NOTE FROM THE EDITOR:
Last month I started my note by saying, “Greetings from snowy Buffalo this Thanksgiving week…”. Little did I know that this month, Buffalonians would be recovering, and digging out from, one of the worst blizzards in Buffalo’s history. It was harrowing at times for many living in the Western New York area and lives were lost. I appreciate hearing from so many colleagues across the country checking in and sending thoughts and prayers. While the process of digging out has been arduous, I am happy to report the sun is out today and things are starting to get back to normal. As a community, there are countless stories of people pulling together, neighbors helping each other dig out of their driveways, unexpectedly sharing holiday meals when holiday plans were cancelled and other acts of kindness. One example is Hurwitz Fine attorney Michael J. Williams, who is a volunteer firefighter with the Harris Hill Volunteer Fire Company. He spent his entire holiday helping people through many storm emergencies and literally slept at the fire station.
Putting the blizzard aside for a moment, 2022 was an exciting year for Hurwitz Fine! We celebrated 45 years—our sapphire anniversary— with a new name and tagline, a new look and new practice areas. We continue to look toward the future with the evolution of our name and visual identity and provide innovative solutions to our clients. We are so proud of what we have accomplished thanks to our attorneys, staff, colleagues and clients! We are excited to embark on 2023 and look forward to continuing servicing our corporate, litigation, insurance and individual clients. We appreciate your continued support and trust in us over the last 45 years!
Happy New Year to All!
Jody
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.
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Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] and Lani J. Brandon [email protected]
11/23/22 Cortes v. King Kullen Grocery Co., Inc.
Appellate Division, Second Department
Court affirmed granting of Defendant’s motion for summary judgment because cart filled with empty boxes that Plaintiff tripped and fell over was open and obvious and not inherently dangerous.
Plaintiff brought an action to recover for injuries she sustained when she tripped and fell over a cart stacked with empty boxes in an aisle of Defendant’s store. Defendant filed a motion for summary judgment on the grounds that the cart was open and obvious and not inherently dangerous. In opposition, Plaintiff submitted an affidavit in which she stated she had observed the cart when she entered the aisle, but forgot it was there in the moment she tripped over it. The court granted Defendant’s motion.
On appeal, the Court found that Defendant established its prima facie case by submitting evidence demonstrating that the cart stacked with empty boxes was open and obvious, as it was both readily observable by those employing the reasonable use of their senses, and also known to Plaintiff prior to the accident. As such, the Court determined the cart was not inherently dangerous. The Court further determined that Plaintiff failed to raise a triable issue of fact for the same reasons.
12/13/22 Castro v. Village Super Market of NY, LLC
Appellate Division, First Department
Contrary to the Cortes decision, the Court in Castro upheld denial Defendant’s motion for summary judgment because the record presented an issue of fact regarding the shopping basket that Plaintiff tripped and fell over.
Plaintiff sued to recover for personal injuries she allegedly sustained when she tripped and fell over a plastic shopping basket on the floor of Defendant’s supermarket. Defendant filed a motion for summary judgment, arguing that the basket was an open and obvious condition and not inherently dangerous. The court denied the motion, and Defendant appealed.
The Court found that the record presented an issue of fact as to whether the shopping basket constituted an open and obvious condition that was not inherently dangerous. Photographs and surveillance footage showed that the shopping basket was sitting on the floor, low to the ground, next to a large cart with other shopping baskets piled on top of it. The Court determined that, under these circumstances, the basket may have served as a “trap for the unwary.”
11/29/22 Aguilera v. BJ’s Wholesale Club, Inc.
Appellate Division, First Department
Granting of Defendant’s motion for summary judgment upheld because Plaintiff failed to raise a triable issue of fact with regard to whether Defendant had actual or constructive notice of the wet substance which caused Plaintiff’s fall.
Plaintiff brought an action to recover for injuries she allegedly sustained when she slipped and fell on an unidentified wet substance while entering a stall in the ladies’ room at Defendant’s store. Defendant filed a motion for summary judgment on the issue of notice, which the court granted.
