Premises Pointers - Volume VI, No. 3

Volume VI, No. 3 Wednesday, August 24, 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.

August has been a busy month for Hurwitz Fine!


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 newsletter aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Sign up here if you would like to subscribe. 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]
This month we have two retail/restaurant cases venued in Federal Court – one in the Southern District and the other in the Northern District. In both cases summary judgment was granted to the retail/restaurant defendants. One case focuses on the nature of the condition which was not deemed inherently dangerous and the other on the lack of constructive notice in the record noting it was plaintiff’s burden to prove.

7/27/22               Silvestri v. Kohl’s Department Stores, Inc., et al United States District Court, Southern District of New York Display shelf was deemed not inherently dangerous and was open and obvious therefore Court granted Defendants’ motion for summary judgment.

Plaintiff sued to recover for injuries she allegedly sustained when she tripped and fell over the metal bar of a display at a Kohl’s store. Defendants moved for summary judgment arguing that the display over which Plaintiff fell was open and obvious and not inherently dangerous.

Plaintiff argued that the bar which caused her fall was hidden from view and thus not open and obvious. She did not cite case law or evidence in the record to support her argument. Noting that New York case law has established that self-serving testimony on its own is not sufficient to defeat a motion for summary judgment, the Court concluded that Plaintiff failed to prove the existence of a genuine dispute of fact and determined that the record sufficiently established that the condition was open and obvious.

The Court turned next to the issue of whether the condition was inherently dangerous. Plaintiff argued that a material issue of fact was in dispute regarding whether the metal bar(s) on the display were protruding, and cited to Plaintiff’s deposition testimony to show this alleged dispute in facts. As it had stated earlier when addressing the issue of “open and obvious,” the Court stated that it cannot rely solely on Plaintiff’s deposition testimony to defeat a motion for summary judgment where the moving party has met its prima facie burden. The Court noted that a landowner has no duty to warn against open and obvious conditions that are not inherently dangerous and found that Defendants were entitled to summary judgment with respect to their duty to warn.

Lastly, the Court addressed the issue of Defendants’ duty to maintain safe premises, noting that New York courts have held that, where a property's condition that caused a visitor to slip and fall is “open and obvious” and “not inherently dangerous as a matter of law,” the property owner did not breach its duty to maintain its property in a reasonably safe condition. The Court further noted that, where a court finds a condition to be open and obvious and not inherently dangerous, a property owner’s notice of the condition is immaterial insofar as it does not constitute an unsafe condition about which the property owner should be on notice. Concluding that such is the case here, the Court granted Defendants’ motion for summary judgment.  

8/17/22               Coulter v. Barbeque Integrated, Inc., dba Smokey Bones United States District Court, Northern District of New York Court granted Defendant’s motion for summary judgment because Plaintiff failed to present admissible evidence that the bunched-up rug which caused her fall was bunched up for a sufficient length of time prior to her fall for Defendant to correct it.

Plaintiff commenced an action to recover for alleged injuries she sustained when she tripped and fell over a rug in the entrance to a Smokey Bones restaurant. Defendant filed a motion for summary judgment arguing that Plaintiff was unable to establish that a defective or dangerous caused her fall and that, even if Plaintiff’s fall was caused by a defective or dangerous condition, she was unable to establish that Defendant created or had actual notice of the condition.

The Court found that admissible evidence exists in the record that, prior to Plaintiff’s fall, a carpet or rug was bunched up or folded up in the entrance to Defendant’s restaurant, causing a dangerous condition. The evidence was in the form of hearsay which Defendant was unable to prove was inadmissible. Determining that a dangerous condition existed, the Court then found that no evidence or argument had been presented showing that Defendant created or had actual notice of the dangerous condition. Turning next to the issue of constructive notice, the Court found that the only possible evidence of constructive notice is the fact that, at the time of Plaintiff’s fall, a greeter was present at the greeter station about ten feet away from where Plaintiff fell. The Court determined that it does not appear that the mere proximity of the greeter to the dangerous condition would suffice to give rise to constructive notice to Defendant under the circumstances. Finding that no admissible evidence exists that the condition existed long enough for an employee of Defendant to remedy the dangerous condition, the Court granted Defendant’s motion.

