Premises Pointers - Volume VI, No. 5

Volume VI, No. 5 Friday, October 28, 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.

We start this edition of Premises Pointers with a special legal alert from our Medical Malpractice Team. In an important and precedential decision released on October 7, 2022, New York’s Appellate Division, Fourth Judicial Department, unanimously held that the statute repealing  New York’s Emergency or Disaster Treatment Protection Act (EDTPA), which granted healthcare providers, including individual workers as well as facilities and their executives and administrators, immunity from civil and criminal liability for any injury or death alleged to have been sustained during the Covid-19 pandemic, is to be given prospective, rather than retroactive, effect.

Congratulations to the Hurwitz Fine nursing home litigation and appellate advocacy team of Liz Midgley, Beth Adymy, and Todd Bushway, who successfully argued in Ruth v Elderwood at Amherst that the text of the repeal statute itself, and the legal principles governing statutory interpretation, could only lead to the conclusion that the repeal took effect starting on the date the statute was enacted, and did not negate retroactively the previous time period that immunity was in place.  This decision is a major victory for health care providers and brings a sense of clarity to an issue impacting hundreds, if not thousands, of pending or potential claims across New York State.

For more detailed analysis of this important decision, click here.

We are also excited to welcome Litigation Attorney Rob Caggiano to the general liability defense team. Rob focuses his practice on general litigation matters, including defending personal injury claims arising from motor vehicle accidents, navigating potential high exposure losses, and resolving business/commercial disputes.

I close this cover note on my way home from the national Mansfield Knowledge Sharing Forum in San Francisco. It was a great two days of knowledge sharing on diversity best practices from in-house counsel and the experts at Diversity Lab. Achieving this important diversity certification is a priority of Hurwitz Fine and I was happy to meet and engage with other law firm leaders around the country with similar goals. 


And don’t forget to subscribe to our other publications: Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list. Labor Law Pointers:  Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe. Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe. Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

Retail, Restaurant and Hospitality Happenings Around New York State and Beyond By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]
9/30/22            Andrews v. JCP Groceries, Inc. Appellate Division, Fourth Department Defendant’s motion for summary judgment reversed in part because Defendant’s own evidence raised material issues of fact regarding wet floor on which Plaintiff slipped and fell.   Plaintiff and her husband brought an action to recover for injuries she allegedly sustained when she slipped and fell in Defendant’s supermarket. Defendant filed a motion for summary judgment, which the court granted.   On appeal, the Court found that Defendant met its initial burden by establishing that it did not have actual notice of a dangerous condition, and that it did not create the alleged dangerous condition. Additionally, the Court found that Plaintiffs failed to raise a triable issue of fact regarding both actual notice and the issue of whether Defendant created the condition. Turning next to the issue of constructive notice, the Court noted that Defendant’s evidence failed to establish that its employees performed any security sweeps on the day of the incident, or that anyone inspected the area of the incident prior to Plaintiff's fall. The Court concluded that Defendant’s evidence raised triable issues of fact with regard to whether the wet floor on which Plaintiff fell was both visible and apparent and existed for a sufficient amount of time prior to Plaintiff’s fall for Defendant to discover and remedy it.   9/21/22            Moy v. Target Corporation United States District Court, Southern District of New York Court granted Defendant’s motion for summary judgment because Plaintiff failed to provide evidence that Defendant had constructive notice of the puddle of alfredo sauce on the floor which caused his fall.   Plaintiff sued to recover for injuries he sustained when he allegedly slipped and fell on a puddle of pasta sauce on the floor of an aisle in Defendant’s store. Defendant filed a motion for summary judgment. In opposition, Plaintiff contended Defendant had constructive notice because the puddle of sauce was visible and apparent, and that it existed for a sufficient length of time prior to Plaintiff’s accident for Defendant’s employees to have remedied it.   The Court found that Plaintiff failed to provide any evidence that the puddle was visible and apparent, noting that the evidence in the record indicated the puddle was not visible and apparent since both the pasta sauce and the floor were white. Furthermore, the Court found that Plaintiff failed to provide evidence that the sauce was on the floor for a sufficient amount of time for Defendant to discover and remedy it. Plaintiff argued that circumstantial evidence could allow a jury to infer that the sauce was on the ground for a substantial amount of time, namely that a Target employee was within earshot of the accident location and therefore would have heard the jar of alfredo sauce break. The Court noted that such an inference would be purely speculative, and that the submitted evidence indicated the sauce had only been on the floor for a short time prior to Plaintiff’s accident.
Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected]

