Premises Pointers - Volume VI, No. 6

Volume VI, No. 6 Tuesday, November 22, 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 snowy Buffalo this Thanksgiving week! By now, I am sure most have heard about our monumental snow storm that dropped 7 feet in Orchard Park, NY, where the Buffalo Bills play (hence the game being moved to Detroit). I am happy to report that despite the snow, it was business as usual here at the firm with everyone from our Buffalo office working from home on Friday and Monday. Today, as I look out on Lake Erie from my office window, you would never know anything happened.   In firm news, this month I am excited to welcome attorney Robert P. Louttit who joins our Melville, NY office in our insurance coverage group. Rob brings nearly 20 years of experience to Hurwitz Fine handling a range of litigated and non-litigated insurance coverage matters for commercial and personal lines insurers; insurance coverage appellate work; resolving document and testimony subpoenas served to clients; advising clients on insurance coverage; and issuing opinions as well as disclaimer letters and reservation of right letters to the client's insured.  I am also pleased to report that Best Lawyers® and U.S. News & World Report have announced the release of the 2023 U.S. News – Best Lawyers® "Best Law Firms" rankings. Hurwitz Fine is proud to have Buffalo Metropolitan Tier One rankings in eight practice areas. Tier One practice areas include:

This is exciting news for the firm and a recognition of all our firm attorneys and employees who are dedicated to providing the very best legal services to our clients.   In closing, Happy Thanksgiving to you and your families. Wishing everyone a lovely holiday. Enjoy the week!


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]
11/09/22          Eiklor v. Lowe’s Home Centers United States District Court, Eastern District of New York Discovery battle in retail case: Court denied three of four branches of Plaintiff’s motion to compel because Plaintiff failed to demonstrate relevancy of the demands to the issues in the lawsuit.   Plaintiff sued to recover for injuries he sustained when he was struck on the head by a plywood sign while shopping at Defendant’s store. Plaintiff filed a motion to compel certain documents and responses related to Plaintiff’s Fifth Request for Production, which the Court granted in part and denied in part.   Issue #1 – Demand for supplementary discovery answers from Defendant The Court looked at Defendant’s objections to Plaintiff’s requests. Plaintiff argued that Defendant asserted boilerplate language in its responses and objections. Defendant countered that, while it used consistent language in its responses, it tailored every response or objection to each specific request. Upon review of Defendant’s responses, the Court determined that Defendant had stated specific objections and responses to each request, produced responsive documents, and provided a privilege log for withheld documents. As such, the Court concluded Defendant’s objections did not constitute a refusal to participate in discovery or a paradigm of discovery abuse and denied the portion of Plaintiff’s motion seeking an order directing Defendant to provide supplemental explanatory responses to Plaintiff’s Fifth Request for Production.   Issue #2 – Daily inspection reports Plaintiff demanded copies of daily inspection and safety reports of Defendant’s hardware department where the incident occurred for one month prior to and one month following the incident. Defendant objected to the request on the basis that the two-month time period made the request overbroad, and proceeded to produce the requested reports for a one-week period leading up to and including the date of the incident. The daily safety review consists of an employee completing tasks according to a checklist of items and indicating whether each task was completed and whether any corrective action was taken. As such, the Court determined the reports to be responsive and relevant with regard to determining Defendant’s liability. New York courts have held that reports subsequent to an incident are generally irrelevant with regard to issues of notice and negligence. Plaintiff did not provide an explanation or demonstrate how two months of reports would provide information relevant to the claims and defenses in the case. Plaintiff argued that the documents produced by Defendant were heavily redacted, to which Defendant contended it had produced all unredacted reports of the hardware department and only redacted portions related to other departments. The Court found that Plaintiff failed to demonstrate why he is entitled to reports from other departments and, as such, denied the portion of Plaintiff’s motion seeking to compel additional information with regard to the daily inspection and safety reports.   