School District & Municipal Liability By: Anastasia M. McCarthy [email protected]
Dear Readers, After three months of maternity leave, I am happy to return to the office and business as usual.  Although I had a very nice (and busy) time off with the mini-McCarthys, Josie and Elliot, it is nice to get back to the practice of law and all it entails.  Call me a nerd, but I do enjoy the job (and my colleagues). This summer was a whirlwind. We welcomed Elliot at the end of May and spent a lot of time together as a family.  We visited the Buffalo Zoo and the Strong Museum of Play in Rochester; we marched in the Rochester Pride Parade, vacationed with my parents in Western Massachusetts, and spent a lot of time in the pool and at our local library. Josie also played her second season of soccer and celebrated her third birthday with a unicorn themed pool party last weekend.  We are now getting ready for a family trip to Toronto during Labor Day weekend.  As the summer comes to a close, it seems fitting to bring you two school-related cases—the first is a premises liability case before the Second Department and the second is a Second Circuit case discussing New York’s vaccination requirements for school-aged children. July 20, 2022 R.B. v. Sewanhaka Central High School District Appellate Division, Second Department (Decision available upon request). The Appellate Court revives a premises liability claim related to a glass panel in a display case finding issues of fact on notice of hazard as well as the open, obvious, and inherently dangerous nature of the alleged hazard.   Plaintiff, an eighth-grade student in the District, was injured when he inadvertently slapped the glass panel of a display case, causing the panel to shatter.  Among other things, Plaintiff and his mother alleged that the District negligently supervised its students, negligently hired and trained its employees, and negligently maintained the premises.  After the Defendant moved for summary judgment, the Trial Court dismissed Plaintiffs’ Complaint in its entirety.  On appeal, however, the Second Department modified the Trial Court’s Order, in part, to reinstate Plaintiffs’ premises liability cause of action.  Specifically, the Court held that the District failed to demonstrated its prima facie entitlement to judgment as a matter of law because the evidence set forth in support of its arguments did not eliminate triable issues of fact on (1) notice of the defective condition (a custodian testified that at least one other glass panel in a similar case had shattered before this incident) and (2) whether the glass panel was open, obvious, and not inherently dangerous (particularly because two other panels were made of shatterproof plexiglass and Plaintiff testified that he thought all of the case’s panels were unbreakable). Although Plaintiffs challenged the dismissal of their other negligence claims, the Appellate Division did not reinstate them and instead affirmed their dismissal.   July 29, 2022  Jane Goe Sr. et al v. Zucker et al. U.S. Court of Appeals, Second Circuit Complaint challenging New York’s repeal of non-medical vaccine exemptions (and guidelines clarifying medical exemptions) did not state a Due Process violation nor a claim arising under the Rehabilitation Act.   Plaintiffs were a national non-profit organization and parents of “medically fragile” children whose requests for medical exemptions to state-wide vaccine requirements had been denied by their school district.   Following a nationwide measles outbreak, the State of New York (1) repealed non-medical exemptions to its vaccine requirements for school-aged children and (2) adopted new regulations (issued by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention), which clarified the requirements for establishing a medical exemption.  The Plaintiff-Parents challenging New York’s repeal and new guidelines in this case, alleged that their attempts to medically exempt their children from the State’s vaccine requirements were denied for a myriad of reasons, including that their requests lacked sufficient detail, did not meet the new governmental guidelines, or were improperly submitted.  In denying the requested medical exemptions, the District relied on the opinion of its own District physician.   The Trial Court granted the District’s motion to dismiss (pursuant to Federal Rule 12(b)(6), failure to state a claim).  This appeal ensued. On appeal, the Second Circuit considered (1) whether the regulations violate the Plaintiff’s constitutional rights under the Fourteenth Amendment; and (2) whether the regulations violate Plaintiffs’ rights under the Rehabilitation Act.  The Second Circuit affirmed the Trial Court’s ruling, finding that Plaintiff’s had not plausibly alleged any substantive due process claim nor any underlying constitutional violation.  Indeed, in rejecting Plaintiffs’ attempts to apply a strict scrutiny standard to these claims, the Second Circuit determined that the State’s new regulations satisfied a rational basis review. Similarly, the Court determined that the Plaintiffs had not plausibly alleged that they were excluded from school solely by reason of their disabilities (thus leaving them without a claim under the Rehabilitation Act as well.
Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected]