Hello Subscribers!   It is hard to believe we are almost halfway done with the Fantasy Football regular season and my team in the Firm’s league is battling adversity and injuries (and is not great). Hopefully, your team is doing better than mine, but if you want to compare rosters or talk trades, just reach out and I’ll be happy to share my thoughts. At least the Bills look like the team everyone locally hopes they are, so GO BILLS!   This month, I report on a variety of discovery cases, including the Bent-Anderson v Singh decision, which highlights a tension in CPLR § 3101’s treatment of attorney work product (which is not discoverable) and trial preparation materials (which may be disclosed only on a showing that the party seeking discovery has a substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means). Attorney work product under CPLR § 3101(c) is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy. Materials or documents that could have been prepared by a layperson do not fall within the work product exception. If you’ve ever dealt with the attorney work product privilege and an opposing motion to compel materials or documents prepared by a non-attorney, please reach out and share your experiences.   Until next issue, stay safe …   Marc   08/21/22          Steele v Samaritan Found, Inc. Appellate Division, Second Department Defendants not entitled to striking of plaintiff’s complaint for failure to provide court-ordered discovery.   The trial court granted defendant’s motion, pursuant to CPLR § 3126, to strike plaintiff’s complaint for failing to provide court-ordered discovery and directed dismissal of this slip and fall action. The Second Department reversed the trial court and held that defendants failed to attest that any good faith efforts had been performed to secure the outstanding trial authorizations prior to engaging in motion practice, and the record indicates that, in fact, defendants failed to undertake any such efforts, thereby warranting denial of their motion to strike plaintiff’s complaint for that reason alone.   The Court additionally held that the extreme sanction imposed by the trial court was not warranted because nothing in the record supports a conclusion that plaintiff’s delay in providing the trial authorizations was the result of willful and contumacious conduct. Moreover, plaintiff provided the authorizations to defendants, albeit tardy, in advance of trial. Accordingly, the trial court improvidently exercised its discretion by granting that branch of defendants’ motion, which was, in effect, pursuant to CPLR § 3126 to strike the complaint. 10/05/22          Hamed v Alas Realty Corp. Appellate Division, Second Department Defendants’ motion to compel plaintiff to produce authorizations enabling them to obtain medical records related to her pre-existing ankle injury held material and necessary to the defense of this slip and fall action.   Plaintiff allegedly was injured after she slipped and fell in a building owned and operated by defendants. The trial court denied defendants’ motion, pursuant to CPLR § 3124, to compel plaintiff to comply with discovery demands seeking records related to her pre-existing injuries to her right ankle.   The Second Department revered the trial court’s decision in only conditionally granting that branch of defendants’ motion to compel plaintiff to provide medical records pertaining to her pre-existing injury to her right ankle only in the event she “claims any effects on her gait or mobility as a result of the incident”. The Court held defendants established that the records sought are material and necessary to the defense of this action under CPLR§ 3101(a)(1).   10/12/22          Bent-Anderson v Singh Appellate Division, Second Department Defendant not entitled to the notes and reports prepared by the non-attorney representative who observed the IMEs, despite such material not constituting attorney work product, as defendant failed to show “substantial need” for said material.   The trial court denied defendant’s motion to compel plaintiff to produce notes and reports made by a representative of an IME company who attended plaintiff’s IMEs and granted plaintiff’s motion to quash a subpoena duces tecum and a subpoena ad testificandum seeking discovery from the attending IME representative and granted plaintiff’s motion for a protective order regarding certain disclosure sought by defendant relating to the IME representative.   The Second Department held that plaintiffs, as the parties asserting the attorney work product privilege, failed to meet their burden of establishing that the subject notes and reports prepared by the non-attorney representative who observed the IMEs constituted attorney work product. However, the Court affirmed the trial court’s decision, finding the subject notes and reports are immune from discovery pursuant to the conditional privilege of materials prepared in anticipation of litigation or for trial.   CPLR § 3101(d)(2) provides, in relevant part, that “materials … prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means”. Here, the Court held that defendant failed to show any such “substantial need” and that the subsequent equivalent cannot be obtained by other means.

