NOTE FROM THE EDITOR:
First and foremost, to our friends and colleagues in southwest Florida, we are thinking about you. The damage left behind by Hurricane Ian is very hard to see and our thoughts and prayers go out to everyone that has been impacted.
As I mentioned last month, I was among the many parents dropping their kids off to college for the first time. While tears were shed, we are now a month into the school year and she is settled in. We visited for parents’ weekend last weekend and even had the chance to see a college football game while we were there. Although Michigan State lost (as did the Bills the following day on Sunday), we had an amazing time taking in Big Ten Football. Instead of the usual sea of red, white and blue I’m used to at a Bills game, last week it was all about the green and white (Go Spartans!).
On the legal front, the legalization of adult-use cannabis in New York State continues to be on the forefront. There are significant challenges for business owners looking to be a part of the new industry due to conflicts between state and federal law. Hurwitz Fine attorneys Joseph Reynolds and Alexis Florczak provide an update, Uncharted Waters: The Cannabis Industry, Lenders, and Title Insurance on this area and what’s ahead.
And on the attorney front, we are very proud of Hurwitz Fine attorney Maxwell Radley on his recent award recognizing his pro bono work. As a firm we value and support pro bono work in the community and are so pleased to see the good work being done by our lawyers.
Take care everyone,
And don’t forget to subscribe to our other publications:
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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]
9/8/22 Williams v. CVS Albany, LLC, et al
United States District Court, Eastern District of New York
Court denied Defendants’ motion for summary judgment because there was a material issue of fact regarding the pool noodle display which allegedly caused her to trip and fall.
Plaintiff commenced an action to recover for injuries she allegedly sustained when she tripped over a pallet and fell at a CVS store. Defendants moved for summary judgment arguing that there was not a dangerous condition but, if there had been, it would have been open and obvious and not inherently dangerous.
Defendants provided photographs and records which they claimed contradicted Plaintiff’s evidence that the pool-noodle display on the pallet over which she fell created a dangerous condition. The Court found the contradicting evidence created a genuine issue of material fact for a jury. Additionally, the Court determined a genuine issue of disputed material fact existed as to whether Defendants violated their duty to warn of a dangerous condition and to maintain the premises in a safe condition.
Defendants denied the existence of a display in the aisle where Plaintiff fell. Additionally, they argued that the alleged pool-noodle display, if it was there, was open and obvious and therefore not inherently dangerous. The Court found a genuine issue existed as to whether the display’s pallet, if in existence, was open and obvious. Plaintiff’s testimony had focused on the box containing the pool noodles and did not address the pallet underneath the box. The Court noted that the question was not whether the box of pool noodles was open and obvious, but whether the pallet underneath it was, and that this was a question for a jury. Additionally, the Court found that, even if the pallet was open and obvious, there was a dispute of material fact as to whether the pallet was inherently dangerous as a matter of law.
9/14/22 Ellison v. The Stop & Shop Supermarket Company LLC
United States District Court, Eastern District of New York
Court granted Defendant’s motion for summary judgment because Plaintiff failed to present admissible evidence that Defendant had notice of the small drop of water which caused her fall.
Plaintiff sued to recover for injuries she sustained when she allegedly slipped and fell on water on the floor while reaching for an item on a shelf in Defendant’s store. After her fall, she paid for her groceries and left the store without reporting the accident to anyone at the store. Defendant filed a motion for summary judgment on the basis that it neither created the condition that caused plaintiff’s fall nor did it have actual or constructive notice of the condition.
The Court found that the record was devoid of any admissible evidence that Defendant had actual notice of water in the area where Plaintiff fell. Additionally, there was no evidence in the record that the water which allegedly caused Plaintiff’s fall was “visible and apparent,” nor was there evidence as to how long it was present on the floor prior to Plaintiff’s fall. As a result, the Court found there were no triable issues of fact which would enable a jury to conclude that Defendant either created the hazardous condition or that Defendant had actual or constructive notice of the alleged condition.
School District & Municipal Liability
By: Anastasia M. McCarthy [email protected]
Dear Readers,8/18/22 Shara v. Maine-Endwell Central School District
U.S. Court of Appeals, Second Circuit
*Case available upon request.
