Premises Pointers - Volume VII, No. 12

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.

NOTE FROM THE EDITOR:

With May being Mental Health Awareness Month, Hurwitz Fine’s Wellness & Culture Committee held a “Create Your Own Wellness Kit” event. As stress management is different for every person, attorneys and staff were encouraged to make their own individualized bags with items such as stress balls, aromatherapy, tea, sour candy and fidget toys. Mental Health Awareness month addresses the challenges faced by millions of people. The theme of this year’s Mental Health Awareness Month is “Take the Moment.” Taking the moment aims to encourage open dialogue, empathy, and understanding. In the legal industry, we continue to prioritize mental wellbeing as burnout can be common. While the legal environment is often filled with demands, deadlines and stressors, this month, and every month, remember to take the moment to check in with yourself and with others around you.
 
In firm news, we are proud to announce that our Melville Resident Attorney Brian F. Mark has been elected to the firm’s Board of Directors and has been promoted to a Shareholder. Brian, who has led our Melville office since 2017, has significantly helped to grow our downstate presence the past several years, expanding the firm’s capabilities and geographic reach. Brian works closely with our attorneys in Connecticut, Albany, and other areas within New York State, and handles both Coverage and Litigation work. Congratulations, Brian!
 
Switching gears, we were proud to be included in the Harmonie Group’s Significant Cases Publication for three victories in 2023 in the areas of Insurance Coverage, Trucking and Product Liability.

• Second Circuit Returns to Traditional New York Approach in Applying “Horizontal Exhaustion” vs “Vertical Exhaustion” Where Other Insurance Applies
• Plaintiff Seeks $5M in Damages from High-Speed Trucking Accident
• Pour It Out: Plaintiff’s Lost Wine Profits Claim Barred by the Economic Loss Doctrine

Lastly, litigation attorney Chris Potenza has recently put together a presentation on juries post-Covid, “Navigating the New Damages Landscape: Strategies for Combating Aberrational Verdicts in a Post-Covid Politically Charged Environment.” The rise in claims costs and seemingly proliferation of nuclear verdicts known as “social inflation” began prior to the COVID-19 pandemic. Changing jury attitudes in a post-pandemic politically charged environment has only compounded the issue. This training explores the root causes of social inflation and addresses strategies to address it. This program is being presented at the Harmonie Group’s 2024 Northwest Arkansas Transportation Seminar on June 12^th.  If you are unable to make it to Arkansas, contact Chris to schedule this interactive 30 minute presentation for your team. 
 
With June 1^st just a day away, it’s safe to say enjoy the start of summer!

-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. 

Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] 

05/06/24      Salazar v. Wal-Mart Stores East, LP
United States District Court, Southern District of New York
Defendant’s motion for summary judgment was granted because plaintiff failed to offer any evidence on constructive notice that established how long the spill was on the floor before the plaintiff encountered it.

Plaintiff Salazar slipped and fell near the store's ice machine after completing her purchase. She attributed her fall to "spilled water" but did not see the water before falling and did not know how it got there or how long it had been on the floor. Curt Taylor, an assistant store manager, testified that employees are trained to look for spills and either guard large spills and call maintenance or clean small spills themselves. Taylor did not observe any water near the ice machine before Salazar's fall and knew of no issues with the ice machine that could have caused a spill. Walmart provided two versions of surveillance video. The footage showed multiple people, including Taylor, walking past the ice machine without noticing any hazard. Salazar's fall occurred within a few minutes after a man was seen taking ice bags from the machine. The video evidence did not show how long the water was on the floor, and the court found that the five to six minutes that potentially elapsed were insufficient to establish constructive notice under New York law. Therefore, the court granted Walmart's motion for summary judgment, concluding that Salazar did not raise a triable issue of material fact regarding Walmart's constructive notice of the spill.

05/22/24      Muniz v. SPO Restaurant
Appellate Division, Second Department
Despite falling through a floor at defendant’s restaurant, plaintiff's motion to dismiss defendants' comparative fault affirmative defense was denied; however their assumption of risk defense was dismissed.

