes a commitment by the firm to be transparent in our internal governance, job descriptions and advancement criteria. As a firm, we are committed to diversity in the law and are thrilled to officially be Mansfield certified!
 
I’m also proud to announce that Hurwitz Fine went a step further and received Certification “Plus” status, which indicates that we have successfully achieved 30% diverse representation in current leadership roles and pipeline activities. We are the first Buffalo-based law firm to achieve this national certification, which is a significant testament to our diversity commitment.
 
I’m also excited to announce our new Labor & Employment team at Hurwitz Fine. While Labor & Employment has long been a core practice area, our new team is lead by Premises Pointers’ columnist Anastasia McCarthy and Amber Storr. Our team has revised their focus and capabilities in providing advice and counsel to our clients and are well-positioned for all of the New York State changes that can affect employers. In fact, Amber Storr has just written on how a new bill, if signed into law, will ban non-compete agreements and provisions across the state. For her update, click here.  

In this month’s edition of Premises Pointers, Marc Schulz’s column covers several cases on discovery issues, which definitely fall under “a word to the wise” category, Scott Kagan provides a great overview on res ipsa loquitor and our retail clients are once again fighting the notice battle.
 
And lastly, Happy 4^th of July. Enjoy the holiday!

-Jody

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] 

6/15/23 Ovalles-Sosa v. Khoudari
New York Appellate Division, First Department 
Court affirmed the denial of Defendants’ motion for summary judgment because issues of fact exist as to whether a store employee stocking shelves shook the shelves and caused the box to fall.
 
Plaintiff brought an action to recover for injuries she sustained when a box containing a vanity mirror fell on her head from an eight-foot-high shelf in Lot Less's store. She alleged that the box was improperly placed on a shelf and that it constituted a hazard. The box allegedly fell on her head while an employee was stocking the shelf from an adjoining aisle. The box fell after the shelf shook and, after the box fell, Plaintiff observed a store employee stocking merchandise on a high shelf on the other side of the shelf unit.
 
Defendants argued that the box was not improperly placed on the shelf. Even if the box was near the edge of the shelf, it could have been placed there by a customer and Defendants would not have had actual or constructive notice.  In an attempt to prove this, Defendants submitted testimony of an assistant manager that employees regularly checked aisles and stocked merchandise two inches from the edge of the shelf. Defendants also submitted the report and affidavit of an expert, who stated that the one-inch raised cap down the middle of the top of the shelf unit would prevent an object from being pushed from one side to the other.
 
In response, Plaintiff submitted an affidavit of her expert disputing the defendants’ experts’ opinions and asserting that the one-inch cap would not prevent boxes on one side from falling over onto boxes on the other side, which would in turn cause them to fall over. Plaintiff further argued that, while defendants claim that Plaintiff's testimony regarding the accident is too speculative, a plaintiff is not required to recall the exact manner in which the incident occurred. Instead, a Plaintiff must identify the defect enough for a trier of fact to find, based on logical inferences, that the defect proximately caused the accident.
 
The court held that, while plaintiff did not raise an issue of fact as to improper placement of the box, the motion court properly held that there are issues of fact as to whether a store employee stocking shelves shook the shelves and caused the box to fall.

 
6/14/23 Buestan v. Tiff Real Property, Inc.
New York Appellate Division, Second Department 
The Appellate Court reversed Trial Court’s decision granting Defendant summary judgment in a slip and fall case concluding that Defendant failed to eliminate all triable issues of fact regarding the wet/oily floor Plaintiff claims caused her fall.
 
Plaintiff brought an action to recover for injuries she allegedly sustained when she slipped and fell on a wet or oily floor after exiting an elevator in the lobby of an apartment building owned by the defendant. The Defendant moved for summary judgment, which the Supreme Court granted. The Plaintiff appealed.
 
The Defendant relied upon the deposition testimony of the Plaintiff and of the Defendant's maintenance employee, who was in charge of mopping the lobby. This testimony proved that the lobby area where the Plaintiff fell had been mopped with a soap-like substance during the hour before the Plaintiff's fall. In fact, after she fell, the Plaintiff noticed that the floor was wet and smelled like a cleaning liquid.
 
The court found that, given this evidence, the Defendant failed to eliminate all triable issues of fact as to whether the substance created the condition that caused the plaintiff to fall or had actual or constructive notice of the condition. In fact, the Defendant could have had a reasonable time to correct or warn about the existence of the condition.
 