Issue #3 – E-mails regarding collection of video surveillance Plaintiff requested communications between Defendant’s Asset Protection Safety Manager and his superiors with respect to the initial investigation and his collection of video surveillance. Defendant identified four responsive emails it withheld under attorney-client and work product privileges, asserting the emails involved an investigation triggered in anticipation of litigation rather than during the course of doing business. Defendant accompanied its response with a privilege log for the withheld emails. Plaintiff argued the emails were dual purpose, and that Defendant’s employees collect accident-related video as part of the regular course of business. Courts have held that the possibility that litigation could result is not sufficient to trigger protection under the work product doctrine, and that reports generated for investigation and evaluation of claims are part of the regular course of business. The Court noted that Defendant did not provide specific and competent evidence demonstrating that the subject emails were actually created in anticipation of litigation, nor did it point to a definite shift from acting in its ordinary course of business to acting in anticipation of litigation. As a result, the Court found that Defendant failed to meet its burden and granted the branch of Plaintiff’s motion seeking to compel the withheld emails.   Issue #4 – Surveillance video from days other than that date of incident Plaintiff requested video footage demonstrating the view of the surveillance camera which observes the aisle in Defendant’s store where the incident occurred to see what portion of the aisle was visible on video surveillance on the date of the incident. Defendant objected to the request, stating it had already produced video footage from the date of the incident and arguing that newly obtained surveillance video is not relevant. The Court found that Plaintiff had not demonstrated how new video footage is relevant to the incident and denied the branch of Plaintiff’s motion seeking to compel current video surveillance footage.   10/21/22          S.H., Sona Abdullaeva v. The TJX Companies, Inc. United States District Court, Eastern District Defendant’s motion for protective order to delay production of video until after the plaintiff is deposed denied because Defendant failed to provide evidencing showing good cause for the granting of the motion.   Plaintiff S.H., a minor, and her mother sued to recover for injuries S.H. sustained in an incident at Defendant’s store. Defendant has video of the incident but sought a protective order delaying production of that video until after S.H.’s father, a non-party witness, is deposed.   Defendant argued there were “significant discrepancies” between the video and Plaintiffs’ description of the incident. Defendant cited eleven cases in which identical protective orders were issued, and in nine of those cases, Defendant TJX’s counsel was counsel of record for the defendant. The Court noticed this and concluded the motions for protective orders are a reflexive litigation strategy used by the defense to obtain leverage and advantage. Case law has established that the Federal Rules of Civil Procedure do not allow for the withholding of basic discoverable material. As the party seeking relief, Defendant bears the burden of showing good cause for the protective order to be granted. Defendant alleged either S.H. or her mother falsified their account of the incident, but provided no evidence to support that allegation, nor did Defendant demonstrate any connection to S.H.’s father’s testimony. The Court denied Defendant’s motion, finding it failed to meet its burden.     10/13/22          Lopiano v. Costco Wholesale Corporation et al. United States District Court, D. Connecticut Plaintiff’s motion to remand granted because Defendants failed to meet their burden of proof with regard to the amount in controversy.   Plaintiff brought an action to recover for injuries he allegedly sustained when an elevator he entered on Defendants’ premises malfunctioned. Defendants removed the action to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §1336 and 28 U.S.C. §1446. Plaintiff filed a motion to remand the action to Superior Court, arguing that Defendants failed to meet their burden of proving that the damages exceed $75,000.   Defendants, as the removing party, must establish subject matter jurisdiction. The standard laid out by case law is that the jurisdictional threshold amount is established by the face of the complaint and the actual dollar amount claimed. Case law has established that the removing party must support its claims with competent proof by a preponderance of the evidence. Here, Defendants argue that the allegations contained in the Complaint reflect that Plaintiff is claiming serious and disabling injuries and, as such, it appears that Plaintiff is claiming he sustained injuries in excess of $75,000. Defendants did not submit any evidence to support their assertion regarding the amount in controversy.   The Court determined that the amount in controversy was not clear from the Complaint, and Plaintiff characterized his damages simply as “greater than” $2,500. The Court found that Defendants failed to meet their burden and granted Plaintiff’s motion to remand.