On appeal, the Court found that Defendant had established its prima facie case by submitting evidence which showed it did not have actual or constructive notice of the hazardous condition. The evidence included testimony from Defendant’s maintenance worker, who testified she had worked on the date of the incident and followed a set schedule which consisted of her inspecting and cleaning the bathroom and each stall twice every hour, making sure the floor was not wet, and drying any wet conditions. Based on the record, the Court determined Defendant had as little as 4 minutes and no more than 30 minutes to find and remedy the condition which caused Plaintiff’s fall. The Court found that was an insufficient period of time to charge Defendant with having constructive notice.
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School District & Municipal Liability
By: Anastasia M. McCarthy [email protected]
Happy Holidays—I hope this month’s column finds you safe and warm, especially if you happen to be a resident of Western New York. My family and I left Buffalo for our annual Christmas trip to the Finger Lakes just before Winter Storm Elliot (also the name of my son) hit our area—I am told by my neighbors that my garage door “disappeared” from view although my neighborhood was lucky to have lost power only for a few hours. If you have seen the now infamous photograph of the abandoned vehicles buried in snow on Transit Road—that is right around the corner from my house. We were lucky to have made it out of town on Thursday night.
This month’s column will be a short one covering a negligent supervision case out of the Second Department decided earlier this month. As we enter the new year, please feel free to reach out to us! We are always here to help!
December 7, 2022 Hauburger v. McMane, et al.
Supreme Court, Appellate Division, Second Department
Where the boundaries of the school building are a limit to the District’s duty.
This lawsuit arose from the 2015 suicide (at home) of a student within the Defendant School District (South Orangetown Central) following an incident of online bullying/harassment/ridicule by another student. The causes of action included negligent and negligent hiring and retention.
The day before the suicide, the decedent had been ridiculed on social media by another student, leading the decedent to post a threat of suicide and homicide on Instagram. That evening, a third student who saw the message on Instagram texted a teacher (McMane) at the decedent’s school. This same student sent a subsequent message claiming that the incident was resolved. Nevertheless, the following morning McMane met the student who sent her the text message and decided to report the incident to the school psychologist anyway—the suicide occurred before she was able to do so.
Following the decedent’s suicide, the decedent’s mother commenced a lawsuit against McMane, the District, the District’s superintendent, and the principal of Decedent’s school. The Defendants moved quickly for summary judgment, which the trial court granted on the basis that the suicide occurred off of school grounds and was therefore beyond the scope of defendants’ duty to supervise the decedent. The Court also held that Education Law § 12, prohibiting harassment on school property and at school events, did not create a private right of action.
More importantly, the Court (again) upheld the longstanding principle that the duty to provide students with adequate supervision is coextensive and concomitant with its physical custody and control over a child—the duty of care, generally, does not extend beyond the school premises. Exceptions to this rule are rare and tend to flow from incidents that occur on school grounds and continue elsewhere.
In the instant matter, the defendants established that the suicide, and the events leading up to is, did not occur anywhere within the orbit of the District’s authority.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
Merry Christmas, Happy New Year, and Go BILLS! This month, I report on yet another discovery case citing to the Court of Appeals case of Forman v Henkin, 30 NY3d 656 (2018), which I first analyzed here, again in our 2020 issue, and earlier this year in our September issue. In Clarke v Povella, the First Department reversed the trial court and found that plaintiff’s journal entries were discoverable because plaintiff asserted claims for emotional and psychological injuries. Based on plaintiff’s conduct and the circumstances of that case, the Court determined spoliation sanctions were warranted since plaintiff was under an obligation to preserve her journal once defendants made a demand for it at her deposition. Remember, the general rule under CPLR § 3126 is that courts will impose a discovery sanction commensurate with the particular disobedience because it is designed to punish and go no further than that. But before a court invokes the drastic remedy of striking a pleading or even of precluding all evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. I’m always interested in learning of your challenging spoliation motion and/or discovery sanctions experience, so please reach out and share.
