Premises Pointers - Volume VI, No. 2

Volume VI, No. 2 Tuesday, July 26, 2022 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.

Greetings from sunny and warm Buffalo! Hope everyone is enjoying the fabulous summer weather (even if it’s a little hot!). In additional to being a busy summer, it’s been a busy time for the firm these past few months with the addition of several new attorneys, the celebration of our 45th anniversary and launch of our new look. 

As I’ve talked about before, I am very passionate about DEI and was recently a featured panelist in Buffalo Business First’s June 2022 Panel of Experts on diversity, equity, and inclusion.

During this panel, I engaged with other established and acclaimed women in leadership roles across Western New York about how they each have demonstrated efforts of diversity and inclusion in their respective places of work and offer further insight on how they intend to enhance and continue these strategies moving forward. 

If you’re interested in the conversation, you can read the full article from Buffalo Business First here and watch the video. Please feel free to pass on any questions or comments you might have on the DEI front. I’d love to hear from you. Lastly, we have some changes in store for Premises Pointers this fall so stay tuned for new columnists and content! 


And don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list. Employment & Business Litigation Pointers:  This newest addition to our Pointers newsletters aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Labor Law Pointers:  Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe. Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe. Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

Retail, Restaurant and Hospitality Happenings Around New York State and Beyond By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]
6/27/22            Collins v. Walmart Stores East, LP United States District Court, Eastern District of New York Defendant’s motion for summary judgment was granted because Plaintiff failed to show that the clothes hanger which caused his fall was on the floor long enough for Defendant to discover and remedy it – Plaintiff’s motion for spoilation sanctions denied.   Plaintiff commenced an action to recover for injuries he allegedly sustained when he slipped and fell on a clothes hanger that had fallen onto the floor of a Walmart store. Defendant moved for summary judgment. The Court first looked at whether Defendant created the condition and found that there was no evidence in the record showing how the hanger ended up on the floor, nor was there circumstantial evidence from which it could be inferred that Defendant caused the hanger to be on the floor. The Court then determined Plaintiff had not met his burden of providing evidence that Defendant caused the dangerous condition.   Turning next to the issue of actual notice, the Court found that the record was devoid of evidence that any of Defendant’s employees knew about the condition, nor were there any statements from witnesses stating they knew about the condition prior to Plaintiff’s fall. The only evidence in the record was after the fall when Plaintiff informed a cashier of the incident. The Court thus concluded that the Defendant did not have actual notice of the hanger’s presence on the floor prior to Plaintiff’s fall.   Lastly, the Court addressed the issue of constructive notice. Defendant argued Plaintiff had not met his burden to show that the dangerous condition was “visible and apparent” or that it existed for a sufficient length of time prior to Plaintiff’s fall to permit Defendant to discover and remedy it. Plaintiff argued he met his burden by showing that Defendant failed to perform a reasonable inspection prior to Plaintiff’s fall. The Court, while noting that New York courts have held that the issue of whether defendants have conducted reasonable inspections is part of determining whether defendants fulfilled their duty to maintain the premises in a reasonably safe condition, held that Plaintiff cannot meet his burden under the federal summary judgment standard by simply pointing to the lack of proof proffered by Defendant that an inspection did occur. The Court concluded that Plaintiff would bear the burden at trial to prove that reasonable inspections did not occur prior to Plaintiff's accident, and Plaintiff had not submitted sufficient evidence to meet such a burden; therefore, constructive notice cannot be imputed here.   Lastly, Plaintiff argued spoliation. Defendant’s position is that it turned over all relevant video and that it had no camera in the store that captured the plaintiff’s fall.  For a sanction to be imposed, Plaintiff, as the party seeking sanctions, must establish that Defendant, the party who had control over the evidence, had an obligation to preserve it when it was destroyed; that the records were destroyed with a culpable state of mind; and that the evidence was relevant such that a reasonable trier of fact could find it would support the party's claim or defense.   For an adverse inference on summary judgment to be warranted based on spoliation of evidence, Plaintiff must establish that the evidence at issue existed; the evidence was in the exclusive possession of the non-moving party; and the non-production of the evidence has not been satisfactorily explained. Here, Plaintiff argues that he is entitled to an adverse inference sufficient to defeat summary judgment because videos were not disclosed to him which he claims would have potentially revealed how long the hanger was on the floor, how it came to be on the floor, and either the existence or non-existence of an inspection. The Court noted that sworn testimony from Defendant and Defendant’s asset protection manager indicates no camera covered the location of the accident, and nothing in the record contradicts that assertion. Plaintiff provided no evidence to contradict Defendant's claim that no camera captured the accident location. The Court thus concluded that no adverse inference is warranted.   