Contrary to the Defendant's contention, the evidence regarding the soap-like substance used on the floor before the incident failed to establish that the wet or oily condition of the floor was readily observable by a reasonable use of the plaintiff's senses prior to her fall. Accordingly, the Second Department held that the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

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

Hello Subscribers,

This edition includes a case wherein a defendant’s inadequate discovery responses regarding video footage resulted in an adverse inference at trial and cases analyzing a Jackson affidavit and Arons authorizations. The aptly named Jackson affidavit stems from Jackson v City of New York, 185 AD2d 768, 586 NYS2d 952 (1st Dept 1992), wherein the First Department required the defense to produce an affidavit from the individual who conducted the search of documents/missing records stating that the records sought could not be located and indicating the efforts undertaken to try and locate them. The First Department held that under CPLR 3126, sanctions may be imposed for deliberate, dilatory or willful failure to comply with discovery. The Court in Jackson held that “the affidavit presented by defendant made no showing as to where the subject records were likely to be kept, what efforts, if any were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found” (id. at 770).
 
Best practices for complying in good faith to discovery includes, at a minimum, evidence that a defendant’s personnel conducted a thorough search for the requested discovery in all areas where they were likely to be found, no documents were knowingly disposed of by defendant, and setting forth defendant’s policies and practices for maintaining and preserving said documents, if any.
 
The history surrounding Arons authorizations and the seminal case, Arons v Jukotwiz, 37 AD3d 94 (2d Dept 2006) are discussed within our retired partner’s column in this prior Coverage Pointers edition called Earl’s Pearls, named after Earl K. Cantwell, Jr., Esq.. In short, the Court of Appeals in Arons held that defense counsel may interview a plaintiff’s treating physician privately when plaintiff has affirmatively placed his or her medical condition controversy, albeit with some guidelines since HIPAA imposes procedural prerequisites unique to informal discovery of health care professionals.
 
If you have any good stories with cases involving a Jackson affidavit or Arons authorizations, please reach out and share your experiences. Until next issue, stay safe …
 
Marc

 
05/25/23  Citizen Watch Co. of Am., Inc. v Zapco 1500 Inv., L.P.
Appellate Division, First Department
Defendant’s answer stricken based on a conditional order for failing to produce explicit items responsive to a document demand, and for failing to demonstrate a reasonable excuse for its failure to produce the requested items, including failing to provide a proper Jackson affidavit.
 
The trial court found that defendant failed to comply with an interim order conditionally striking the answer and granted plaintiff’s motion to strike defendant’s answer. The First Department unanimously affirmed the trial court’s decision, determining that defendant’s explanation for its failure to comply with the conditional order fell short of establishing “a reasonable excuse for the failure to produce the requested items,” including a proper Jackson affidavit (see Jackson v City of New York, 185 AD2d 768 [1st Dept 1992]) and finding it made no showing of a meritorious defense; therefore, it was not relieved from the mandates of the conditional order. The Court held defendant’s arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order, the court is not required to find that its failure to comply was willful. Because the trial court was explicit in the interim order as to what defendant was required to produce, and defendant had over one year to produce the requested documents before the conditional order was issued, the Court held there was no reasonable excuse for defendant’s failure to comply.
 
The Court also rejected defendant’s argument that plaintiff’s document demands were improper and should not have been enforced by the trial court since defendant failed to timely object to the document demands and never sought a protective order pursuant to CPLR 3103.
 
05/18/23  Payne v Sole Di Mare, Inc.
Appellate Division, Third Department 
The pretrial determination of an adverse inference charge at trial against defendants for only preserving a 20-second portion of video footage depicting the incident, of which only four seconds proceeding the fall were maintained, was appropriate under the circumstances.
 
Plaintiff attended a wedding and was allegedly injured after a slip and fall. A bartender witnessed the fall and was advised by plaintiff and another guest that plaintiff had potentially slipped on some oil. The bartender inspected the area where plaintiff fell and saw a fully intact, “tiny piece of tomato” that the bartender surmised had come from bruschetta that was being offered to arriving guests. Two days later, plaintiff’s counsel sent a letter to defendants advising them of potential litigation and placing them on notice to preserve, among other things, any relevant video surveillance in its “present form.” Defendant’s general manager thereafter received a message from its President asking to copy the video depicting the fall from their security system. The general manager then segmented a 20-second portion of the footage. which only included the four seconds preceding the fall. The remainder of the footage from the incident was later recorded over in accordance with defendant’s general business practice.
 
