Premises Pointers - Volume VI, No. 8

Volume VI, No. 8 Friday, January 27, 2023 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.

Hello from snowy Buffalo (yes, it’s still winter in Buffalo)! It’s hard to believe we are already at the end of the first month of 2023. While it may be a little late to say Happy New Year, I will anyway. At the end of each year, I reflect on the work of our firm, the accomplishments of our lawyers and the many contributions of all Hurwitz Fine employees.  My “2022 In Review” message can be found here and is always such a pleasure to put together. Now on to 2023 and I am thrilled to say we are off to a wonderful start! We are continuing to expand our teams and are excited to announce that we have welcomed three associatesEvan D. GestwickRichelle R. Kloch, and Ryan P. O’Shea, who were all admitted to the bar earlier this month. The day you are admitted to the bar is one most lawyers never forget as it marks the last step to becoming a practicing lawyer after years of hard work. Additionally, we welcomed Gabrielle D. Markle and Kaitlin A. Sines as associates this month. Both have joined our general litigation group and will be practicing in the areas of medical malpractice/nursing home negligence, automobile liability, premises liability and asbestos/toxic tort litigation. Each of these individuals will be valuable assets to our firm, and we truly could not be luckier with the group of attorneys we have.   Building off our excellent team, Brian D. Barnas received the Sheldon Hurwitz Young Lawyer award from the New York State Bar Association earlier this month at their annual conference! This prestigious award is named after our very own co-founder Sheldon Hurwitz and recognizes attorneys outstanding contributions to the field of insurance.  We are very proud of Brian and this achievement! In other exciting news, V. Christopher Potenza was elected to the Harmonie Group Board of Directors at the organization’s Winter Conference in Coronado, CA and I was elected to the WNY Women’s Foundation Board of Directors for a three-year term. Just before the new year, I was fortunate to sit down with several well-respected WNY women lawyers at the Buffalo Business First Table of Experts “Women in Law” panel. We had insightful discussions about the unique challenges faced by woman in the legal industry. I learned much from my co-panelists and look forward to continuing my work with women in my new role with the WNY Women’s Foundation whose mission is to create a culture of possibility so each woman and girl can live, grow, and lead to her fullest potential. I hope your 2023 is off to a great start! Enjoy the weekend and stay warm.