Plaintiff appealed an order from the Supreme Court, Bronx County, which denied her motions for summary judgment on liability against SPO Restaurant, LLC, and Bronx Landmark, LLC, and to dismiss the defendants' second and seventh affirmative defenses. The plaintiff claimed she was injured when the floor collapsed beneath her at a restaurant/bar operated by SPO Restaurant, LLC, and owned by Bronx Landmark, LLC. The defendants' answer included defenses of comparative negligence and assumption of the risk. The plaintiff sought summary judgment on liability and dismissal of these defenses. The Supreme Court denied the plaintiff's motions. The court found that the plaintiff had established a prima facie case of the defendants' liability, supported by her affidavit stating she fell through a collapsed tile floor. However, the defendants raised a triable issue of fact through an employee's affidavit, claiming the plaintiff stumbled and that he created the floor opening after her fall. The court also upheld the defense of comparative negligence, as the plaintiff did not prove it lacked merit. However, it dismissed the assumption of risk defense, finding it inapplicable as the doctrine generally pertains to athletic and recreational activities, not the circumstances of this case.

05/23/24      Christie v. Hyatt Corporation, et al.
United States District Court, Eastern District of New York
Hotel defendants successfully moved to dismiss the action based on jurisdictional grounds - this case is a good review of personal jurisdiction.
 
In the diversity-jurisdiction tort action, Nickolas and Donna Christie sued multiple defendants, including Hyatt Corporation, alleging negligence related to an assault and robbery at a resort in the Dominican Republic. The defendants moved to dismiss the case for lack of personal jurisdiction, improper venue, and failure to state a claim. The court granted the motion to dismiss for lack of personal jurisdiction. The Christies, residents of Staten Island, were assaulted and robbed at Dreams Macao Beach Punta Cana Resort. Nickolas Christie was stabbed during the incident. The plaintiffs claimed the defendants were negligent in managing and supervising the resort. The court had to first address personal jurisdiction under Rule 12(b)(1). To establish personal jurisdiction, the plaintiffs needed to show either general or specific jurisdiction. General jurisdiction requires a defendant to be "at home" in the forum state, meaning it must be incorporated or have its principal place of business there. The plaintiffs could not show that any defendant was incorporated or had a principal place of business in New York. Despite the defendants having significant business operations in New York, this was insufficient for general jurisdiction under the precedents set by Daimler AG v. Bauman and subsequent cases. Specific jurisdiction requires the claim to arise out of or relate to the defendant's activities in the forum state. The plaintiffs' injuries occurred in the Dominican Republic, not New York. Booking the resort from New York did not establish a sufficient connection. The Second Circuit has consistently dismissed similar cases for lack of specific jurisdiction when the injury occurred outside the forum state. The court also considered New York's long-arm statute (§ 302(a)(1)-(4)), finding none of its provisions applicable. The injury's situs was in the Dominican Republic, not New York.
 
In conclusion, the court dismissed the case for lack of personal jurisdiction, stating that under current law, jurisdiction over the defendants in New York was inappropriate. The plaintiffs were advised they could pursue their claims in a jurisdiction where the defendants are incorporated, have their principal place of business, or where the injuries occurred.

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]

Hello Subscribers,
 
I hope you enjoyed your Memorial Day weekend and thank you to all who served! This month, I report on two interesting cases, one of which is a cautionary tale for those who dabble with appeals and the failure to include all relevant documents that were before the trial court. The other case involves a motion compel a site inspection under CPLR 3103(a), which provides:
 
Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court.
 
Thus, a court’s power to limit otherwise proper use of a disclosure device should be exercised only for the purpose of avoiding “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.” While being present at an site inspection, if a party so chooses, will cause that party to incur some “expense,” the relatively modest expense of appearing at a site inspection cannot be deemed unreasonable in the context of litigation over serious personal injuries.
 
Please reach out with any discovery stories you may have, including those under CPLR 3103(a). Until next issue, enjoy the warmer weather!
 
Marc

 
04/25/24          Balsamello v Structure Tone, Inc.
Appellate Division, First Department 
Defendant allowed the opportunity to inspect the site of plaintiff’s incident, despite her objections.
 
Plaintiff, an employee of nonparty Goldman Sachs, injured herself at work, while in a photocopier room, when she stepped into a vent hole in the floor from which a diffuser cover had become displaced. Before the incident, S&F, the carpet and flooring subcontractor, had removed an old carpet and laid down a new carpet in the photocopier room. During discovery in plaintiff’s against S&F and the general contractor, S&F requested permission to conduct an inspection of the site of plaintiff’s incident. The premises owner did not object and, initially, plaintiff also did not object. However, several months later, plaintiff withdrew her consent to the inspection.
 