School District & Municipal Liability By: Anastasia M. McCarthy [email protected]  
Dear Readers,   The McCarthys made it through the recent storm unscathed—although we are very close to the Buffalo Niagara International Airport (which received record snowfall), our neighborhood only received about a foot (maybe a foot and a half) of snow over the last several days. Still, we all appreciated the opportunity to hunker down at home with hot cocoa and homemade chicken noodle soup.   This month’s column reflects many of the common threads in School District defense—the chipping away of primary assumption of risk; the leniency extended to late municipal claims; the statutory interpretations of New York’s mandated reporter that have arisen from Child Victims Act lawsuits; and the ongoing examination of a District’s duty to its students off school grounds. As always, we are happy to discuss these cases, or your own cases, with you any time.   November 2, 2022      Annitto et al. v. Smithtown Central School District Supreme Court, Appellate Division, Second Department A primary assumption of risk defense fails where the injury was caused off-season, during a conditioning exercise.   This case involved a negligent supervision claim by the mother of a high school football player against the District.  Infant Plaintiff was injured off-season, during a weight-training test when he lost control of a 295-pound bar and smashed his fingers. Specifically, the Infant Plaintiff was a sophomore, varsity football player performing a squat lift in the high school weight room as part of an off-season weight training test.  The test was supervised by the high school football coach. During his deposition, the coach testified that he told the players that they must have a spotter whenever lifting weights; that the role of a spotter during a squat lift was to stand next to the lifter, with a hand in front and hand behind the lifter to ensure that the lifter did not fall forward or backward.  At the time of the accident, the spotter assigned to the plaintiff was another student (a graduating senior who was also on the football team).  During his 50-h exam, Infant Plaintiff testified that he was lifting 295 pounds but on his third repetition he could no longer hold the weight and lost control of the bar. The weight bar then fell backward and landed on a support rack, crushing one of his fingers.   At the conclusion of discovery, the School District moved for summary judgment, arguing that the action was barred by the doctrine of primary assumption of risk. The trial court granted the motion; the Appellate Division reversed and reinstated the Complaint finding that the primary assumption of risk doctrine did not negate the District’s duty to safeguard the Infant Plaintiff from risks arising from the weight-lifting test. Indeed, the Appellate Division reasoned that the Infant Plaintiff was a participant in the sport of football, not the sport of weightlifting.  “Thus,  while the School District was absolved of any duty to protect the infant plaintiff from the risks he assumed, the only risks he assumed were those inherent in the sport of football.” Ultimately, the Court determined that the risk of losing control of a 295-pound bar was not a risk inherent to the sport of football and therefore not a risk the Infant Plaintiff could have assumed when he joined the Varsity football team.   The Appellate Division went on to state that, even if it were to apply the doctrine of primary assumption of risk, it would still deny the District’s summary judgment motion because the District had not eliminated a triable issue of fact as to whether the risk of injury was unreasonably increased by the spotting of the student assistant. The District did not offer any testimony or other evidence from the spotter regarding the spotter’s experience or how much attention he was devoting to the task.  The Appellate Division also rejected the District’s argument that the incident occurred so quickly that no greater level of supervision would have prevented it from occurring.  The District pointed to the Infant Plaintiff’s testimony that the incident occurred quickly but did not present any other evidence showing how much time passed between when the Plaintiff began to struggle and when he smashed his finger.  The District did not, therefore, eliminate triable issues of fact about whether the spotter had sufficient time to assist but negligently failed to act.     October 27, 2022        Matter of Jane Doe v. Elmira City School District Supreme Court, Appellate Division, Third Department Legal guardians of student with developmental disabilities permitted to serve late notice of claim asserting additional allegations of sexual assault.   This case involved a petition to serve a late notice of claim.  The Petitioners were the grandparents of a student with developmental disabilities who was allegedly raped by another student, on multiple occasions, on school property.   Petitioners served a notice of claim in October 2019.  In July 2020, the Infant Claimant testified at a 50-h examination that she was sexually assaulted in May and June of 2019 as well as in June and September of 2019—the Notice of Claim referenced only the assaults in May and June.  In August of 2020, after the 50-h examination, the Petitioners moved for leave to serve a late notice of claim with respect to the June and September incidents.  The Supreme Court granted the motion and the District appealed.   The Third Department upheld the trial court’s ruling on the motion. The record reflected that a school administrator was personally aware of the October 2019 incident and that the original notice of claim alleged that the incidents occurred in or about May and June of 2019.  