The trial court, as relevant here, partially granted plaintiff’s motion, pursuant to CPLR 3126, to strike defendants’ answer based on its failure to provide the “whole” video showing the circumstances leading up to the fall, by determining that plaintiff was entitled to an adverse inference charge at trial owing to defendants’ failure to preserve video evidence.
 
The Third Department affirmed the trial court’s decision as the letter from plaintiff’s counsel sent two days after the incident created a clear obligation to preserve video surveillance footage of the incident. The Court found that the language in the letter requesting that all “video surveillance … in connection with [the] incident” be preserved in its “present form,” coupled with the directive to notify their insurance carrier of the request, should have prompted defendants to seek input from counsel prior to undertaking their determination as to the extent of the preservation required. Since the record also established that defendant’s general manager prepared an incident report suggesting the origin of the hazardous condition that caused plaintiff’s fall was uncertain, the Court held that defendants were obligated to preserve any footage that depicted the conduct of their employees preparing the room for arriving guests because they had sufficient notice “that the surveillance footage, which captured how the accident occurred and the duration of the alleged hazardous condition, might by needed for future litigation.” Thus, the Court affirmed the trial court’s finding that the ensuing failure to preserve such evidence was negligent.
 
The Court further found no merit to defendants’ contention that the video evidence lacks probative value as the relevance of such evidence, and the prejudicial impact of its unavailability, is readily established by virtue of the disputed issues in this action. The deletion of the portion of the video depicting the preparation of the room by defendants’ employees in anticipation of guests arriving up until the moment of plaintiff’s fall clearly has a detrimental effect on plaintiff’s inability to establish whether defendants’ employees created the hazard. Considering that plaintiff’s case was not fatally compromised by the loss of the video, the trial court’s determination of an adverse inference imposed here was appropriate under the circumstances.
 
6/01/23 Almonte v Consolidated Edison Co. of N.Y., Inc.
Appellate Division, First Department 
Defendant is not entitled to the disclosure of data from testing performed by plaintiffs’ experts, which defendant asserted was not usually appropriate for initial imaging evaluation of acute head trauma.
 
In this personal injury action alleging a traumatic brain injury (“TBI”), defendant argued that the testing performed or relied on by plaintiff’s CPLR 3101(d) experts, including an MRI with Diffusion Tensor Imaging (“DTI”), FDG-glucose uptake PET Scan and an MRI brain volume analysis based on the same MRI and DTI are not usually appropriate for initial imaging evaluation of acute head trauma. To that end, defendant demanded that plaintiff provide authorizations directing her designated experts to produce records regarding controls, standards and calibrations of these tests, for purposes of a Frye challenge. The trial court denied plaintiffs’ motion for a protective order and granted defendant’s cross-motion to compel discovery to the extent of directing plaintiffs to provide authorizations to obtain medical records and testing records (including controls, standards and calibrations) including from nonparties Dr. Lipton, Dr. Golzard, Montefiore Medical Center and Montefiore Advanced Imaging.
 
The First Department unanimously reversed the trial court’s decision, granted plaintiff’s motion and denied defendant’s cross-motion. Plaintiffs demonstrated that they fully complied with all discovery demands and orders by making the disclosure required by CPLR 3101(d), as well as providing HIPAA-compliant authorizations for production of her medical records from all her medical providers, and Arons authorizations permitting ex parte interviews of her designated experts. The Court held that plaintiffs’ responses asserted appropriate objections to the disclosure demanded of data underlying the MRI and DTI testing, including that the information demanded is not within her control and was proprietary information of Dr. Lipton or Montefiore. The Court noted that defendant never sought third-party disclosure directly from the medical providers and designated experts or Montefiore. Defendant’s contention that the testing data is needed to challenge the evidentiary foundation of Dr. Lipton’s opinion testimony was raised for the first time on appeal, and did not demonstrate special circumstances, given that plaintiffs’ expert provided an affirmation confirming that the testing of plaintiff complied with the protocols described in the peer-review articles disclosed.
 
06/07/23 J.S. v Educational Alliance, Inc.
Appellate Division, Second Department 
Plaintiff ordered to provide a supplemental verified bill of particulars as to the specific location of the alleged incident.
 