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. Friedhaber
12/23/22      Olivieri v. Barnes & Noble, Inc., et al., Defendants. Barnes & Noble, Inc., Third-Party Plaintiff, v. National Janitorial Solutions Incorporated, et al., Third-Party Defendants. National Janitorial Solutions Incorporated, et al., Fourth-Party Plaintiff-Respondent, v. RJS Janitorial, LLC, Fourth-Party Defendant-Appellant. Appellate Division, Fourth Department Court reversed amended order in its entirety because specific words in indemnification provision of contractual agreement described negligent acts or omissions, and since Defendant was not negligent, the indemnification provision was not triggered.   Plaintiff brought an action to recover for injuries she sustained when she slipped and fell in a Barnes & Noble store. Barnes & Noble (BN) then commenced a third-party action against National Janitorial Solutions Incorporated (NJS), among others, because BN had contracted with NJS for janitorial services at its stores. NJS subsequently commenced a fourth-party action against RJS Janitorial, LLC (RJS), with whom it had subcontracted for janitorial services at the store where Plaintiff fell. In an amended order, the court granted NJS summary judgment against RJS on contractual indemnification, subject to an inquest on damages, and denied RJS’ cross motion for summary judgment dismissing the fourth-party complaint. RJS then appealed.   Prior to the amended order, the Supreme Court submitted an order determining that Plaintiff could not establish that the floor in BN’s store was negligently maintained, and granted BN’s motion for summary judgment dismissing the complaint against it. That order was later affirmed by the Appellate Court. Then, in BN’s third-party action against NJS, the court granted the part of BN’s motion for summary judgment that was for contractual indemnification against NJS. NJS appealed, and the Appellate Court found that the court properly granted summary judgment on BN's cause of action for contractual indemnification from NJS because it was based on Plaintiff's claim or action inasmuch as the indemnification provision in the contract between BN and NJS did not base the indemnification of BN upon a finding that NJS was negligent or at fault. On RJS’ appeal here, RJS argued that the specific terms of the contractual indemnification provision in its agreement with NJS required a finding of an actual breach of the agreement by RJS. RJS contended that, because no breach of the agreement can be found, the indemnification provision cannot be triggered and NJS's contractual indemnification cause of action against RJS should have been dismissed on that basis. New York case law has established that the right to contractual indemnification is dependent upon the specific language of the contract, and a contract that provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous. The Court found that the agreement between NJS and RJS defined the acts or omissions covered by the indemnity provision to include negligence, and because RJS was not negligent, the indemnification provision was not triggered, entitling RJS to summary judgment dismissing the cause of action for contractual indemnification. As a result, the court erred in granting NJS’ motion for summary judgment and denying RJS’ cross-motion.   12/21/22          Jennifer O’Connell, etc., respondent, v. Los Compadres Liquors and Wines, defendant, Isidro Perez, appellant. Appellate Division, Second Department Court upheld denial of Defendant’s motion for summary judgment because Defendant failed to prove he was an out-of-possession landlord with no duty to maintain premises.   The decedent of a patron sued to recover for personal injuries the patron allegedly sustained when he slipped and fell on a wet metal step while entering a liquor store operated by defendant Los Compadres Liquors and Wines, a tenant in a building owned by defendant Isidro Perez. Defendant Perez moved for summary judgment, arguing that he was an out-of-possession landlord with no duty to maintain the premises, and that the lease agreement between him and tenant Los Compadres obligated the tenant to take good care of the premises. The court denied that motion, and Defendant Perez appealed.   New York case law has established that, although an owner or tenant in possession of property owes a duty to maintain that property in a reasonably safe condition, an out-of-possession landlord is not liable for injuries caused by a dangerous condition on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty. As a result, the Court found that, since Defendant Perez failed to provide a copy of the lease agreement between himself and the tenant, he also failed to meet his prima facie burden demonstrating that he was an out-of-possession landlord who lacked any contractual obligation to maintain the premises, including the metal step at issue.   12/28/22          Cheprakova v. Medicine Plaza, Inc., et al. Appellate Division, Second Department Court upheld the granting of Defendants’ motion for summary judgment dismissing complaint insofar as against defendant Medicine Plaza because Defendant established that Plaintiff did not know what caused her fall.   Plaintiff brought an action to recover for injuries she allegedly sustained when she slipped and fell inside a pharmacy operated by defendant Medicine Plaza, Inc. and owned by defendant Ilene Realty, LLC. The defendants moved for summary judgment, arguing that Plaintiff was unable to identify the cause of her fall without resorting to speculation. The Supreme Court granted the branch of Defendants’ motion dismissing the complaint insofar as against defendant Medicine Plaza, and Plaintiff appealed.   On appeal, the Court cited to New York case law which has established that, in a premises liability case, a defendant may meet its prima facie burden proving entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her injury without engaging in speculation.   The Court determined that Defendant had established its prima facie case by submitting the transcript of Plaintiff’s deposition testimony, which showed Plaintiff did not know what caused her to slip and fall. In opposition, Plaintiff failed to raise a triable issue of fact.