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

There is nothing more adorable than a kitten rolling in catnip (do an internet search).  What if the kitten’s frenzy also provided a human benefit?  Crushed up catnip leaves emit a compound called iridoids.  Iridoids produced by plants act as a defense mechanism, preventing against infection or infestation against leaf eaters.  Specifically, iridoids in catnip prevent insects from eating the leaves.  A research report in iScience revealed that higher emissions of iridoids encourage cats to roll in the plant.  Thus, the cat coats itself in a natural bug repellant.  As cats crush the leaves, the plant emits even more iridoids, thereby preventing more insects.  As the cat rolls in the crushed catnip, it is essentially rolling in bug spray.  Next time you decide to go hiking, bring your cat and a bag of catnip to prevent ticks.      

I hope you enjoy the ride. 


10/6/2022                  Sigall v. American Multi-Cinema, Inc., et ano. Supreme Court, New York County Escalator Maintenance Company Entitled to Summary Judgment. Plaintiff alleges that she suffered injuries after slipping and falling on a “watery substance puddle and M&M’s” on August 7, 2017 (the “Incident”).  The Incident occurred on a platform – the non-moving part – of the escalator (the “Escalator”) at an AMC movie theater.  Defendant, Excel Elevator & Escalator Corp. (“Excel”) moved for summary judgment.  Excel claimed it did not create any defect or dangerous condition concerning the Escalator.  It further alleged it did not have constructive notice of any alleged dangerous condition.  Plaintiff opposed, relying on the testimony of Excel’s witness.  Excel’s witness testified that the Escalator was maintained (one per month), which included grease and/or lubricant to ensure the Escalator was in proper working order.  Plaintiff contended that since Excel regularly maintained the Escalator with grease, it corroborated her testimony that she fell on a slippery substance on the Escalator.  Moreover, she contended that Excel could not affirmatively state it did not apply the grease to the Escalator where she fell. 

The Court acknowledged Plaintiff’s Bill of Particulars (“BOP”).  The BOP alleged that she fell because of a “puddle of sticky liquid on the floor,” which was not a brown/black opaque substance, but a clear watery puddle.  Evidence from Excel revealed that the grease applied to the Escalator was a thick, dark brown/black opaque substance.  Moreover, testimony revealed that grease would never be applied to the top plate/platform where the Incident occurred.  In opposition, Plaintiff failed to submit expert evidence to combat Excel’s claims of the grease’s color and viscosity.  In the absence of admissible evidence and a non-speculative basis for liability, Excel’s motion for summary judgment was granted. 

Excel also sought to dismiss AMC’s crossclaim for contractual indemnification, asserting that the contract excludes liability when an “accident did not result from, or are in connection with…” Excel’s performance of services.  AMC (like Plaintiff) failed to provide an expert affidavit or rebuttal of Excel’s undisputed statements that the grease used for the Escalator was a dark, brown/black opaque substance , and not a watery or sticky substance.  As such, there was no liability for contractual indemnification.  Last Excel sought to dismiss AMC’s common law indemnification claim because there was no evidence of improper maintenance nor a showing that Excel created or exacerbated any condition.  AMC failed to refute this showing.    

Motion Granted.     

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]
Read Past Editions of Premises Pointers
Hurwitz Fine P.C.   Buffalo The Liberty Building, 424 Main Street, Suite 1300, Buffalo, NY 14202 Phone: 716-849-8900, Fax: 716-855-0874 Long Island 575 Broad Hollow Rd., Melville, NY 11747 Phone: 631-465-0700, Fax: 631-465-0313 Albany 518-641-0398 Additional Offices Albion | Amherst | Connecticut | Niagara Falls | Rochester | Utica   Hurwitz Fine P.C. is a corporate and defense litigation law firm providing legal services throughout the State of New York and Connecticut. © 2022, Hurwitz Fine P.C. All Rights Reserved In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

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