An infant was allegedly injured at a school owned and operated by defendant. In response to defendant’s demand for a verified bill of particulars, plaintiffs objected to the paragraph requesting information regarding the “exact place and location where it is claimed the alleged incident occurred.” Plaintiffs then reiterated the address of the school as the “approximate location of the occurrence.” The trial court granted that branch of defendant’s motion, pursuant to CPLR 3124, to compel plaintiffs to provide a more specific description of the incident’s location.
 
The Second Department held the trial court providently exercised its discretion in directing plaintiffs to supplement their response to defendant’s demand with a more specific description of the incident’s location (see CPLR 3043[c]; Mayer v Hoang, 83 AD3d 1516, 1518 [4th Dept 2011]; Castellano v Norwegian Christian Home & Health Ctr., Inc.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
 
The duck-billed platypus is one of the most fascinating animals in the world.  Semi-aquatic, egg-laying, mammals native to Australia.  It is one of only 5 mammalian species that lay eggs.  So, when I saw an article on duck-billed dinosaurs, my interest was piqued. 

These dinosaurs are known as duck-billed dinosaurs for the flat duck-bill appearance of the bones in their snouts.  Duck-billed dinosaurs (also known as hadrosaurids), were thought to have lived around 66 million years ago.  A new study in Science Advances revealed evidence that hadrosaurids may have lived as long as 72 million years ago in sub-Antarctic South America.  Fossil evidence revealed a new type of duck-billed dinosaur, which was named Gonkoken nanoi (“gon” and “koken” are Indigenous Aónikenk for “similar to” and “wild duck or swan”).  The predecessors differed from the later hadrosaurids previously known to have existed.  Researchers are hopeful that finding additional Gonkoken will lead to figuring out how they are related to other duck-billed dinosaurs.  

No duck-billed dinosaurs or platypus here.  Just an allegation of a defective elevator door arising out of improper maintenance.  Multiple motions.  Multiple theories.  Let’s find out what the Court thinks.    

I hope you enjoy the ride. 
Scott

5/30/2023  Carlos Diaz v. 2 Broadway Ground Lease Trust, et al. 
Supreme Court, New York County
Questions of fact exist as to notice and res ipsa loquitur.

Plaintiff, Carlos Diaz (“Plaintiff”), alleges injuries sustained due to a malfunctioning elevator (the “Elevator”).  Plaintiff alleges that on January 3, 2014, the infrared/sensor beams, and the manual mode of the Elevator malfunctioned and closed on the right side of his body (the “Incident”).  Plaintiff filed suit against the lease holders, owners, and managers of the property (collectively, “Property Defendants”).  Plaintiff later amended the Complaint to include the sub-contracting managing company, Slade Industries, Inc. (“Slade”), and the maintenance company, ABM Janitorial Services (“ABM”).  Multiple Third-Party actions (not applicable to the within motions) were filed.  

Slade moved for summary judgment pursuant to CPLR 3212 arguing entitlement to judgment as a matter of law on the grounds that it did not create, nor have notice of the alleged defective condition, and that the doctrine of res ipsa loquitur should not apply (the “Motion”).  Slade also sought a dismissal of all cross-claims and claims for indemnification.  Property Defendants opposed the Motion and cross-moved for summary judgment on similar grounds (the “Cross-Motion”).  

The Law

In a premises liability-related action, where the summary judgment movant alleges that they neither created nor had actual or constructive notice of the defective condition, it is their burden to establish lack of notice as a matter of law.  Giuffrida v Metro N. Commuter R.R. Co., 279 A.D.2d 403 (1st Dep’t 2001); see e.g., Piacquadio v Recine Realty Corp., 84 N.Y.2d 967 (1994); Gordon v American Museum of Natural History, 67 N.Y.2d 836 (1986); Rogers v Dorchester Assoc., 32 N.Y.2d 553 (1973); O'Neill v Mildac Props., 162 A.D.2d 441 (2d Dep’t 1990); Liebman v Otis El. Co., 127 A.D.2d 745, 746 (2d Dep’t 1987); Sanchez·v City of New York, 211 A.D.3d 1065 (2nd Dep’t 2022); Dyer-Crewe v Schindler Elevator Corp, 205 A.D.3d 474 (1st Dep’t 2022).

In actions regarding elevator malfunctioning, elevator companies may be liable if they were contracted to maintain elevators in a safe operating condition and the accident resulted from their failure to correct a condition, they had knowledge of or failed to use reasonable care to discover.  Moreover, lease holders/property owners continue to owe a nondelegable duty to elevator passengers to maintain their building's elevators in a reasonably safe manner.  See Rogers, 32 N.Y.2d at 559; see e.g., O'Neill, 162 A.D.2d at 441. Furthermore, negligence in elevator-related actions may be inferred from evidence of prior malfunctions.  See Rogers, 32 N.Y.2d at 557.

