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NOTE FROM THE EDITOR:
In just over a week, on April 8th, the solar eclipse will occur, with Buffalo being directly in the path of totality. An estimated one million visitors from across the country and world are expected to travel to Buffalo to experience this moment at 3:18 pm that day. While many businesses are planning celebrations for that day, Labor & Employment Attorney Amber Storr was recently interviewed by Business First on potential liabilities employers should consider when preparing for the eclipse. At our firm, we are handing out eclipse glasses to all our employees so that we are all ready to take in this rare event. In case you’re curious, or want to know about the path, here is a link to NASA.
This month, we welcome new columnist Jennifer I. Lopez, who will be filling in for the next few months as Kaitlin A. Sines is out on maternity leave. Kaitlin and her husband welcomed a beautiful baby boy earlier this month! We are excited to welcome Jennifer to Premises Pointers! In other premises news, columnist Scott Kagan joined Chris Potenza to present on “The Ups and Downs of Elevator and Escalator Litigation.” Their presentation, which outlines a framework for navigating elevator/escalator accident litigation, including potential claims and defenses, is available here.
Lastly, we close with the sad news that Diane Bosse, special counsel at Hurwitz Fine, died tragically in a car accident in Florida this month. Diane was an accomplished insurance coverage and appellate attorney, and noted for her work not only on complex legal matters, but in education. She dedicated a substantial part of her life to bar and legal education, including 41 years of service to the New York Board of Law Examiners. Just last year, Diane received the American Bar Association's prestigious national Robert J. Kutak Award. The Kutak Award is presented annually to honor an individual who has made significant contributions to the collaboration of the legal academy, the bench, and the bar. Diane was named one of the New York Law Journal’s inaugural Top Women in Law for 2016—one of only 30 women honored statewide. She was honored as Lawyer of the Year by the Bar Association of Erie County and received their Award of Merit, the Distinguished Alumnus Award for Public Service from the University at Buffalo Law Alumni Association, the Defense Trial Lawyer of the Year from the Defense Trial Lawyers of WNY, the New York State Bar Association Award for Excellence in Public Service, the Chair’s Award from the National Conference of Bar Examiners, and the Lamplighter Award from Eighth Judicial District Gender & Racial Fairness Committee.
Diane leaves behind her husband and many friends and peers from her more than 45 years as a practicing attorney. Diane’s passing is not only a loss to the legal community but also to all who had the privilege of knowing her. We were incredibly fortunate to have Diane part of our firm. Her passion, leadership, humor, grace, and unwavering dedication to education will be deeply missed.
-Jody
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 Liz Midgley at emm@hurwitzfine.com 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]
The courts were busy this past month issuing quite a few decisions largely in favor of retail defendants. There never seems to be a shortage of fact patterns and this month we have claimed dangerous conditions caused by a disinfectant wipe, slippery flooring, and poor directions provided by a restaurant worker. A continued takeaway is that a defendant's chances of winning summary judgment in a negligence case are significantly stronger in federal court than state court.
03/12/24 Kirbaran v. Target Corporation
United States District Court, Southern District of New York
The existence of a “dry” disinfectant wipe on the floor is deemed insufficient to establish constructive notice – Target’s summary judgment motion was granted.
The case involves a plaintiff who slipped and fell in a Target store. The incident occurred when the plaintiff slipped on a disinfectant wipe in the toy department aisle. Both parties disputed the moisture level of the wipes and how long they remained wet. The plaintiff suffered injuries and filed a negligence claim against Target, alleging failure to maintain the premises and failure to warn of the hazardous condition.
Target filed for summary judgment, arguing there was no evidence it created the dangerous condition or had notice of it. Plaintiff argued that because the wipes were dry after the fall, the logical conclusion is that they were on the floor for a sufficient length of time prior to the accident to permit Target’s employees to discover and remedy the condition. The court explained the legal standards for summary judgment and negligence under New York law. It concluded that the plaintiff failed to provide sufficient evidence to support her claims. The court noted that evidence of a failure to clean or lack of policies regarding wipe disposal did not constitute affirmative acts of negligence. Additionally, there was no evidence indicating how long the wipe had been on the floor before the accident, leading to a lack of constructive notice.
Ultimately, the court granted Target's motion for summary judgment, finding that the plaintiff did not meet her burden of proof to establish negligence on Target's part.
03/19/24 Woodson v. Home Depot U.S.A.