Hello Subscribers!   It was a solid year for the Firm’s softball team, but our season ended last week with a loss in the first round of the playoffs. That makes it consecutive years the squad has made the playoffs, so hopefully we can maintain the continuity of our rising stars! I report on a variety of discovery cases in this month’s edition, but we need to discuss the Fourth Department’s decision in Tousant v Aragona. The trial court in that case denied defendants’ motion for the production of plaintiff’s cell phone but granted the production of the cell phone records from plaintiff’s service provider. Although the cell phone records obtained from the service provider established that plaintiff was not talking on his cell phone at the time of the accident, they did not indicate whether he was using it at the time of the accident for purposes other than verbal communications (i.e., iMessages or using on app such as Facebook or Snapchat). After the trial court denied defendants’ motion to produce the cell phone for the second time, the Fourth Department reversed and granted defendants’ motion because they satisfied the threshold requirement that their request was reasonably calculated to yield information that was material and necessary, i.e., relevant, to the issues involved in the case. Evidence concerning whether plaintiff was distracted before the accident is relevant to the issues involved in this negligence action, and defendants’ request for the production of or access to his cell phone is reasonably calculated to yield information. As a result, the matter was remitted to the trial court to fashion “an order tailored to [this] controversy that identified the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.” If you’ve ever dealt with a motion to compel that sought the production of or information concerning your client’s or adversary’s cell phone, I’d like to hear about your experiences, just reach out. Until next issue, stay safe… Marc 08/10/22          Lorincz v Castellano Appellate Division, Second Department Plaintiff denied leave to amend his bill of particulars and precluded from offering any evidence at trial regarding injury to his right knee.   At the end of plaintiff’s second deposition, he testified, for the first time, that his right knee was injured in the accident, in addition to his left knee and cervical spine. Plaintiff’s disclosure of this new injury was more than three years after the action was filed and almost two years after the note of issue was filed and the action certified ready for trial. The trial court granted defendants’ motion to preclude plaintiff from offering any evidence at trial regarding his right knee injury and denied plaintiff’s cross-motion for leave to amend his bill of particulars.   The Second Department affirmed the trial court’s decision because plaintiff failed to show special and extraordinary circumstances in seeking leave to amend the bill of particulars five months after the second deposition. The Court held that plaintiff failed to demonstrate that his proposed amendment had merit, rejected his unsworn medical records as lacking in foundation as well as conclusory, and held defendants would be prejudiced by the proposed amendment because it would require defendants to, at a minimum, conduct further discovery and possibly alter their defense strategy.     08/10/22          McBride v City of New York Appellate Division, Second Department Defendant’s motion to compel plaintiff to appear for an IME granted, given the particular circumstances of this case, despite waiving right to an IME via stipulation.   The trial court granted defendant’s motion, pursuant to CPLR § 3124, to compel plaintiff to appear for an independent medical examination (“IME”). The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the trial court. The trial court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised.   The Second Department noted that although defendant waived its right to conduct an IME of plaintiff by failing to identify the examining physician within the time prescribed by a prior order and a stipulation, under the particular circumstances of this case, including the absence of a showing of prejudice to plaintiff, the Court held that defendant was relieved of its waiver (see Arroyo v Lauesta, 140 AD3d 994, 994-995 [2d Dept 2016]; see also Barbosa v Capolarello, 52 AD3d 629 [2d Dept 2008]). Therefore, the trial court providently exercised its discretion in granting defendant’s motion to compel.    08/10/22          Siradze v AVB 1865 Broadway, LLC Appellate Division, Second Department Plaintiff not entitled to order precluding defendants from testifying or offering any evidence at trial where defendants timely and substantially complied with the conditional order and thus, never violated the conditional order.   The trial court granted plaintiff’s motion, pursuant to CPLR § 3126, to preclude defendants from testifying or offering any evidence at trial for failing to comply with, among other things, the conditional order. The Second Department reversed the trial court and denied plaintiff’s motion because the record demonstrates that defendants timely and substantially complied with the conditional order; therefore, the conditional order never became absolute. Since plaintiff failed to show that defendants violated the conditional order, the Court held that the drastic sanction of precluding defendants from testifying or offering any evidence at trial was unwarranted.
Pushing Buttons: The Ups & Downs of Vertical Transportation Law By: Scott D. Kagan [email protected] A recent time-lapse video revealed that sea sponges launch slow motion debris-filled mucus (“snot rockets”) to clean their pores. Recently reported in Current Biology, marine biologists found that certain sponges (e.g., the Caribbean Tube Sponge) expel snot from pores to prevent clogging. The video showed tiny specks of mucus being expelled from the sponge in a sneeze-like movement. However, unlike the human sneeze – which is quick and explosive – the sponge “sneeze” is slow and extends to between 20 and 50 minutes in length. Imagine sneezing for 30 minutes.  You would need a “sponge” to clean up the residue.    