Regarding the evidentiary doctrine of res ipsa loquitur, a factfinder may infer negligence if a plaintiff presents evidence (1) that the occurrence would not ordinarily happen in the absence of negligence, (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendants, and (3) that no act or negligence on the part of plaintiff contributed to the accident.  Barkley v Plaza Realty lnvs. Inc., 149 A.D.3d 74 (1st Dep’t 2017); Miller v Schindler El. Corp., 308 A.D.2d 312 (1st Dep’t 2003).  With respect to the second element, it may be applicable to more than one defendant, where the leaseholder/owner/manager and elevator company jointly exercise "exclusive control" over the elevator since the exclusivity requirement is as a relative term, not an absolute one.  Burgess v. Otis El. Co., 114 A.D.2d 784 (1st Dep’t 1985), affd 69 N.Y.2d 623 (1986).

Slade’s Motion

Slade asserts that there were no prior complaints or similar incidents with the Elevator, relying on invoices and building dispatch statements, Incident report, and deposition testimony of various witnesses.  However, the testimonial and documentary evidence revealed prior maintenance issues with the Elevator.  Specifically, Slade’s own witness testified that he did not recall when, prior to the Incident, the Elevator was inspected, or any work performed.  Neither were maintenance logs submitted despite testimony of regular maintenance.  Moreover, records submitted revealed prior malfunctions (e.g., prior problem with the elevator's door safety sensor, undefined shutdown of the elevator due to a fuse replacement, and issue with the elevator's door opening button).  In addition, Plaintiff testified to recurring problems with the doors of the Elevator, which he discussed with a Slade mechanic prior to the Incident.  Based upon these facts, the Court found triable questions of fact existed as to whether Slade had actual or constructive notice of the alleged defect. See Stewart v World El. Co., Inc., 84 A.D.3d 491 (1st Dep’t 2011). 

As to the doctrine of res ipsa loquitur, based on Slade's evidence and Plaintiffs Opposition, a trier of fact could find that it applies.  Plaintiff submitted the expert affidavit (“Carrajat Aff.”) on more than just deposition testimony stating that the Elevator doors closed on Plaintiff due to the detector not working and Slade had notice of similar problems with the same Elevator.  The Carrajat Aff. stated that there was no evidence that the detector itself or the various cables connected to the detector's control box were checked by Slade and concluded that “the proximate cause of the accident and injuries to Plaintiff were caused by the malfunctioning of the elevator” since the Elevator was in manual mode and the doors should not have closed without the button being pressed by the operator, nor does this occur without negligence on the part of the entity responsible for maintenance.  Based on the Carrajat Aff., the Court found that a jury may reasonably infer that the malfunction of the Elevator door was an event that would not occur in the absence of negligence.  The Court further concluded that the evidence submitted raised questions of fact as to whether Slade exercised exclusive control over the elevator based upon witness testimony.  

Motion Denied.

Premise Defendants’ Motion

The Premises Defendants also moved for summary judgment and dismissal of the contractual indemnification claims from Slade and ABM.  Premises Defendants relied on the same arguments as Slade (i.e., they did not create nor had actual or constructive notice of the alleged defective condition).  Premise Defendants further argue that they are not liable for Plaintiff's injuries as SLADE and ABM were contractually responsible for the maintenance, repairs, and cleaning of the Elevator sensor beams.  The Court held that questions for a trier of fact existed as to whether the Premise Defendants had notice of the alleged defect.  Testimony from their own witness revealed frequent service, prior repairs to the doors and dirty beam sensors causing problems.  Thus, Premises Defendants could not prove having no notice of the condition.  

As to the applicability of the doctrine of res ipsa loquitur, a trier of fact may find that it applies. Plaintiff contends that the detector in the Elevator malfunctioned, failing to sense Plaintiff’s presence between the doors due to improper maintenance.  Plaintiff also submitted the Carrajat Aff. stating that his accident would not happen in the absence of negligence.  Thus, a jury may find that Plaintiff's accident did not happen without negligence, that Premise Defendants did not cede all responsibility for the daily operation, repair, and maintenance of the Elevator to Slade or ABM, and thus had "joint control."  See Barkley, 149 A.D.3d 74; Miller, 308 A.D.2d 312).  

Cross-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]