School District & Municipal Liability By: Anastasia M. McCarthy [email protected]  
Dear Readers, All is well in snowy Buffalo as we begin 2023 (other than the recent, heartbreaking Buffalo Bills loss, but we won’t go there today).  This month we have two cases—one involving a Second Department decision on the use of pseudonyms in Child Victims Act litigation and another involving the challenge to an expert opinion about the depth of woodchips on a playground. The first decision is really most remarkable because it is one of only a handful of appellate decisions addressing the use of pseudonyms in lookback litigation.  Although the holding is not remarkable, its existence is part of a still a growing canon of law.  Anastasia January 25, 2023 - Roe v. Harborfields Central School District Supreme Court, Appellate Division, Second Department, New York Where the Court determines Plaintiff is entitled to anonymity.   This lawsuit arose from alleged sexual abuse of the Plaintiff, while a minor in the late 1990s, by the defendant Eugene Senzer, who was a music teacher at the defendant Oldfield Middle School. The Plaintiff brought this action pursuant to the Child Victims Act against Eugene Senzer, Oldfield Middle School, Harborfields Central School District, and Board of Education of Harborfields Central School District. Simultaneously with filing this , in which the plaintiff revealed their identity in the caption, the plaintiff filed a motion seeking permission to prosecute this action using a pseudonym. The defendants opposed the motion. By order dated October 5, 2021, the Supreme Court granted the plaintiff's motion, stating that the plaintiff's motion was “granted as required by Civil Rights Law § 50–b and all references to the Plaintiff in this action shall either identify her/him/them as ‘Jane FC Roe’ or ‘Plaintiff,’ ” and also ordered the sealing of previously filed court documents that identified the plaintiff by name. The defendants moved for leave to reargue their opposition to the plaintiff's motion, which was granted, and upon reargument, the Court adhered to its original determination. The court clarified its prior order, stating that “the permission granted to Plaintiff to proceed in this action under a pseudonym is to only require papers filed in court to bear the pseudonym, it did not authorize the Plaintiff to prosecute the case without disclosing his/her/their identity to the Defendants.”  On appeal, the Second Department affirmed the determination granting the plaintiff's motion on a different ground than the Supreme Court. The court stated “in determining whether to grant a plaintiff's request to proceed anonymously, the court must ‘use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant.’” PB–7 Doe v. Amherst Cent. Sch. Dist., 196 A.D.3d 9, 12, quoting Anonymous v. Lerner, 124 A.D.3d 487, 487. Among the factors the court should consider are “‘1) whether the plaintiff is challenging governmental activity or an individual's actions, 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy, 3) whether identification would put the plaintiff [or innocent third-parties] at risk of suffering physical or mental injury, 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously, and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.’” PB–7 Doe v. Amherst Cent. Sch. Dist., 196 A.D.3d at 13, quoting Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 [E.D.N.Y.]. The Court focused on the Plaintiff’s affidavit submitted in support of the motion, which averred that the allegations in the complaint were truthful, including that due to the sexual abuse the plaintiff “continues to suffer great pain of mind and body, shock, emotional distress, physical injuries, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life.” The plaintiff also averred that if required to publicly disclose their name it would cause further “emotional stress, embarrassment, and loss of self-esteem” and the plaintiff may not pursue the action. See Doe v. Yeshiva Univ., 195 A.D.3d 565, 566. Although the plaintiff has already divulged their identity to the defendants, the defendants contend that they would be prejudiced if unable to use the plaintiff's name during their investigation of the plaintiff's claims. This lacks merit, as the orders do not preclude the defendants from disclosing the plaintiff's name during investigations since the use of a pseudonym was limited to papers filed with the court. The defendants never explained why the public must know the plaintiff's identity. See Doe v. Yeshiva Univ., 195 A.D.3d at 566. J. H. V. v. Locust Valley Central School District Supreme Court, Appellate Division, Second Department, New York Where summary judgment was thwarted by the credibility of an expert opinion.   This lawsuit was brought to recover damages for personal injuries sustained due to the dangerous and defective condition of the playground surface. The plaintiff, an infant, allegedly was injured when he fell while using the monkey bars during recess on a playground within the defendant Locust Valley Central School District. Following discovery, the defendant moved for summary judgment dismissing the first cause of action. By order entered May 14, 2020, the Supreme Court denied the defendant's motion. The Second Department affirmed. The defendant made a prima facie showing of its entitlement to judgment as a matter of law dismissing the first cause of action by submitting an affidavit from an expert demonstrating that the surface of the playground, comprised of engineered wood chips, conformed to good and accepted safety standards, and was maintained in a reasonably safe condition. See Daefler v. Briarcliff Manor Union Free School Dist., 72 A.D.3d 872, 873. In opposition, however, the plaintiff raised a triable issue of fact through the affidavit of an expert who opined that the playground surface was in a dangerous condition due to the insufficient depth of the wood chips and the absence of rubber mats below that surface. While the defendant and its expert took issue with the credibility of this opinion, such credibility questions cannot be resolved on a motion for summary judgment. See Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505.  
Homeowner Liability, Recreational Accidents, and Discovery Angles By: Marc A. Schulz [email protected]