The trial court denied S&F’s motion to compel the inspection because the displaced swirl diffuser cover had been replaced and, thus, the inspection S&F sought was unlikely to lead to useful information. The First Department unanimously reversed the trial court’s decision and granted the motion. While the replacement of the swirl diffuser cover might reduce the likelihood that a site inspection will produce evidence useful to S&F’s defense, it does not make it certain that an inspection will be useless. Plaintiff’s contention, adopted by the trial court, is speculative and does not furnish grounds for denying S&F the right to conduct the inspection. It is for S&F, not its adversary, to determine whether the inspection of the site of the incident is sufficiently likely to produce relevant information to be worth S&F’s time and effort.
 
 
05/08/24          Bing v Myrtle 6, LLC
Appellate Division, Second Department
Failure to include all relevant documents for appellate review that were before the trial court results in dismissal of defendant’s appeal.
 
The trial court denied defendant’s motion, pursuant to CPLR 2201 to stay the trial, pursuant to 22 NYCRR 202.21(e) to vacate the note of issue, and to compel discovery, contending that plaintiff’s previous attorney was “mentioned in a prior federal criminal prosecution involving a now proven insurance fraud scheme involving staged trip and fall accidents.” Further, defendant alleged that there was a “related criminal case pending against [plaintiff’s previous attorney] in connection to the insurance fraud scheme.” Although defendant’s affirmation in support of its motion stated that the details of the fraud scheme were “outlined in prior motions with exhibits,” none of those prior motions or exhibits were included in the record on appeal.
 
The Second Department affirmed the trial court’s decision to dismiss the appeal, finding that the record is inadequate for meaningful appellate review because there were no documents allegedly demonstrating that plaintiff’s former counsel was involved in a fraud scheme. Additionally, the record did not contain a copy of the complaint in this action, or defendant’s answer. Since those omissions have rendered meaningful appellate review of the court’s order “virtually impossible,” the appeal must be dismissed.
 

Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]

Hi Readers,

I hope you had a great Memorial Day Weekend. Although this is the unofficially start to the summer, I hope everyone remembered the true meaning of this weekend by honoring those who served in the Armed Forces and made the ultimate sacrifice. I also want to also take a moment to thank everyone who has or is serving.
 
This month’s cases come from the First and Third Departments. Both cases reiterate the notion that Plaintiffs’ inability to identify the cause of his/her fall is fatal to their case.
 
05/23/24      Martinez v Walmart, Inc., et al
Appellate Division, Third Department 
Speculation, by Plaintiff, regarding the case of her fall was insufficient to defeat defendant’s motion for summary judgment.
 
On a rainy day, Plaintiff slipped and fell when she stepped off the nonslip mats to walk around a patron at a store. Defendants moved for summary judgment arguing that Plaintiff could not identify the alleged defect that caused her fall, or that defendants had notice of the alleged defect. The lower Court granted defendants’ motion for summary judgment; the Appellate Division affirmed.
 
The Appellate Division agreed that defendants established their prima face entitlement to summary judgment through surveillance videos and plaintiff’s deposition testimony. Plaintiff testified that because it was rainy on the day of her accident she believed she slipped due to wet conditions because her clothes were wet. In opposition, Plaintiff introduced defendants’ witnesses deposition testimony wherein they testified that they place the mats down when it is raining. The Appellate Division found this testimony failed to create a question of fact sufficient to defeat defendants’ motion and upheld the lower Court’s ruling.
 
05/08/24      Lucas v Genting New York, LLC, et al
Appellate Division, Third Department 
Alleged code violations or defects identified in Plaintiff’s expert’s affidavit are insufficient to defeat defendant’s motion for summary judgment, when Plaintiff testified she didn’t know the cause of her fall.
 
Plaintiff fell on an exterior walkway within the property of defendant, Genting. Genting moved for summary judgment seeking to dismiss Plaintiff’s complaint on the grounds that she didn’t know what caused her to fall. The lower Court granted Genting’s motion, and the Appellate Division affirmed the decision.
 
Both Courts held that Genting established a prima facie entitlement to summary judgment by demonstrating that the Plaintiff was unable to identify the cause of her fall. Plaintiff testified that she did not know if she slipped or tripped and fell and didn’t know what caused her to fall. Both the lower Court and the Appellate Division agreed that Plaintiff failed to raise a triable issue of fact sufficient to defeat defendant’s motion. Moreover, they held that it would be speculative to hold that any of the building code violations or dangerous conditions in Plaintiff’s expert’s affidavit were the proximate cause of Plaintiff’s fall.