United States District Court, Eastern District of New York
Plaintiff’s motion to vacate a confidentiality order regarding video surveillance was granted.
Plaintiff Edward Woodson filed a motion to vacate a confidentiality order regarding video surveillance footage produced by Defendant Home Depot. Woodson alleges that an employee of Home Depot assaulted him at one of their retail locations. The court initially issued a confidentiality order to allow the litigation to proceed pending further discussion on confidentiality issues. However, Woodson filed a motion to vacate this order, which the court treated as a motion for a protective order by Home Depot. Home Depot argued that releasing the video could compromise its security system and violate the privacy of third parties depicted. However, the court found that Home Depot failed to demonstrate sufficient reasons to justify maintaining the confidentiality order. Home Depot's concerns about the security system were deemed speculative, as disclosing a single video was unlikely to reveal enough information to undermine security measures. Additionally, the court rejected Home Depot's argument regarding privacy rights, stating that the public is generally aware of security cameras in retail stores and that Home Depot provided no evidence that Woodson intended to widely disseminate the video. Therefore, the court granted Woodson's motion to vacate the confidentiality order.
03/15/24 Akter v. Target Corporation
United States District Court, Eastern District of New York
Plaintiff’s own expert demonstrated that her fall likely did not occur inside Target’s store but rather on adjacent flooring outside the store – Target’s summary judgment motion was granted.
Plaintiff Shirin Akter alleged injuries from a slip and fall incident at Queens Place Mall. Shirin Akter visited Queens Place Mall with her family, where she allegedly slipped and fell. The exact location of the fall was uncertain, with conflicting statements from Akter and her family members. Akter filed a lawsuit against Target Corporation for negligence, but Target moved for summary judgment, arguing that Akter failed to provide sufficient evidence to support her claim.
The court found that Akter failed to present evidence of a hazardous condition created by Target or of Target's knowledge of any dangerous condition. Despite inconsistencies in Akter's statements about the location of the fall, the court assumed, for the purpose of the summary judgment motion, that the fall occurred inside Target. However, Akter could not provide evidence of what caused her fall or that a dangerous condition existed at the time. Significantly, Plaintiff’s own expert added to the confusion. A professional engineer retained by Plaintiff, conducted an inspection of the floor leading from the Mall’s parking garage to Target. Fein produced a report, dated November 11, 2020, which states that Plaintiff “slipped and fell adjacent to the Target store” The court noted that Akter's withdrawal of expert opinion regarding the condition of the floor, along with the lack of evidence showing a dangerous condition at the time of the fall, led to the conclusion that Akter had not met her burden of proof.
03/12/24 Mellin v. Nerari LLC
United States District Court, Southern District of New York
Defendant restaurant’s motion for summary judgment denied as to negligence claim but granted with regarding to wrongful death and discrimination claims.
The complaint Plaintiff Nisa Mellin, both individually and as the Executrix of her late husband's estate, alleges negligence and discrimination on the basis of disability against Defendant Nerai LLC. Mr. Mellin, who suffered from psoriatic arthritis and had undergone knee surgery, fell and injured his knee after being directed by a restaurant employee to use the downstairs restroom. The Defendant restaurant's motion for summary judgment on the negligence claim was denied. Plaintiff has raised triable issues of fact regarding whether Defendant breached its duty of care by directing Mr. Mellin to the downstairs restroom rather than pointing him to another restroom that did not involve stairs.
Defendant's motion for summary judgment on the wrongful death claim is granted due to lack of evidence linking Mr. Mellin's death to Defendant's actions. Defendant’s motion for summary judgment related to the disability discrimination claim wa also granted because the Plaintiff lacked standing to bring the federal ADA claim. The state and local law claims fail due to lack of evidence supporting a viable theory of disability discrimination.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
One week it is snowing, and the next day, it is 60 degrees; welcome to spring in Western New York! Discovery cases are still sparse these days, but we found one interesting dispute involving whether plaintiff was perpetuating a fraud on the court because he testified at his deposition that he had never received treatment for his neck and back before the incident, but those claims were contradicted by his prior medical records. Luckily for plaintiff, he disclosed his prior medical records before his deposition.