Hello Subscribers,

A win in the NFL playoffs is still a win, and we will take every playoff victory we can … Go BILLS! This month, I report on three discovery cases, including one most interesting case involving the court’s ability to restrict the scope of an independent medical examination (IME). Generally, a plaintiff in a personal injury action affirmatively places his or her physical and/or mental condition in controversy. Pursuant to CPLR § 3121, following the commencement of an action, where a plaintiff puts his or her physical condition at issue, defendants may require a plaintiff to submit to an IME by a physician retained by defendant for that purpose. In determining what kind of examination to authorize, the court must balance the desire for plaintiff to be examined safely and free from pain against the need for defendant to determine facts in the interest of truth. Thus, a showing of the medical importance and safety of the particular IME is required, as well as an explanation of the relevance and the need for the information that the IME will yield. Accordingly, an IME should not be required if it presents the possibility of danger to a plaintiff’s life or health. Conversely, a defendant is entitled to an IME of a plaintiff where the plaintiff fails to demonstrate that the IME is potentially harmful or poses a serious threat to her health. The issue in Pettinato was whether the trial court should have limited the scope of the IME by permitting a comprehensive gynecological examination but not including her pelvic/genital area, despite her claiming pelvic pain, pudendal neuralgia, a vulvar laceration and dyspareunia, among other injuries. If you’ve encountered a similar issue involving a court restricting or limiting the scope of an IME, please reach out and share your experiences.

Until next issue, stay safe and warm …

Marc 12/29/22          Lindsay v CG Maiden Member, LLC Appellate Division, First Department Defendant’s motion to compel authorizations for pharmacies, hospitals, physicians, and other health care providers from four months before the accident to the present regarding his overall health habits and activities denied because defendant failed to show that the requested records were material and necessary to causation, plaintiff’s ability to recover from his injuries, and/or his future prognosis.   The trial court denied defendants’ motion to vacate the note of issue and to compel plaintiff to provide authorizations for pharmacies, hospitals, physicians, and other health care providers who rendered care or issued prescriptions to plaintiff from four months before the incident to the present. The First Department unanimously affirmed the trial court’s order as defendant failed to show that the requested records were material and necessary to asserting causation, plaintiff’s ability to recover from his injuries, or his future prognosis. Given defendant’s failure to offer proper expert evidence establishing a particularized need for the inquiry into matters not directly at issue in this action, the Court affirmed denial of defendant’s discovery request to medical records pertaining to his over health habits and activities. Further, the Court held that defendant failed to demonstrate how plaintiff’s claim that his alleged injuries are permanent in nature affects his life expectancy given that plaintiff “has not claimed that his life expectancy has been negatively affected by the accident”.   12/29/22          Parkis v City of Schenectady Appellate Division, Third Department Trial court providently exercised its discretion in imposing discovery sanctions of an adverse inference charge for defendant’s failure to preserve video footage of plaintiff’s incident rather than striking defendant’s answer.   Plaintiff allegedly slipped and fell on a sidewalk on property owned by defendant that resulted in a traumatic brain injury. Defendant was asked during discovery for surveillance video footage from the incident scene and provided still photographs captured from the video, but not the video itself. The trial court denied, without prejudice, plaintiff’s motion to compel production of the video after defense counsel confirmed during oral argument that the video no longer exists. The trial court thereafter denied plaintiff’s motion, pursuant to CPLR § 3126, to strike defendant’s answer as a spoilation sanction but ordering defendant would be precluded from offering trial testimony about the missing video and further indicated that the trial court would give an adverse inference instruction at the time of trial.   The Third Department agreed with the trial court that discovery sanctions were warranted as the record reflects that within a day of the incident, three of defendant’s employees were aware of it and viewed portions of the video surveillance footage, an incident report was prepared, an employee was directed to preserve the video, and defendant notified its insurance carrier of the incident. The Court held that defendant’s failure to explain how or why photographic stills were taken from the video, but the video itself was then destroyed, warranted a finding of negligent destruction of evidence. Recognizing that the loss of video did not completely deprive plaintiff of the ability to present her case, the Court further held the trial court properly declined to strike defendant’s answer and instead imposing alternative sanctions.     01/05/23          Flowers v Cora Realty Co. LLC Appellate Division, First Department Plaintiff is not entitled to post-note of issue discovery, nor sanctions for alleged misconduct of opposing counsel at depositions since the transcript did not reveal a persistent pattern of frivolous, repetitive, or meritless conduct.   The First Department unanimously affirmed the trial court’s order denying plaintiff’s motion to strike defendants’ answer, for a deposition of defendant Chestnut’s COO, the further deposition of the building superintendent, and production of agreements between defendants. Plaintiff failed to cite any specific misconduct by defendants’ counsel at the deposition of the building superintendent and the Court held the record did not support a finding of a persistent pattern of frivolous, repetitive or meritless conduct sufficient to support sanctions. The apparent conflict between the affidavit of Chestnut’s CEO and the testimony of the building superintendent does not warrant re-opening discovery, since plaintiff filed the note of issue and had the opportunity to question the superintendent regarding the existence of records concerning mopping activities and complaints of a wet condition on the stairs.     01/10/23          Pettinato EQR-Rivertower, LLC Appellate Division, First Department The trial court improperly limited the scope of defendants’ IME of plaintiff such that defendants were entitled to a comprehensive gynecological exam, including examining plaintiff’s pelvic/genital area.   Plaintiff was allegedly injured after a slip and fall while exiting the shower/bathtub and fell on the shower track, in the bathroom of her apartment, in a building owned and operated by defendants. She claimed injuries to her genital area, including her pelvic area and that such injuries resulted in current symptoms that include her inability to engage in prolonged sitting without pain and lack of flexibility. The trial granted in part and denied in part defendants’ motion to compel the IME such that defendants were entitled to a gynecological examination but not the pelvic examination.   The First Department’s majority held that the trial court should not have limited the scope of the IME. Defendant’s motion to compel was supported by a medical expert’s affidavit showing that the comprehensive gynecological examination, which would include a pelvic examination, is material and necessary, that such examination was a routine procedure, and that it has no harmful effects. On this showing, the Court held the trial court should have allowed the comprehensive gynecological examination with the pelvic examination, particularly because plaintiff’s medical expert does not materially controvert defendant’s expert opinion. Absent any support for plaintiff’s conclusory claim that a “further” pelvic examination would be harmful, the benefits of such examination to pretrial disclosure more than outweighs the discomfort to plaintiff.   Justice Singh’s dissent argues the trial court providently exercised its discretion in denying defendants’ request for an invasive pelvic examination more than six years after the alleged incident. The dissent contends that defendants have not met their burden to compel plaintiff to submit to an intrusive pelvic examination because apart from claiming that it is a “classic pelvic examination technique”, the majority does not explain how the examination technique, six years after the accident, will lead to material and necessary discovery that is not available by other, less invasive means.