Claim for First Amendment retaliation is rejected by the Second Circuit where District employee and union leader failed to adequately allege that speech in controversy was uttered as a private citizen on a matter of public concern.
Plaintiff, a District school bus driver and union leader, filed a First Amendment retaliation lawsuit after he was placed on leave (and his employment ultimately terminated) following several arguments with other District personnel about the frequency of reporting information related to buses failing safety inspections. The District Court (Northern District) dismissed the action for failure to state a claim, and the driver appealed. On appeal, the Second Circuit affirmed the District Court’s ruling and held that the statements in controversy were made in the driver’s capacity as an employee (as opposed to a private citizen) and were not regarding matters of public concern despite Plaintiff’s role in union leadership.
Public employees who make statements pursuant to their official union duties are not wholly, constitutionally insulated from employer discipline. The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. To make a prima facie case of First Amendment retaliation, plaintiff must establish (1) that the speech or conduct at issue is protected; (2) that the defendant took an adverse action against the plaintiff; and (3) that there is a causal connection between the speech and the adverse action. In determining whether speech is protected, the Court must consider whether the plaintiff was speaking as a private citizen (as opposed to solely as an employee) and whether Plaintiff was speaking on a matter of public concern.
The Second Circuit has, previously, “declined to hold categorically that when a person speaks in his capacity as a union member, he speaks as a private citizen.” Instead, the Court considers a number of factors when determining whether speech was made as an employee or a private citizen, including: whether the speech falls outside official responsibilities; whether a civilian analogue to the employee’s speech exists; or whether speech itself is ordinarily within the scope of the employee’s duties.
Speech is considered related to a matter of public concern, when the expression is fairly relates to any matter of political, social, or other concern to the community. This requires consideration of the content, form, and context of the statement in question. Courts may also consider the speaker’s motive (although this factor is not dispositive) as well as the forum and manner in which the statement is made. Speech does not involve a matter of public concern when it principally focuses on the speaker’s personal issues or, even if it incidentally also touches on a matter of general importance.
Although union-related, protected speech can address matters of public concern, the Second Circuit has previously rejected the contention that all activities undertaken by a union member necessarily become matters of public concern simply because they are collaterally related to a union.
In the Shara case, the allegations (which the Court described as “largely conclusory”) indicated that Shara was acting as a public employee when he engaged in numerous arguments about the District’s inspection reporting policies. Although Plaintiff frequently attempted to cloak his comments as union-related, the Court ultimately found this unavailing—holding that there is no categorical rule that a person speaking in his capacity as a union member is speaking as a private citizen. The Court also held that the Complaint did not allege that Plaintiff was speaking on a matter of public concern because it does not speak, at all, to unsafe conditions caused by the District’s preferred reporting policy or that his own proposal for daily reporting would have improved safety.
Exciting news in the McCarthy household as our oldest child, Josie, started her first year of pre-k just a few weeks ago. Josie was very excited to start wearing a backpack to school (red with “polkie” dots) and to participate in her first pre-k 3 science experiment. So far being in a new classroom has been a huge hit, even if it means having to wake up a little earlier in the morning.
Despite being back-to-school season, it was a short month for decisions involving schools and school districts.
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
It is not looking good for my Hurwitz Fine fantasy football team as I’m currently in last place with a record of 0-2 and thinking of changing my team's name again ... Anyways, GO BILLS!
Regression to the mean for this month’s edition as there are no discovery cases to report on. However, I found another Second Department case, Gentile v Ogden, that cites to the Court of Appeals case of Forman v Henkin regarding social media discovery demands. Longtime readers will recall I first wrote about that case in our February 2018 issue and again in our 2020 issue, which analyzed the Abedin v Osorio case cited within Gentile v Ogden. If you’ve ever dealt with a motion to compel seeking social media information, I’d really like to hear about your experiences and review the demands and responses, so please reach out.
Until next issue, stay safe …
Marc08/10/22 Gentile v Ogden
Appellate Division, Second Department
Plaintiff compelled to comply with discovery demands seeking all relevant social media activity from all of her social media accounts from three years prior to the accident.