Fraud on the court involves willful conduct that is deceitful and constructionistic, which injects misrepresentations and false information into the judicial process so serious that it undermines the integrity of the proceeding. To demonstrate fraud on the court, the nonoffending party must establish by clear and convincing evidence that the offending party has acted knowingly to hinder the fact finder’s fair adjudication of the case and his or her adversary’s defense of the action. Additionally, dismissal is an extreme remedy, most appropriate in cases where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party and where the conduct is perpetuated repeatedly and willfully (see CDR Creances S.A.S. v Cohen, 23 NY3d 307 [2014]).
If you have any good stories involving fraud on the court, please reach out and share your experiences. Until next issue, enjoy the warm or cold weather, depending, of course, on what you like!
Marc
03/20/24 Fuentes v 257 Toppings Path, LLC
Appellate Division, Second Department
Plaintiff’s testimony that he had never received treatment for his neck or back, which were contradicted by his medical records, was held to be not committing a fraud on the court because, before his deposition, he disclosed his prior medical records during discovery.
Plaintiff was allegedly injured when he fell 16 feet through an uncovered opening in an attic floor while performing construction on defendant’s property. Plaintiff allegedly sustained severe injuries to his neck, back, and left shoulder because of the fall. During his deposition, he testified that he had never received treatment for his neck or back or felt pain in his neck or back prior to the accident at issue – claims that were contradicted by his medical records exchanged during discovery.
The trial court granted defendants and third-party defendant’s motion for summary judgment seeking dismissal of the complaint on the grounds that plaintiff perpetuated a fraud on the court. Thereafter, the trial court granted plaintiff’s motion for leave to reargue and renew, and, upon reargument and renewal, denied those motions.
The Second Department affirmed the trial court’s decision to grant plaintiff leave to reargue as the court misapprehended the facts that plaintiffs had supplied discovery regarding the prior treatment of plaintiff’s neck and back prior to his deposition. Because of that fact, the Court held that defendants and third-party defendant failed to establish, by clear and convincing evidence, that plaintiff’s deposition testimony was knowingly designed to hinder the factfinder’s fair adjudication of the case and their defense of the action. Accordingly, upon reargument and renewal, the Court determined the trial court properly denied those branches of defendants and third-party defendant’s motions to dismiss the complaint on the grounds that plaintiff perpetuated a fraud on the court.
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Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]
On April 8, 2024, a total solar eclipse will cross North America for the first time since 2017. A total solar eclipse occurs when the Moon passes between the Sun and the Earth. This results in the Moon blocking the face of the Sun. A total eclipse happens occasionally due to the Moon’s orbit, which does not orbit in the exact same plane as the Sun and Earth. While all 48 lower U.S. States will be able to view portions of the eclipse, the path of totality crosses over many major U.S. cities from Dallas through BUFFALO! Hopefully, my Buffalo colleagues will use proper eye protection before stepping outside.
I hope you enjoy the ride.
Scott
3/20/2024 Luisi v. Metropolitan Transportation Authority, et ano.
Supreme Court, New York County
Stationary Escalator Not Inherently Dangerous
Plaintiff alleged that he tripped and fell while descending a stationary escalator (the “Escalator”) at the street entrance of the subway station known as South Ferry Station (the “Station”). Plaintiff alleged that Defendants, Metropolitan Transportation Authority and New York City Transit Authority (“NYCTA”; collectively, “Defendants”), owned, operated, managed, maintained, controlled, and repaired the Escalator. Defendants admit that NYCTA operated and maintained the Escalator.
Plaintiff testified that he used the Station 2x/month for 18 months. On the date of incident, Plaintiff stated he “[s]tepped on the [E]scalator with [his] left foot, looked at a sign adjacent to the top of the escalator that said that the elevator was out of service.” The Escalator was not working, and Plaintiff continued downward. Plaintiff hit his head and lost consciousness. He woke up at the bottom of the escalator, surrounded by police and emergency service.
Plaintiff alleged that when he stepped on the Escalator, he was "adverted by a sign at the top of the escalator.” The sign said "Please excuse the inconvenience. This elevator is out of order.” Plaintiff stated that at no point did he note whether the Escalator was operating. Plaintiff testified that gravity caused him to fall from the top step of the Escalator to the bottom. He alleged that the inoperable Escalator “caused [his body] to propel to the bottom of the escalator.” No other reason was provided for the incident.
Plaintiff commenced this action on June 25, 2018, alleging, inter alia, that he “had the expectation that the [E]scalator ES369 would be in motion moving [sic], but it was still and as a result, [he]... fell down the [E]scalator, resulting in his suffering severe, personal and permanent injuries, all as a result of the negligence, carelessness, recklessness and gross negligence of' [D]efendants.