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

Echidnas are quill-covered egg-laying mammals.  Along with (also cute) Platypus, these little mammals are the only mammals that lay eggs.  Named after Echidna from Greek mythology (half-woman/half-snake), they were perceived to have both mammalian and reptilian traits.  If not cute enough already, researchers reported in Biology Letters that the Echidna blows snot bubbles to keep cool.  The research found that the snot bubbles pop, maintaining moisture at the nose.  As the moisture evaporates, it draws heat away from the beak, helping to maintain cooler blood temperatures.  The concept is not all that different than humans perspiring to keep cool.  Who needs tissues?    

Busy end of the year for vertical transportation cases. We have three very different cases below pertaining to some unique situations. In the first, the Appellate Division denied Plaintiff’s request for spoliation sanctions. In the second, the Appellate Division denied Plaintiff’s request for post-remedial records. In the third, the Appellate Division denied Defendants’ motions for summary judgment. 

Happy New Year!  Welcome back to Pushing Buttons.  I hope you enjoy the ride. 

Scott 12/20/2022          Albert Blackstock, et al. v. AVR Crossroads, LLC, et al.  Appellate Division, First Department Party seeking sanction for spoliation must conduct due diligence to obtain the evidence.

Plaintiff filed a motion to strike (the “Motion”) the answers of Defendants, Schindler Elevator Corporation (“Schindler”), AVR Crossroads, LLC  (“AVR”) and Boston Properties Limited Partnership (“Boston Properties”), or alternatively, for an adverse inference concerning certain documents.  Plaintiff’s Motion was denied.  Plaintiff appealed.

A party seeking a sanction for spoliation of evidence must demonstrate: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a “culpable state of mind”; and (3) that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.  VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45 (1st Dep’t 2012).  The Appellate Division found insufficient evidence to support Plaintiffs’ claim that, in addition to an electronic record of every visit a Schindler mechanic made regarding the subject escalator, that handwritten time tickets existed for those same maintenance visits, which were not exchanged.  See Aponte v. Bronx Preserv. Hous. Dev. Fund Corp., 202 A.D.3d 401 (1st Dep’t 2022); Cuevas v. 1738 Assoc., LLC, 96 A.D.3d 637 (1st Dep’t 2012).