07/08/22          Hunt v. Dolgencorp of New York, Inc. et al Appellate Division, Fourth Department Defendants’ motion for summary judgment based on assistant store manager’s testimony confirming inspections of the area every 30 minutes.   Plaintiff sued to recover for alleged injuries she sustained when she slipped and fell on a clear liquid while walking down an aisle in one of Defendant’s stores. Defendants filed a motion for summary judgment on the basis that they did not create the alleged dangerous condition and did not have actual or constructive notice of the condition. The Supreme Court granted Defendants’ motion.   On appeal, the Court noted that the only issue at dispute was whether Defendants had constructive notice of the dangerous condition. In support of their motion, Defendants had submitted an affidavit of the assistant store manager, who stated she inspected the premises every 30 minutes to check for safety hazards, and that she had walked down the aisle where Plaintiff fell approximately 15 minutes before Plaintiff’s accident and did not see anything on the floor. The Court found that Defendants met their burden of establishing lack of constructive notice through the aforementioned affidavit. This shifted the burden to Plaintiff to raise a triable issue of fact. In opposition to the motion, Plaintiff relied on video footage from surveillance cameras to refute the assistant manager’s statements pertaining to inspecting the area. However, the footage did not capture the area where Plaintiff fell, so the Court determined it did not confirm or refute the assistant manager’s statements, and that Plaintiff therefore had failed to raise a triable issue of fact.
Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected] Hello Subscribers! The Firm’s softball team has been on a roll since losing the first game of this season to one of the league’s top (and stacked) teams. Hopefully, our starters return healthy in time for an epic playoff run! Courts must have read my cover note from last edition as we have plenty of interesting discovery cases to discuss this month. The Lopez case involves defendants’ discovery request for plaintiff’s social media posts and a tailored limitation to the particular controversy with temporal limitations. That case also discusses the Jackson affidavit, which adequately sets forth a party’s good faith efforts to comply with discovery demands. A party’s Jackson affidavit should affirm that (1) the party’s personnel had conducted a thorough search for the requested documents in all areas where said documents and/or information were likely to be found; (2) no documents were knowingly disposed of by the responding party so as to undermine the other party’s right to fully discovery; and (3) the party did have some policies in place for keeping and maintaining files, but evidently the polices were not universally or particularly detailed, and somewhat left to the discretion of the file creator to determine what records were most pertinent for business purposes (see Trade Expo. Inc. v Sterling Bancorp, 171 AD3d 634 [1st Dept. 2019]).   I also report on two spoliation cases from the Second Department. Remember, a party seeking spoliation sanctions must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense. If you have an interesting spoliation story and/or post-Forman social media demand issue, I’d like to hear about your experiences, so please reach out.   Until next issue, stay safe …   Marc 06/21/22                Lopez v Bendell Appellate Division, First Department Defendants entitled to psychiatric IME for emotional distress claim that allegedly caused depression, anxiety, dizziness, and headaches, as well as severe mental anguish and trial court appropriately limited defendants’ discovery request for plaintiff’s social media posts.   The trial court denied defendants’ motion to compel plaintiff to appear for an IME and to respond to interrogatories and document requests. The trial court also denied defendants’ motion to vacate the note of issue. The First Department unanimously modified the trial court's order by granting defendants’ request to compel an IME but affirmed denial of the majority of defendants’ demands as irrelevant or overly broad, including, defendants’ discovery request for plaintiff’s social media posts because the trial court narrowly tailored those requests to this particular controversy and properly included temporal limitations. The Court also granted the IME after finding that plaintiff’s mental condition is, in fact, in controversy since she requests compensatory damages only for her alleged emotional distress, and she testified that she experienced depression, anxiety, and dizziness, as well as headaches brought on by severe mental anguish. As a result, the Court held that a mental examination by a psychiatrist is warranted to enable defendants to rebut plaintiff’s claim for emotional distress. Since plaintiff had not yet complied with the trial court’s directive to submit a Jackson affidavit detailing the process she had undertaken to search her social media, the Court granted defendants’ motion to vacate the note of issue. 