I hope you enjoy the ride. Scott 7/14/2022                  Lloyd v. 797 Broadway Group, LLC, et al. Supreme Court, County of Schenectady Failure to Provide Evidence of Date of Last Inspection Was Fatal to Property Owner’s Motion for Summary Judgment.

Plaintiff alleged a trip and fall incident (the “Incident”) resulting in multiple fractures.  Specifically, she alleged that a metal threshold plate (the “Plate”) in the doorway of an elevator (the “Elevator”) became detached from the floor, presenting a dangerous condition.  Plaintiff fell attempting to enter the Elevator.  Four (4) Defendants separately moved for summary judgment.  Each contended that they owed no duty to Plaintiff.  Plaintiff opposed each motion.   

Motion #1 – Bay State Elevator Company and Flooring Environment, Inc.

Bay State Elevator Company (“Bay State”) contracted with BCI Construction (“BCI”) to supply and install the Elevator.  In addition, Bay State contracted with 797 Broadway Group, LLC – the building owner (“Owner”) – to maintain the Elevator after installation.  Bay State contended that they neither installed the Plate nor maintained the Elevator at the time of the Incident.  Bay State relied upon the Maintenance Agreement which excluded “…hoistway gates, door panels, frames and sills.” 

Flooring Environment, Inc. (“Flooring”) contracted with BCI to supply and install carpet and vinyl flooring in the building, including the hallway where the Elevator was located.  Flooring relied on witness testimony that the installation of the Plate was not within the scope of Flooring’s work on the project, and that Flooring was unaware of who installed the Plate.  Flooring testified it did not install the Plate. 

The Court recognized that Bay State and Flooring each denied installation of the Plate - appearing to conflict with each other and photos presented - revealing questions of fact as to who installed it.  The Court believed the Plate was installed by someone, and that the Plate separated from the floor.  The Court further reasoned that the record contained no evidence that BCI or Owner installed any component of the Elevator.  Thus, the Court denied Bay State and Flooring’s motions for summary judgment as to Plaintiff’s claims.   

Motion #2 – 797 Broadway Group, LLC

An owner has the burden on a motion to show that it maintained the property in a reasonably safe condition and that it did not create or have actual or constructive notice of the alleged dangerous condition.  Firment v. Dick’s Sporting Goods, Inc., 160 A.D.3d 1259 (3d Dep’t 2018).  Owner presented deposition testimony that it did not perform any of the construction work during the renovation project.  In addition, Owner provided evidence of regular inspections without ever observing any dangerous condition related to the Plate.  There were no complaints or concerns about the Plate or Elevator.  Owner contended that it did not create the condition nor have notice of any problem with the Plate or Elevator. 

The Court found that Owner made a prima facie showing that it did not create the dangerous condition or have actual notice of the condition. However, Owner’s outline of its general practice to inspect the premises was insufficient to preclude constructive notice of the alleged dangerous condition. See e.g., Birnbaum v. N.Y. Racing Ass’n, Inc., 57 A.D.3d 598 (2d Dep’t 2008); Edwards v. Wal-Mart Stores, Inc., 243 A.D.2d 803 (3d Dep’t 1997). There was no evidence of when the elevator area was last inspected before the Incident. Moreover, Owner failed to provide detail of what the inspections entailed, and whether they were conducted each visit. Owner’s failure to identify the date of last inspection before the Incident was fatal to its motion. The Court denied Owner’s motion for summary judgment as to Plaintiff’s claims.     

Motion #3 – BCI Construction, Inc.

BCI alleged it had no duty to Plaintiff because its duties arose solely from its contract with Owner, to which Plaintiff was not a party. BCI relied on Espinal v. Melville Snow Contr. Inc., 98 N.Y.2d 136 (2002), that a party to a contract does not owe a duty to a third-party and that none of the Espinal exceptions applied.  Plaintiff did not directly address BCI’s argument regarding Espinal. Instead, Plaintiff argued that BCI (as general contractor) can be held liable for injury due to construction defects on principles derived from products liability law.

The Court held that without countering BCI’s Espinal argument, Plaintiff did not raise questions of fact. BCI’s motion was granted as to Plaintiff’s claims. 

Of import is the Court’s emphasis that a property owner must produce evidence regarding the specific inspection immediately prior to an incident. The Court relied on a long-standing principle that an owner must offer some evidence as to when the area was last inspected relative to an incident.  Arzola v. Boston Props. Ltd. P’ship, 63 A.D.3d 655, 880 N.Y.S.2d 352 (2d Dep’t 2009); see Grossman v. TCR, 142 A.D.3d 854, 37 N.Y.S.3d 514 (1st Dep’t 2016); see also Hagin v. Sears, Roebuck and Co., 61 A.D.3d 1264, 876 N.Y.S.2d 777 (3d Dep’t 2009) (proof of regular inspections and maintenance, including inspection and remedial action just prior to incident, is ordinarily sufficient to satisfy a defendant’s burden of proof). This provides context for the importance of documenting inspections and maintaining proper policies and procedures for inspection of a property.  Failure to do so may be fatal to a property owner’s defense. 

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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