Defendants moved for summary judgment. Defendants argued that the Escalator was not a reasonably foreseeable hazard and that they had no duty to warn or protect Plaintiff from a condition that posed no reasonably foreseeable hazard.
A temporarily stopped escalator, without more, does not constitute a reasonably foreseeable hazard, and is not inherently dangerous. Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558 (1st Dep't 2010), lv denied 15 N.Y3.d 704 (2010). In Adamo, a case in which the plaintiff tripped and fell while ascending the stairs of a stopped escalator, the Court held that “[t]he temporarily stationary stairway did not present a reasonably foreseeable hazard, particularly in the absence of any allegation that it was in ill repair ... or that any of the steps, including the one on which she tripped, was defective or covered with debris.” Id, 71 A.D.3d at 558.
In Schurr v. Port Authority of New York & New Jersey, 307 A.D.2d 837, 838 (1st Dep't 2003), the plaintiff tripped and fell while descending a stopped escalator. There, the Appellate Division, First Department concluded that the record contained no evidence warranting the inference that the stopped escalator posed a reasonably foreseeable hazard to those who used it in the manner of a staircase to reach the next floor. The First Department reasoned that the “[t]he spacing of the stationary escalator rises was open and obvious.” In such circumstances, defendants “were under no duty to warn of or otherwise protect plaintiff from a condition that posed no reasonably foreseeable hazard.”
Here, Plaintiff testified that gravity caused him to fall from the top step of the stopped escalator to the bottom, and that there was no other reason for his fall. Citing to the relevant case law, the Supreme Court found that the stationary condition of the escalator was “open and obvious.” Thus, there was no ground to conclude that the risers were not safely traversable in the exercise of ordinary care. Plaintiff did not claim that any of the steps were defective or covered in debris or that his fall was caused by inadequate lighting. Defendants demonstrated that the stationary Escalator did not present a reasonably foreseeable hazard. Defendants established that they were under no duty to warn of or otherwise protect Plaintiff from a condition that posed no reasonably foreseeable hazard.
To the extent Plaintiff argued that he was distracted by a sign next to the Escalator indicating that an elevator, not escalator, was out of service, the sign is not so distracting that its mere existence makes an open and obvious condition such as a stationary escalator any less open and obvious. Vasquez v. Yonkers Racing Corp., 171 A.D.3d 418, 418 (1st Dep't 2019). Any reasonable observer would have noted that the Escalator was not moving. The erroneous sign “merely furnished the condition or occasion” for Plaintiff's fall rather than constituting one of its causes, as Plaintiff could have looked at the sign at any point before he stepped onto the stopped escalator.
Defendants’ Motion for Summary Judgment granted.
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Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo amc@hurwitzfine.com
It’s hard to imagine that the first quarter of the year is over, the time has absolutely flown by this past year. However, I am happy to welcome Spring. The sun is out (and stays out past 4PM), I can take my senior dog for long walks outside, and we are one step closer to pool/beach weather and backyard BBQs.
This month, both decisions reported on are from the Second Department.
March 13, 2024 Curto v Kahn Property Owner, LLC
Appellate Division, Second Department
Plaintiff’s claim can still survive even if he cannot identify the cause of his fall.
Plaintiff fell while descending the grand staircase at the Oheka Castle in Huntington, NY. Defendant moved for summary judgment, on the ground that plaintiff didn’t know what caused his fall; the lower Court granted defendant’s motion.
The Appellate Division disagreed and reversed the lower Court’s decision. The Appellate Division held that plaintiff’s testimony created a question of fact. Although plaintiff admitted to not knowing what caused his fall, which generally is fatal to his case, he also testified that he was “looking for a handrail” before descending the final set of steps and saw the were none, accessible. Thus, the Appellate Division held that in light of this testimony regarding there was a question of fact as to whether the absence of a handrail was a proximate cause of plaintiff’s injuries.
March 20, 2024 Cerar v Jefferson Valley Mall Limited Partnership, et al
Appellate Division, Second Department
A defendant can still win summary judgment when there is a battle of the experts.
On December 17, 2016, plaintiff slipped and fell on ice in the parking lot of the Jefferson Valley Mall in Yorktown Heights. The lower Court dismissed the plaintiff’s complaint as to the various defendants.