06/21/22          Froehlich v Kimco Realty Corp. Appellate Division, Second Department Defendants not entitled to authorizations and medical records of plaintiff’s right shoulder and both knees where plaintiff only claimed an injury and resulting limitations to his left shoulder.   Plaintiff fell in a parking lot allegedly owned by defendants. In his bill of particulars, he allegedly sustained a left elbow fracture, which required surgery and resulted in chronic pain and loss of range of motion in his left elbow. The trial court denied defendants’ motion to compel plaintiff to provide authorizations for the release of Workers’ Compensation disability and medical records pertaining to injuries to plaintiff’s right shoulder and both knees, which occurred prior to the subject incident.   The Second Department affirmed because plaintiff’s allegations and claim for damages were limited to injuries to his left elbow and the residual effects of that particular injury. Accordingly, the Court held that plaintiff had not placed in controversy either his entire medical condition or the prior injuries and medical treatment of his other shoulder and knees.   07/08/22          Ashley M. v Marcinkowski Appellate Division, Fourth Department Defendants not entitled to protective order quashing nonparty subpoenas for veterinary records of defendants’ dog in dog-bite case since said records may contain information reasonably calculated to lead to relevant evidence.   Plaintiff’s infant was allegedly attacked by defendants’ dog. She subpoenaed the dog’s veterinary records from two nonparty veterinary hospitals. The trial court granted plaintiff’s motion for leave to renew and, upon renewal, denied defendant's motion to quash subpoenas and for a protective order. Here, the Fourth Department held the contested veterinary records are material and necessary to the prosecution of plaintiff’s action, because, at the very least, they “may contain information reasonably calculated to lead to relevant evidence”.   The Court rejected defendants’ argument that Education Law § 6714 prohibits the release of the records pursuant to a subpoena by finding that nothing in the plain language of that statute prohibits a veterinarian from providing a copy of treatment records pursuant to a subpoena.   07/13/22          Milazzo v Beset Mkt. Appellate Division, Second Department Plaintiff not entitled to discovery sanctions against defendants for spoliation of evidence because plaintiff failed to establish that defendants intentionally or negligently failed to preserve surveillance footage or that their failure to do so deprived her of the ability to prove her claim.   Plaintiff allegedly was injured when she slipped and fell on a blueberry at a grocery store owned by Best Market and Best Yet (collectively “defendants”). Surveillance footage 2 minutes and 45 seconds prior to the fall was recorded by a store video camera and preserved by an employee. Due to storage limitations, however, the remainder of the footage from that day was automatically deleted after 30 days.   The trial court denied that branch of  plaintiff’s motion, pursuant to CPLR § 3126, to impose sanctions against defendants for spoilation of evidence and granted defendants’ motion for summary judgment dismissing the complaint. The Second Department affirmed because plaintiff failed to establish that defendants intentionally or negligently failed to preserve surveillance footage from the date of the accident depicting a larger time period, or that their failure to do so deprived her of the ability to prove her claim. Defendants were also entitled to summary judgment because they demonstrated that they did not create the alleged dangerous condition and did not have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it prior to plaintiff’s fall.   07/13/22          Phelps-Vachier v Genovese Drug Stores, Inc. Appellate Division, Second Department Plaintiff’s motion to impose sanctions against defendants for spoliation of evidence denied “without prejudice to renewal upon completion of discovery”.   Plaintiff allegedly slipped and fell inside a Rite Aid owned by defendants. The next day, plaintiff’s counsel sent a preservation notice to defendants requesting that they preserve video surveillance footage of the area where the incident occurred “for the time period of 3 hours before and two hours after the accident”. Defendants preserved 35 minutes of video footage, starting 12 seconds prior to the incident.   The trial court denied plaintiff’s CPLR § 3126 motion for sanctions against defendants for spoilation of evidence. The Second Department held that plaintiff failed to demonstrate that the absence of video footage depicting the three hours prior to the incident deprived her or her ability to prove her claim. However, under the circumstances of this case, and in view of the fact that discovery has not yet been completed, the Second Department modified the trial court's decision by adding the words “without prejudice to renewal upon completion of discovery” at the end of the order.
Pushing Buttons: The Ups & Downs of Vertical Transportation Law By: Scott D. Kagan [email protected] Tardigrades (a/k/a “Water Bears” a/k/a “Moss Piglets”) are a phylum of eight-legged segmented micro-animals. They are most known for being one of the most resilient animals alive. They can withstand conditions of extreme temperatures, high and low pressure, air deprivation, radiation, dehydration, and starvation. They are also adorable – google them!