As a result of a motor vehicle accident (“MVA”), plaintiff alleged injuries to her neck, back, and right shoulder. She also claimed her injuries prevented her from performing her usual and customary daily activities for not less than 90 of the first 180 days following the MVA. The trial court granted defendants’ motion, pursuant to CPLR §§ 3124 and 3126, to compel plaintiff to comply with discovery demands seeking all relevant social media activity from all of plaintiff’s social media accounts from three years prior to the MVA through the date of the motion.
The Second Department started its analysis by noting that in a personal injury case, “it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each” (Forman v Henkin, 30 NY3d 656, 665 ). Contrary to plaintiff’s contentions, “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information” (id. at 664). “Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found” (id. at 665). “Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed” (id. at 665).
In affirming the trial court’s decision, the Second Department held that defendants demonstrated that plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life (see Forman v Henkin, 30 NY3d at 666-667; Abedin v Osorio, 188 AD3d 764, 766-767 [2d Dept 2020] [defendants established that records from plaintiff’s Facebook, Snapchat, and Instagram accounts were “reasonably likely to yield relevant evidence” regarding the alleged emotional and mental trauma that the plaintiff suffered from as a result of the accident, which allegedly was, in part, evidenced by her social isolation and withdrawal]).
Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
Which came first, the chicken or the egg? A question as old as the chicken (or the egg?). Scientists often ere on the side of the egg, believing that the egg pre-existed the chicken. Amniotic eggs appeared around 340 million years ago. The chicken is believed to have existed a mere 58 thousand years at most. Both can be tasty, but only one came first. Nonetheless, it is now believed that chicken domestication - and subsequent conversion to the chicken nugget – may have arisen due to cereal cultivation. Two new studies outline the potential origin story of chicken domestication and consumption. It is now believed that chicken domestication may have started in rice fields in southeast Asia around 3,500 years ago. My vote is the egg.
It was an otherwise quiet month; however, this month brings us our first escalator case in some time.
I hope you enjoy the ride.
8/31/2022 Boris L. (Anonymous) v. AMC Entm’t Holdings, Inc., et al.Defendants Established Entitlement to Summary Judgment Where Plaintiff Was Sole Proximate Cause of the Injuries.
Appellate Division, Second Department
On April 26, 2016, Plaintiff alleges sustaining injuries when he fell from an escalator at the Defendants’ movie theater. Plaintiff was riding the escalator down in an improper manner. Surveillance footage revealed Plaintiff sitting on the right rail, with his feet up on the left rail. While sitting on the rail, Plaintiff was leaning on the wall, which ended halfway down. Upon ending, Plaintiff fell backward and landed on the floor.
Defendants moved for summary judgment contending that neither the wall nor the escalator were in defective condition and that Plaintiff’s conduct was the sole proximate cause of the accident. Defendants’ motion for summary judgment was denied. Defendants appealed.
“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.” Lezama v, 34-15 Parsons Blvd., LLC, 16 A.D.3d 560, 560 (2d Dep’t 2005) ; see Louis-Juste v. Fisher Park Lane Owner, LLC, 205 A.D.3d 703 (2d Dep’t 2022); Dougherty v. 359 Lewis Ave. Assoc., LLC¸ 191 A.D.3d 763, 764 (2d Dep’t 2021); Zamor v. Dirtbusters Laundromat, Inc., 138 A.D.3d 1114 (2d Dep’t 2016). In this case, Defendants established that the escalator and wall were not in violation of any applicable statutes or regulations. They further established that they maintained the premises in a reasonably safe condition. Plaintiff failed to raise a triable issue of fact as to whether Defendants violated their common law duty to maintain the premises in a reasonably safe condition, as required. See Toes v. Nat’l Amusements, Inc.¸94 A.D.3d 742, 743 (2d Dep’t 2012). Moreover, Plaintiff’s expert affidavit was pure speculation and thus, insufficient to raise issue of fact. Id.
The Second Department further found Plaintiff’s contention, that the motion was premature, unavailing. The Court reasoned that the “mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.” Lopez v. WS Distrib., Inc.¸ 34 A.D.3d 759, 760 (2d Dep’t 2006).
Appeal and motion granted.
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