The Appellate Division held that the “Mall defendants” were entitled to summary judgment as the plaintiff’s deposition testimony, meteorologist report, certified meteorological records, and the National Weather Service special weather statements demonstrated that the ice on which plaintiff fell was caused by the ongoing temperature fluctuations and drizzle. Plaintiff’s expert, who opined that the ice was formed due to melt and refreeze of nearby snow piles, was speculative. Regarding the snow-removal contractor’s motion for summary judgment, the Appellate Division granted its motion as plaintiff failed to allege facts in her pleadings that would establish the possible applicability of any of the Espinal exceptions.
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School District & Municipal Liability
By: Jennifer I. Lopez [email protected]
Greetings:
I am covering this column for Kaitlin Sines who welcomed an adorable baby boy this month! How fitting that she should usher in the Spring season with new life.
This is my first column; may it bring in value what it lacks in quip compared to my fellow columnists. Also, before you ask – of course this is not “JLo” the celebrity reporting about recent school district and municipal liability cases, but don’t we all wish it was.
February 14, 2024 J.B. v Monroe—Woodbury Central School District, et al.
Appellate Division, Second Department
Defendant’s evidentiary submissions shunning its own actions are insufficient to eliminate triable issues of fact for summary judgment award.
A former student of a school district brought an action against the district under the Child Victims Act, alleging the district was negligent in allowing a school-employed physician to sexually abuse the student during a medical examination. The Second Department affirmed the trial court’s decision denying the school district’s motion for summary judgment, finding that the district failed to eliminate triable issues of fact specifically regarding the element of breach in this tort action.
As we know, a school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent and will be held for foreseeable injuries proximately related to the absence of adequate supervision. The standard for determining whether a school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation armed with the same information.
Here, the school’s submissions failed to eliminate triable issues of fact as to whether it was negligent to permit plaintiff student to be examined behind closed doors with a physician during medical examination because that conduct violated its own policy and because two of its witnesses also testified that such conduct would be inappropriate. The appellate court highlighted that a jury could reasonably conclude that the very purpose of the school district’s policy was to shield vulnerable school children from acts of sexual violence and the district’s conduct contravened that protective purpose, creating a foreseeable harm and thus precluding judgment as a matter of law for the district.
February 9, 2024 Graham v. City of Syracuse [note that as of 03/26/2024 the procedural history synopsized on Westlaw is incorrect]
Appellate Division, Fourth Department
Defendant City not liable for Plaintiff’s injury because defect it may have caused took too long to develop; and defendants construction contractors not responsible because their work was not performed at or near where Plaintiff fell.
The Appellate Division, Fourth Department recently granted respective summary judgment motions made by Defendant City of Syracuse (the “City”) and Defendants, construction contractors J.K. Tobin Construction Corp. Co., Inc and Salt Springs Paving Corp. (“contractors”), in an action by a pedestrian plaintiff (and her husband) who sought to recover for injuries allegedly sustained when she tripped and fell on an uneven city roadway.
As to Defendant City of Syracuse, the Appellate Division found that it was not liable for the plaintiff’s injuries because it did not have prior written notice of the alleged dangerous condition as required by the City’s charter, and no exceptions applied. Specifically, plaintiffs failed to show that an exception applied because they did not raise a triable issue of fact that the City created the allegedly dangerous condition through an affirmative act of negligence that immediately resulted in the dangerous condition.
For the written notice exception to have applied, the Court focused on the temporality and immediacy between the City’s act and existence of the condition. Here, although the record suggested the City may have created a dangerous condition by failing to replace a temporary cold patch with a permanent repair, the allegedly dangerous condition had developed over more than one year and did not “immediately result” from the City’s work. Accordingly, the Court granted the City’s motion for summary judgment and dismissed the complaint against the City.
As for the Defendants construction contractors, at issue was whether the named contractors as third parties to the contract owed a duty of care to the plaintiff. The contractors had completed projects in the City but the Court agreed that they did not owe a duty of care to the plaintiff and no exceptions applied because the construction contractors did not perform any work at or near where the plaintiff fell.
Overall, this case reminds me of the old axiom that “there’s a time and place for everything.”
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NEWSLETTER EDITOR
Jody E. Briandi
[email protected]
ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]
Marc A. Schulz
[email protected]
Scott D. Kagan
[email protected]
Patrice C.S. Melville
[email protected]
Ashley M. Cuneo
[email protected]
Kaitlin A. Sines
[email protected]
Jennifer I. Lopez
[email protected]
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Hurwitz Fine P.C.
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