Therefore, even if the notice of claim did not specifically allege an incident in September of 2019, the notice disclosed at least some of the underlying acts constituting the claim within a reasonable amount of time of their occurrences. The Third Department also determined that the Petitioners established a reasonable excuse for their delay, pointing to the Infant Petitioner’s developmental limitations as well as to bullying behavior and threats she was subjected to at school.  Finally, the Court held that the District failed to establish that it was substantially prejudiced by the delayed reporting (again, pointing to the fact that an administrator did have personal knowledge of the underlying facts).     October 5, 2022          Hanson v. Hicksville Union Free School District Supreme Court, Appellate Division, Second Department Child Victims Act Plaintiff failed to state causes of action arising out of Social Services Law § 413 because school district employee accused of abuse was not a person legally responsible for the care of the Plaintiff and because other allegations of abuse by family member pre-dated passage of the State’s Mandated Reporter law.   A former student of the District brought a lawsuit seeking punitive damages from the District on the grounds that the District failed to report cases of suspected child abuse as required by Social Services Law § 413. The trial court denied the District’s motion to dismiss for failure to state a cause of action and the District appealed.  On appeal, the Second Department reversed, holding (1) that a former teacher was not a “person” legally responsible for the former student’s care and (2) that the former student failed to state a cause of action against the District.   Plaintiff alleged that between 1972 and 1977, Plaintiff was sexually abused by her Junior High School guidance counselor (who was also an English teacher at the school).  According to the Complaint, the counselor weaponized information that the Plaintiff had also been sexually abused by a family member in order to commit his own acts of sexual abuse on the Plaintiff. The abuse continued beyond Junior High into High School and was known to school administrators, teachers, and staff.   In the subsequent Child Victims Act suit, Plaintiff alleged, among other things, (1) that the District breached its statutory duty under the social services law to report the suspected sexual abuse by the guidance counselor and (2) that both the guidance counselor and the District further breached their statutory duties to report the sexual abuse committed by the Plaintiff’s family member outside of school grounds. Plaintiff sought compensatory and punitive damages resulting from both breaches.   Social Services Law § 413 (which is known generally as the “Mandated Reporter” law) went into effect on September 1, 1973.  It requires that certain school officials “report or cause a report to be made…when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child.”  Failure to comply with the law may subject a Mandated Reporter to civil liability. An “abused child” is statutorily defined as “a child under eighteen years of age…harmed by a parent or other person legally responsible for his [or her] care.” (Citing the Family Court Act § 1012(e)).   In reversing the trial court’s ruling, the Appellate Division reasoned that, with respect to the claim that the District failed to report abuse by the guidance counselor, that claim was not subject to the liability flowing from the Social Services law because the guidance counselor was not a person legally responsible for the plaintiff’s care. The Appellate Division also dismissed the claim that the District failed to report abuse by Plaintiff’s family member because the Complaint did not contain any allegations that the District received information about that abuse after the passage of the Mandated Reporter law in September of 1973. Plaintiff, moreover, conceded that punitive damages are not available against the District.   October 5, 2022          Boyle v. Brewster Central School District et al. Supreme Court, Appellate Division, Second Department District and its employees not liable for suicide of high school student where death took place off campus; where District did not assume a separate, special duty of care; or release the decedent into a foreseeably hazardous condition created by the Defendants.   This case involved a wrongful death lawsuit by the Estate of a 17-year-old high school student who committed suicide in his home after he was discharged and suspended from school. The Complaint set forth claims for negligence, breach of in loco parentis duty, respondeat superior, negligent infliction of emotional distress, and wrongful death. Among other things, Plaintiff alleged that the Decedent committed suicide as a result of the Defendants’ failure to supervise students, to address bullying endured by the Decedent, and because the Defendants improperly suspended the Decedent.    The Second Department held that the Defendants were entitled to judgment as a matter of law because the Defendants demonstrated that the Decedent committed suicide when he was at home and no longer in the custody or control of the District or any District employee; that the Defendants did not release the decedent into a foreseeably hazardous situation they had created; and that the Defendants did not assume a separate special duty of care to protect the decedent or to guard against him committing suicide.  Moreover, the Defendants lacked sufficient notice of the possibility that Decedent would commit suicide and therefore could  not be liable for such an unanticipated event.
Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected]

Hello Subscribers!   After 5+ feet of snow fell at the Bills’ stadium this past weekend, I guess it’s fair to say that winter is here. I don’t know when the NFL became afraid of mother nature, but hopefully, all future snowy games will be played in Orchard Park as I think those weather games are much more fun to watch…go BILLS!   This month, I report on a several discovery cases involving various sanctions. Pursuant to CPLR § 3126, a court may issue an order “prohibiting [a] disobedient party … from producing in evidence … items of testimony” or “striking out pleadings” as a sanction against a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. Before a court involves the drastic remedy of striking a pleading or the alternative remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures. While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR § 3126 is a matter generally left to the discretion of the trial court, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court.   If you’ve ever dealt with a challenging discovery motion and/or one involving sanctions, I’d like to hear about your experiences, so please reach out.   Until next issue, stay safe …   Marc     10/19/22          Follors v TI Ozone Park Stor., LLC Appellate Division, Second Department Plaintiff not entitled to vacatur of prior order granting defendant’s unopposed CPLR § 3126 motion to dismiss the complaint for failure to comply with discovery demands.   Plaintiff allegedly tripped and fell on an uneven sidewalk flag in front of defendant’s premises. Defendant answered the complaint and served discovery demands. Plaintiff’s counsel moved to be relieved as counsel for plaintiff. Defendant then moved to dismiss the complaint for not complying with discovery demands, which plaintiff did not oppose. Plaintiff again moved to be relieved as counsel for plaintiff.   The trial court denied plaintiff’s motion, pursuant to CPLR § 5015(a)(1) to vacate a prior order granting defendant’s unopposed CPLR § 3126’s motion to dismiss the complaint for failure to comply with discovery demands, and thereupon, for leave to extend her time to submit opposition papers. Plaintiff argued on appeal that she had a reasonable excuse for her default in opposing defendant’s motion to dismiss because her attorneys believed that their second motion had the effect of automatically staying all proceedings in the action, although the order to show cause by which that motion was filed did not contain a provision staying the proceedings.   The Second Department affirmed the trial court’s determination that, even if plaintiff had demonstrated a reasonable excuse for her default in opposing defendant’s motion, she failed to establish that she had a potentially meritorious opposition to defendant’s motion. Defendant waited for over 17 months for plaintiff to comply with discovery demands or respond in any meaningful way. The Court also noted that while plaintiff asserts in a conclusory manner that her failure to comply with the discovery demands was not willful and contumacious, she has not offered any explanation as to why she did not comply with or respond to said demands. The Court therefore held that plaintiff failed to demonstrate that she had a potentially meritorious opposition to that portion of defendant’s motion to dismiss the complaint.     10/26/22          Galarza v 25 Hope St. Assoc., LLC Appellate Division, Second Department Defendants precluded from testifying at trial or offering opposition to a motion for summary judgment after failing to appear for court-ordered depositions.   Plaintiff allegedly was injured while performing construction work on property owned by Hope Street. The trial court granted plaintiff’s motion, pursuant to CPLR § 3126, to strike defendants’ separate answers to the extent of precluding defendants from testifying at trial or offering opposition to a motion for summary judgment.   The Second Department affirmed the trial court’s conclusion that Hope Street’s conduct in failing to comply with the trial court’s repeated directives to appear for a deposition was willful and contumacious. In support of his motion, plaintiff asserted that he was ready for depositions on the dates set forth in three of the court’s orders, as well as a subsequently adjourned date, but defendants were not available or ready on any of those dates. In opposition, Hope Street did not deny these allegations, nor offer any explanation or excuse for its failure to proceed with its deposition. The willful and contumacious character of Hope Street’s actions can be inferred from its repeated failure to proceed with the deposition, in violation of three court orders, and the absence of any proffered excuse for that failure.   Hope Street’s contention that plaintiff’s motion should have been denied based on plaintiff’s alleged failure to file an affirmation of good faith was not raised in opposition to the motion. Since this contention is improperly raised for the first time on appeal, it is not properly before the Court.     11/02/22          Castillo v Charles Appellate Division, Second Department Plaintiff’s failure to appear for a continued deposition by a certain date and to comply with other discovery orders supported an inference of willful and contumacious behavior warranting discovery sanctions, but not of striking of the complaint.   The trial court granted defendant’s motion to strike the complaint based on plaintiff’s failure to comply with various discovery orders. The trial court subsequently denied plaintiff’s motion for leave to reargue her opposition to defendant’s motion to strike the complaint.   