Until next issue, stay safe and warm …
Marc
11/29/22 Clarke v Povella
Appellate Division, First Department
Plaintiffs journal entries were discoverable and since she was under an obligation to preserve them once defendants made a demand for it at her deposition, her failure to preserve it resulted in spoliation sanctions.
The trial court denied defendants’ motion for spoilation sanctions as a result of plaintiff’s failure to produce journal entries, which were first demanded at her deposition. The First Department unanimously modified the trial court’s decision to grant the motion by imposing an adverse interest charge at trial, finding the journal entries were discoverable because plaintiff asserted claims for emotional and psychological injuries.
The Court held that plaintiff was under an obligation to preserve her journal once defendants made a demand for it at her deposition and her subsequent failure to take steps to preserve it, along with her vague accounts of when and how she had lost it, supported a finding that she was grossly negligent, giving rise to an inference that the journal would have been relevant to her claim for emotional and psychological damages.
Since plaintiff provided authorizations for records of her psychological treatment and testified extensively as to her emotional and psychological state, the Court declined to dismiss the complaint or preclude plaintiff from asserting those claims. Rather, it held an adverse inference charge at trial is sufficient and appropriate,
11/30/22 Lopez v Maggies Paratransit Corp.
Appellate Division, Second Department
Defendants entitled to an order vacating of the note of issue and directing plaintiff to provide defendants with authorizations permitting the release of medical records relating to pertinent injuries that pre-date the accident.
Plaintiff was allegedly injured in a motor vehicle accident. After several years of discovery, including a deposition of plaintiff and disclosure of certain medical records, the trial court granted defendants’ motion for discovery sanctions, pursuant to CPLR § 3126, dismissing the complaint. The Second Department reversed the trial court’s decision and granted the motion to the extent of vacating the note of issue and directing plaintiff to provide defendants with authorizations permitting the release of medical records relating to plaintiff’s pertinent injuries which pre-date the accident.
Although plaintiff initially failed to provide authorizations for the release of medical records relating to pertinent injuries which pre-date the accident, plaintiff did provide date-restricted authorizations for the release of medical records relating to pertinent injuries one week after defendants requested them. Thus, the discovery issue was whether defendants were entitled to authorizations from specified providers that were unrestricted as to date. Rather than conferring with plaintiff about the date-restrictions in the authorizations he provided, defendants moved for discovery sanctions, despite those responsive authorizations. Under those circumstances, the Court held defendants clearly did not demonstrate that plaintiff’s discovery-related conduct was willful and contumacious.
However, considering plaintiff’s delay in disclosing information about prior injuries that bear on the controversy and would assist in preparation for trial, the Court also held the note of issue should have been granted to the extent of directing plaintiff to provide defendants with authorizations permitting the release of medical records relating to pertinent injuries which pre-date the accident, and directing plaintiff’s attorney to pay the sum of $3,000 to defendants’ attorney.
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Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
During the year I try to pull some interesting science news stories/research/tidbits for your enjoyment. As we approach the end of the year (and the final issue of Pushing Buttons for 2022), I wanted to look back at some of the biggest science news stories of 2022. I searched multiple sources for common threads and stories. What did I find? No two websites identified the same story as noteworthy enough to place it in its top 10 on the year (except for the James Webb Space Telescope and videogame playing brain cells). With that said, here are some of the most interesting science discoveries of 2022: (1) an experiment suggests that consciousness relies on quantum entanglement (BigThink.com); (2) a man received a transplant of a genetically engineered pig heart (BigThink.com); (3) the first images from the James Webb Space Telescope arrived (NewScientist.com); (4) bumble bees play with toys (Science.Org); (5) 30,000 year-old baby Wooly Mammoth was discovered in Canadian ice (BestLifeOnline.com); (6) brain cells grown in a lab learned to play videogames (BestLifeOnline.com); (7) goldfish learned to drive tiny cars (CosmosMagazine.com); (8) the search for the tetraneutron continues (ScienceNews.Org); (9) the human genome sequence is complete (LabRoots.com); and (10) fluffy coats helped dinosaurs thrive (SmithsonianMag.com).