Pertaining to the escalator logbook, AVR and Boston Properties proffered undisputed evidence that it remained with the building when the building was sold.  Thus, providing evidence that it was not in the possession, custody or control of AVR or Boston Properties.  See Jean-Pierre v. Touro Coll., 40 A.D.3d 819 (2d Dep’t 2007).  Moreover, the Appellate Division reasoned that Plaintiffs made no effort to conduct non-party discovery to obtain the logbook from the new owner.      

Thus, Plaintiffs failed to meet their burden demonstrating that spoliation sanctions were warranted.  See Mohammed v. Command Sec. Corp., 83 A.D.3d 605 (1st Dep’t 2011), lv. denied 17 N.Y.3d 708 (2011).

Affirmed. 12/20/2022       Timothy Poplawski v. 111 Wall Street LLC, et al.  Appellate Division, First Department Plaintiff not entitled to post-incident repair records.

A Preliminary Conference Order (the “Order”) was entered, directing Defendants to produce post-accident elevator repair records.  Defendants filed motions to vacate the Order.  Motions were granted and the Plaintiff appealed. 

The action arose from an allegation of personal injuries when the elevator in question (the “Elevator”) entered a free fall before stopping abruptly.  The Appellate Department affirmed the Supreme Court Decision stating the that the Supreme Court providently exercised its discretion in vacating the Order, which directed Defendants to produce post-accident repair records.  The Appellate Division cited to the long-standing principle that evidence concerning post-accident repairs, while generally inadmissible absent certain exceptions, is never admissible as proof of admission of negligence.  Kaplan v. Einy, 209 A.D.2d 248 252 (1st Dep’t 1994).  The Court concluded that the exceptions to the general rule was not applicable.  There were no issues of control or claim of manufacturing defect.  See Fernandez v. Higdon El. Co.¸220 A.D.2d 293, 293 (1st Dep’t 1995).  Moreover, the Elevator’s condition on the date of incident could be proven without post-accident repair records and Plaintiff was not entitled to such records.

Affirmed.  12/28/2022         Ruben Sanchez v. City of N.Y., et al.  Appellate Division, Second Department Defendants not entitled to summary judgment.

In April 2012, during the course of his employment at the Rego Park Shopping Center in Queens, Plaintiff was injured when he was struck in the head by the door of a freight elevator (the “Elevator”), which moved downward without warning.  Plaintiff commenced a personal injury action against, among others, the defendants Nouveau Elevator Industries, Inc. (“Nouveau”), and Schindler Elevator Corp. (“Schindler”).  Plaintiff alleged, inter alia, that Nouveau and Schindler were negligent in their maintenance of the Elevator.

Upon completion of discovery, Schindler moved for summary judgment dismissing the complaint and any cross claims asserted. Nouveau separately moved for summary judgment dismissing the complaint and all cross claims.  In an order entered September 24, 2019, the Supreme Court denied both motions. Nouveau appealed and Schindler cross-appealed. 

“An 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.” Rogers v Dorchester Assoc., 32 N.Y.2d 553, 559 (1973); see Syrnik v. Bd. of Mgrs. of the Leighton House Condo., 198 A.D.3d 835, 836 (2d Dep’t 2021); Barcliff v. Schindler El. Corp., 197 A.D.3d 1228, 1229 (2d Dep’t 2021); Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 762 (2d Dep’t 2016). 

Here, Nouveau and Schindler failed to make a prima facie showing of an entitlement to judgment as a matter of law.  The evidence submitted in support of their respective motions failed to demonstrate that either exercised reasonable care to discover and correct a condition which ought to have been found. This evidence, which included vague and unspecific maintenance records kept by Schindler and Nouveau, as well as Plaintiff's testimony that no warning bell sounded prior to the door coming down and striking him in the head with such force that he fell to the floor, was insufficient to establish that the Elevator door was functioning properly at the time of the accident.  Contrary to their assertions, neither Schindler nor Nouveau demonstrated a lack of notice of the alleged defective condition of the Elevator door. 


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. Friedhaber
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