The Second Department held the record demonstrated that plaintiff violated court orders directing her to appear for a continued deposition by a certain date, to provide a full set of copies of photographs that she referenced during her first deposition or provide an affidavit as to the nonexistence of those photographs, and to execute authorizations for certain medical providers, a pattern the Court held supports an inference of willful and contumacious behavior.   However, the Court found that, under the circumstances, the striking of the complaint was too drastic a remedy, despite finding that plaintiff’s procedural objection to defendant’s motion was without merit. Accordingly, the motion should have been granted only to the extent of (1) precluding plaintiff from using at trial any photograph that was not produced in response to defendant’s discovery demands, (2) directing plaintiff to provide defendant with medical authorizations, and (3) directing plaintiff’s counsel to personally pay the sum of $3,000 as a sanction to defendant.     11/15/22          Ceresa v City of New York Appellate Division, First Department Defendant not yet entitled to summary judgment dismissing the complaint because there was an evidentiary basis to conclude that additional discovery was warranted.   The trial court denied defendant The Hallen Construction Co. Inc.’s motion for summary judgment dismissing the complaint and all crossclaims against it. The First Department unanimously affirmed because there was an evidentiary basis to conclude that additional discovery was warranted. The Court held that plaintiffs and codefendants are entitled to discovery as to whether the work Hallen performed in the area was, in fact, on the opposite side of the street and at least 30 feet away from the pothole that caused the accident, as Hallen contends. Moreover, the trial court granted Hallen leave to file a motion seeking the same relief following the completion of discovery.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law By: Scott D. Kagan [email protected]
Harlequin Frogs (found in Central and South America) have been called the “Jewel of the Neotropics” for their diverse range of colors.  This specific genus contains over 100 colored species.  However, in the 1980s, the Harlequin Frog was struck by a skin-eating fungus that spread across the globe.  Susceptible to the disease, the world’s Harlequin Frog population exponentially decreased, with 70% of species now extinct or critically endangered.  In Biological Conservation, researchers reported a discovery indicating that much of the extinct population have been re-discovered.  However, scientists and researchers understand the challenges ahead.  Specifically, the fungus that caused the decline of the Harlequin Frog, is still present in Central and South America.  In addition, climate change and habitat loss present new challenges to the survival of these tiny and colorful amphibians.  Nonetheless, researchers are hopeful that someday the Harlequin Frogs will return to the wild in abundance despite these challenges.    I hope you enjoy the ride.    Scott   11/3/2022                  Jimenez v. PR Grand Hotel Owner Co. LLC, et al. Appellate Division, First Department Conflicting testimony raised questions of fact requiring denial of summary judgment.   Plaintiff filed a motion for summary judgment on liability and to strike Defendant’s comparative negligence affirmative defense.  The Supreme Court denied Plaintiff’s motion (questions of fact) and Plaintiff appealed.    Plaintiff testified to receiving prior injuries due to problems with glass elevator doors (the “Doors”) on an elevator (the “Elevator”).  Plaintiff’s testimony was contradicted by testimony of Defendant, PR Grand Hotel Owner Co., LLC.  Moreover, the majority of records pertaining to the Elevator, did not reference work performed (or to be performed) on the Doors, which raised questions of fact regarding the elevator service provider’s notice of any purported problems with the Doors.  General awareness that a dangerous condition might be present is legally insufficient to constitute notice of the particular condition that causes a plaintiff’s injury.  See Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 (1994).       Here, the Court reviewed the conflicting testimony and found that questions of fact existed as to what effect was had by hotel employees’ pushing the Doors opened/closed, as well as directly pushing on the electronic door sensors located on the edge of the Doors.  See Morris v. Ten Thirty One Productions LLC, 203 A.D.3d 629, 630 (1st Dep’t 2022).  The Court further reasoned that conflicting expert testimony created additional questions of fact regarding res ipsa loquitur.  See Ezzard v. One E. Riv. Place Realty Co., LLC, 129 A.D.3d 159, 162-63 (1st Dep’t 2015).  The denial was predicated on conflicting lay and expert witness testimony, which was sufficient to raise triable issues of fact requiring denial of Plaintiff’s motion.    Order Affirmed.           11/16/2022                  Alicea v. Medjugorje Realty, LLC, et al. Appellate Division, Second Department Review of elevator maintenance contract required denial of summary judgment. On June 1, 2007, the plaintiffs Marco Antonio Alicea and Jeffrey Drummond (“Plaintiffs”) were allegedly injured in an elevator accident on the premises (“Premises”) owned by Medjugorje Realty, LLC, and MGA Realty, LLC (collectively, “Owner”). Prior to the accident, Owner entered a maintenance and service contract (the “Maintenance Contract”) with Imperial Elevator Corporation (“Imperial”), in which Imperial agreed to maintain, inspect, and service the subject elevator (the “Elevator”), including the motor room on the roof of the Premises.  