As we move on to 2023, I want to thank you all for taking time out of your busy day to read my little niche newsletter column. Happy holidays and new year to all. I look forward to 2023.
I hope you enjoy the ride.
Scott
12/13/2022 Thomas J. Orr, as Chapter 7 Bankruptcy Trustee of the Estate of Doyle Belmar v. Vornado Realty, L.P., et al.
Supreme Court, New York County
Elevator Expert Must Possess Requisite Skill, Training, Education, Knowledge or Experience.
The action arose from two separate workplace incidents that occurred on August 21, 2014, and August 28, 2014 (the “Incidents”), in the No. 22 Freight Elevator (the “Freight Elevator”) at 666 Fifth Avenue, New York, New York (the “Premises”). Defendant, Otis Elevator Company (“Otis”) moved for summary judgment seeking to dismiss Plaintiff’s Complaint. Otis contended that: (1) Plaintiff’s claims were physically, electrically, and mechanically impossible; (2) res ipsa loquitur did not apply; (3) Otis did not breach its duty of reasonable care in maintaining, servicing, and repairing the Freight Elevator; and (4) Otis did not have notice of any intermittent stoppage in flight, over-speeding condition, or other defective conditions. Defendants, Vornado Realty, L.P., and Vornado Realty Trust (“Vornado”) moved for summary judgment dismissing Plaintiff’s Complaint. Vornado contended that (1) it did not own or manage the Premises; and (2) maintenance and repairs of the Freight Elevator were the exclusive responsibility of Otis under a full-service maintenance contract with the Premise owner.
Otis Motion
Otis sought summary judgment on the basis that Plaintiff’s claims of erratic movement were physically, mechanically, and electrically impossible. DiGelormo v. Weil, 260 N.Y. 192, 199-200 (1932) (“The law is that where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed which accords with its absence.”). Otis submitted evidence in the form of an expert affidavit setting forth the impossibility for the Freight Elevator to bounce as it ascends as well as overspeed up and down. In opposition, Plaintiff submitted an expert affidavit that these issues can arise for various reasons. On this issue, Otis established that the Freight Elevator did not and could not have operated in the manner alleged by Plaintiff. Plaintiff’s expert opined on his own version of the Incidents; however, it did not merit consideration due to his lack of necessary credentials to testify as an expert witness. See Schecter v. 3320 Holding LLC, 64 A.D.3d 446, 449-50 (1st Dep’t 2009) (citing Matott v. Ward, 48 N.Y.2d 455, 459 [1970] [ “For a witness to be qualified as an expert, the witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable.”]) Here, Plaintiff’s expert affidavit did not demonstrate his familiarity with the laws, rules, regulations, and accepted customs and practices in the field of elevator maintenance. Summary judgment granted.
Vornado Motion
Vornado sought summary judgment, contending that it was not the owner or management company of the building when the Incidents took place. The building owner was 666 Fifth Associates, LLC, which was owned by 666 Fifth Equity, LLC, which was owned by a joint venture partnership between VNO 666 Fifth Member, LLC and Fifth K Two, LLC. Vornado was the sole member of VNO 666 Fifth Member, LLC. Moreover, the management company was 666 Fifth Management, LLC, whose members included Vornado.
A corporate entity is liable for the acts of a separate, related entity only under “extraordinary circumstances.” Da Silva v. Kinsho Int’l Corp., 210 F. Supp. 2d 241, 243 (S.D.N.Y. 2000). Since Vornado was not the building owner or management company, but only a shareholder/member of the owner and management companies, it is not the proper party to be sued in the matter. Summary judgment granted.
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