School District & Municipal Liability
By: Jennifer I. Lopez [email protected]

05/03/24   Matter of Arbitration Between Buffalo Teachers' Fedn. and Bd. of Educ. of Buffalo City School Dist.
Fourth Department
Petitioner failed to show “manifest disregard of law” in seeking to vacate arbitration award because: (1) previous arbitration decisions inconsistent to ruling at bar were not necessarily applicable “substantive law”; and (2) the arbitrator’s distinction of said decisions to the underlying case in arbitration did not establish that said law was “well-defined, explicit, and clearly applicable to the case.”

We know arbitration awards are notoriously difficult to dispute, if not “largely unreviewable,” given the heavy burden a party seeking to vacate the award must carry to establish that an arbitrator exceeded its power. The Court of Appeals has iterated in dicta that “courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be a better one...even in circumstances where an arbitrator makes errors of law of fact, courts will not assume the role of overseers to conform the award of to their sense of justice.”

This was demonstrated in the above case where the Fourth Department reversed the Supreme Court’s decision that determined the arbitrator made an irrational award that manifestly disregarded the applicable substantive law to the parties’ dispute.

In applying the limited doctrine of “manifest disregard of law” to modify or vacate an award, the Supreme Court was required to show both that (1) the arbitrator knew of a governing legal principle but refused to apply it or ignored it altogether; and (2) said overlooked law was well defined, explicit, and clearly applicable to the case.

As to the first prong, the Appellate Division found the Supreme court erred in interpreting or qualifying the arbitrator’s prior inconsistent rulings (previously in petitioner’s favor) on a timeliness issue in the case as an applicable “legal principle” the arbitrator ignored. The Fourth Department explained that the effect to be given to an earlier arbitration award in later arbitration proceedings is the business of that forum.

For the second prong, assuming said previous rulings did count as applicable substantive law, the fact that the arbitrator considered but distinguished those arbitration awards did not establish that the arbitrator knew of a governing legal principle that was well defined, explicit, and clearly applicable; and yet ignored it altogether. Therefore, it was not established that the arbitrator manifestly disregarded applicable substantive law.

Further, the Supreme Court erred in vacating the award on the basis of irrationality. An award is irrational if there is no proof whatsoever to justify the award – even a “barely colorable justification” works. Here, the arbitrator issued a thoughtful opinion that considered the terms of the collective bargaining agreement, the evidence presented at the hearing, and prior arbitration awards.

Since petitioner additionally failed to meet its burden on alternative grounds for affirmance – including showing a violation of strong public policy or exceeding a specifically enumerated limitation of power, the Fourth Department reversed the Supreme Court’s decision, and confirmed the arbitrator’s award.
 
01/31/24        D. S., et al., v.  Sachem Central School District
Second Department
Defendant school district wins summary judgment for effectively showing, in part, that alleged hazardous condition in grass on school grounds was obvious and inherent to the nature of grass; and plaintiff failed to raise triable issue of fact because he and his expert “tripped up” on their testimony.
 
Plaintiffs – a student at Sachem Central School District, and the student’s mother – sued the school district for personal injuries the student allegedly sustained after he slipped on grass on school grounds during recess. The Supreme Court, Suffolk County, granted the defendant school district’s motion for summary judgment and dismissed the complaint. Plaintiffs appealed.

The Appellate Division, Second Department, affirmed the Supreme Court’s decision. Specifically, the defendant satisfied its burden of proof on a motion for summary judgment by showing that the alleged hazard condition of a grass field was open and obvious, not inherently dangerous, and was incidental to the nature of a grass field. Defendant also showed that the allegedly hazardous condition was not obscured by grass or debris, that the infant was not distracted at the time of his fall, and that it maintained the premises in a reasonably safe condition.

Plaintiff’s opposition failed to raise a triable issue of fact. In particular, the plaintiff’s expert did not set forth violations of applicable codes or industry standards, did not explain how he reached his conclusions, and did not establish how the alleged hazardous condition constituted a “trap.”

Moreover, the infant plaintiff’s deposition testimony did not raise a triable issue of fact because it presented “feigned issues of fact as to the nature of the alleged hazard.” His deposition testimony that he slipped on a depressed grate covered by mud, leaves and grass contradicted his earlier 50h testimony that he slipped in a puddle and landed on a grate.

Thus, the summary judgment award to the defendant school district was proper.

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]