The Tardigrade can endure extreme conditions that don’t exist on earth. Now researchers are using Tardigrades to learn how to prepare humans and crops to handle the extremes of space travel. According to an article from ScienceNews.Org, “emulating tardigrades could one day help humans colonize outer space.” If we make it to space before I retire, I hope I can add space elevator law updates to this column.    

A very slow couple of months for elevator/escalator updates. This month brings you a tangentially related breach of contract issue arising from the installation of an elevator.   

I hope you enjoy the ride. 


6/9/2022                  McGlynn, Hays & Co., Inc. v. 3 East 89 Holding LLC, et ano.   Supreme Court, New York County Plaintiff’s failure to utilize safety harness was not the sole proximate cause of the injury.

F&S Contracting Group, Inc. (“Contractor”) entered into a written subcontract agreement (the “Subcontract”) with McGlynn, Hays & Co., Inc. (“Subcontractor”) to provide materials, equipment, and labor for the installation of a new passenger elevator at the premises located at 3 East 89th Street, New York, New York (the “Premises”). The installation was part of a larger renovation of the Premises which housed an art and design gallery. Contractor entered into a written agreement (the “General Contract”) with 3 East 89 Holding, LLC (the “Owner”). The Subcontract incorporates the General Contract by reference.  The Subcontract placed the Subcontractor in privity of contract with Contractor only. 

Motion #1

Owner moved to dismiss Subcontractor’s Complaint pursuant to CPLR 3211 (a)(1) and (a)(7). Pursuant to CPLR 3211(a)(1), dismissal is proper where the documentary evidence and undisputed facts negate or dispose of the claims in the complaint or establish a defense. See Alvarado v. Beth Israel Med. Ctr.¸ 60 A.D.3d 981, 982-83 (2d Dep’t 2009). A contract qualifies as documentary evidence for purposes of a motion to dismiss. 

Citing to a string cite of First, Second, and Third Department caselaw, the Supreme Court stated the well-settled principle that a subcontractor cannot state a claim against an owner for breach of contract due to the absence of privity. The Supreme Court, agreeing with existing precedent, found that there was no privity between Subcontractor and Owner because the Owner was not a party to the Subcontract. Moreover, a subcontractor may not bring a claim against an owner where, as here, the provisions of the General Contract were incorporated by reference in the Subcontract and expressly disclaimed liability to subcontractors. Kaback Enterp. Inc. v. Time Inc., 27 A.D.3d 279 (1st Dep’t 2006). 

In opposition, Subcontractor argued that Contractor entered into the Subcontract as an “agent” for the Owner. Whether a contractor is an “agent” depends on the substantive provisions. Here, there was no language in the General Contract or Subcontract providing evidence that the Contractor was an “agent” of the Owner. The Subcontractor’s conclusory allegation of agency was contradicted by the plain language of the Subcontract. To the contrary, the Subcontract established no agency relationship. 

Under these circumstances, the Court reasoned that no discovery would change the clear terms of the Subcontract and General Contract and dismissed the breach of contract causes of action against Owner.   

Motion granted.

Motion #2

Subcontractor cross-moved to amend its complaint to add causes of action against the Owner. The Court denied the motion since the causes of action were palpably improper and insufficient as a matter of law. First, the Court determined that the unjust enrichment cause of action was insufficient as a matter of law because it is well settled that a subcontractor cannot assert an "unjust enrichment" or "quasi contract" claims against an owner of the project to whom it is not in privity. Sears Ready Mix, Ltd. V. Lighthouse Marina, Inc., 127 A.D.3d 845, 846 (2d Dep’t 2015).  Second,  the Court determined that the proposed tortious interference claim was also insufficient as a matter of law because Subcontractor restated the basic elements of the claim without alleging any specific facts at all.

Motion denied.

Motion #3

Subcontractor also moved to disqualify Counsel for a defendant; however, that defendant was already dismissed from the action.   

Motion denied.

Not a good day for Plaintiff. 

NEWSLETTER EDITOR Jody E. Briandi [email protected] ASSISTANT EDITORS Anastasia M. McCarthy [email protected] Marc A. Schulz [email protected] Scott D. Kagan [email protected] Lani J. Brandon [email protected]
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