New Cingular Wireless PCS, LLC, Bechtel Corporation, and Bechtel Construction Operations Incorporated (collectively, “Bechtel”), owned and managed telecommunications equipment installed on the roof of the Premises.  In 2003, Bechtel contracted with Odyssia Global Communications (“Odyssia”) to perform project management services in connection with the installation of communications equipment at the Premises. Odyssia in turn contracted with Preferred Builders, Inc” (“Preferred”) to perform the installation work. In 2005, Bechtel contracted with J.A. Electric, Inc., and J.A. Lee Construction, Inc. (collectively, “J.A.”) for the installation of certain upgraded equipment at the Premises. Plaintiffs alleged that Bechtel and J.A. were negligent in the installation of the telecommunications equipment in that they created an abundance of brick dust in the motor room which contaminated the operating mechanism for the Elevator.  Plaintiffs further alleged that Owner and Imperial were negligent in failing to remove, clean, or otherwise remedy the condition, and in failing to maintain the Elevator in a reasonably safe working condition. Owner, Imperial, Bechtel, and J.A. asserted cross claims against each other, inter alia, for contribution and indemnification. Bechtel commenced a third-party action against Odyssia, Odyssia commenced a fourth-party action against Preferred, and Imperial commenced a fifth-party action against Odyssia and Preferred, all seeking contribution and indemnification. In a flurry of summary judgment motions, Imperial, Bechtel, and J.A. each moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them.  Odyssia moved, inter alia, for summary judgment dismissing the third-party complaint, and the fifth-party complaint insofar as asserted against it.  Preferred moved, inter alia, for summary judgment dismissing the fourth-party complaint, and the fifth-party complaint insofar as asserted against it.  By order dated September 11, 2018, the Supreme Court: (1) denied Imperial's motion; (2) granted those branches of the motions of Odyssia and Preferred which were for summary judgment dismissing the fifth-party complaint insofar as asserted against each of them; (3)  granted those branches of the motions of Bechtel and J.A., dismissing Imperial's cross claims against each of them; (4) denied those branches of Bechtel’s motion for summary judgment on their cross claims against J.A., and their third-party claims against Odyssia, for contractual indemnification with respect to attorneys' fees and costs incurred in defending this action; (5) granted that branch of the J.A.’s motion for summary judgment dismissing Bechtel’s cross claims for such indemnification; and (6) granted that branch of Odyssia's motion for summary judgment dismissing Bechtel’s third-party claims for such indemnification.  Several appeals were taken.  The Court first addressed Imperial’s appeal.  The Court affirmed the Supreme Court’s Decision.  In doing so, a review of the Maintenance Contract was required.  The Maintenance Contact required Imperial to “maintain, inspect and service” the Elevator, to use “reasonable care to maintain the [E]levator in proper and safe operating condition,” and to keep the Elevator in reasonable working order. The Maintenance Contract further required Imperial to “regularly and systematically examine, clean, lubricate and furnish lubricants for the machine, motor and controller parts,” and to “adjust equipment for proper operation.” Imperial’s motion was properly denied because, Imperial failed to demonstrate that it did not owe a duty to the Plaintiffs considering the terms of the Maintenance Contract.  See Fajardo v Mainco El. & Elec. Corp., 143 A.D.3d 759, 762 (2d Dep’t 2016)  The relevant law states that “[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.”  Fajardo, 143 A.D.3d at 762; see Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559 (1973); Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 703 (2d Dep’t 2020).  In addition, a “party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons . . . where the contracting party has entirely displaced the other party's duty of safe maintenance.” Carter, 187 A.D.3d at 703.  The Court further reasoned that Imperial failed to demonstrate that there was no defect in the elevator that it “ought to have found” or that it “use[d] reasonable care to discover and correct” such a defect.  Fajardo, 143 A.D.3d at 762.  Specifically, Imperial failed to eliminate triable issues of fact as to whether it failed to use reasonable care to discover and correct a dust condition that it ought to have found during its monthly cleaning and servicing of the elevator, motor room, and operating mechanisms. The Court also affirmed the Supreme Court’s grant of summary judgment to Odyssia and Preferred dismissing the fifth-party complaint insofar as asserted against each of them. Contrary to Imperial's contention, Odyssia and Preferred demonstrated that Preferred's work at the subject premises, supervised by Odyssia, did not create any dust condition in the elevator motor room that contributed to the happening of the accident. Deposition testimony of witnesses from Preferred, Odyssia, and Bechtel established that there was no debris or brick dust left in the motor room after Preferred completed its installation of the telecommunications equipment.  Imperial’s opposition was speculative and unsupported by any evidence, that a dust condition affecting the elevator components four years after completion of Preferred's work could have been caused by Preferred's alleged failure to seal holes it cut into the wall of the elevator's motor room.
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