Premises Pointers - Volume VII, No. 2

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 August around the corner, I hope everyone has been soaking up the sun and enjoying summer! In Hurwitz Fine news, our Long Island office continues to grow with the recent additions of two litigation attorneys, Ashley Cuneo and Patrice Melville. Ashley focuses her practice on general liability defense, including medical malpractice and NYS Labor Law. She has over 10 years of experience handling various cases including premises liability, construction accidents, motor vehicle accidents, and general negligence actions. Patrice defends businesses and individuals in a wide array of litigated matters, and has represented corporations and individuals in construction accidents and premises liability, property damage, and subrogation claims. She also brings a decade of experience to our office. We are excited to welcome them to the team and pleased to expand our work in the New York metro area!
 
In legal news, among the recent Supreme Court decisions is the case of Groff v. DeJoy, which imposes a new, increased burden on employers who receive a request to accommodate an employee’s religious beliefs. The standard is no longer whether the request would impose more than a “de minimis” cost on the employer, but whether the employer would have to incur a “substantial” increased cost. Labor & Employment Attorney Amber Storr updates on “Employers Now Have a Much Heavier Burden in Proving ‘Undue Hardship’ Related to Employee Requests for Religious Accommodation.” Should you have any Labor and Employment related questions or legal needs, feel free to reach out to Amber or our other team members.
 
Lastly in my role as Chair of the Law Practice Management Section of FDCC, I contributed to this year’s Insights Magazine on advancing DEI as a law firm leader and also what issues are on the horizon for law firms. My partner, Dan Kohane, also co-authored a piece on insurance coverage trends. You can read all three articles here. I also invite you to peruse the entire publication as it contains current articles from all substantive FDCC sections.
 
Enjoy the rest of your 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 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 Richelle R. Kloch 

 
7/19/23 Mccoy v. The TJX Companies, Inc.
United States District Court, Southern District of New York
Court granted defendant’s summary judgment motion after plaintiff fell when she sat on a stool in the front of the subject store, which toppled over since it was stacked on another stool.
 
Plaintiff brought an action for negligence after she sustained injuries at a TJ Maxx HomeGoods store. Upon entering the store, plaintiff noticed a stool for sale and approached it. This stool was on the floor approximately six inches in front of a display table that contained other merchandise. While standing less than six inches away, plaintiff placed her hand on the top of the stool and sat down. The stool toppled over, causing Plaintiff to fall to the ground. After the fall, Plaintiff discovered that the stool had been stacked on top of another identical stool. There was no surveillance video of the incident. Defendant moved for summary judgment.
 
In support of its motion, defendant offered evidence that the plaintiff did not know who placed the stools on the floor or who stacked them, nor did Plaintiff observe any TJX employees actively stocking merchandise in the vicinity before or after her incident. Additionally, the store’s merchandise manager indicated that he last inspected the area where Plaintiff fell approximately 40 minutes prior to the incident and did not observe any stools stacked on the sales floor. A Sales Associate corroborated this and claimed that he patrolled the sales floor that day to ensure all merchandise was properly displayed and last inspected the area where Plaintiff fell approximately 15 to 20 minutes prior to the incident. He also did not observe the stools stacked on the sales floor. Defendant also offered evidence that there were no prior complaints about the stools or the manner in which they were displayed, nor were there any prior similar incidents.
 
In opposition, plaintiff offered evidence that the manager responded to the scene and told her that the stools “shouldn’t have been there.” Plaintiff argues that this proves that the manager acknowledged that an employee had improperly stacked the stools. The plaintiff offered no other evidence that any of the employees placed the stools on the sales floor and stacked them prior to the incident. Plaintiff could not even offer any evidence that employees were actively stocking merchandise in the area of her fall. She also pointed to the fact that, prior to her fall, a security guard was standing approximately six to eight feet away from where she fell. However, she did not know whether he actually witnessed the fall or actually observed that the stools were improperly displayed. The court concluded that the mere assertion that the security guard was in a position to see the area where the stools were located, is insufficient to create a genuine issue of material fact regarding notice.
 
Ultimately, the court found that the plaintiff had not submitted any evidence that the defendant created the hazardous condition. Accordingly, defendant’s motion for summary judgment was granted.
 
7/7/23   Vadde et al. v. CVS Pharmacy
United States District Court, Eastern District of New York
Court denied defendant’s motion for summary judgment after plaintiff wife fell over the curled up edges of COVID “stay 6 feet apart” stickers in the subject store.
 
Plaintiffs, husband and wife, brought an action to recover for injuries wife allegedly sustained when she fell over the curled up edges of COVID “stay 6 feet apart” stickers that were claimed to be negligently placed on a carpeted floor by the defendant store. This was the wife’s first visit to the subject CVS store after the onset of the pandemic and, therefore, she did not know that the store put social-distancing stickers on the floor. As she walked past the cash registers, she claimed that she felt something stick under her left foot. When she tried to lift her foot, she fell. She did not see any spilled liquid or debris in the area, and her sari reached only to her ankles, so she concluded that she tripped over one of the social-distancing stickers, which was peeling off the floor. The defendant brought a motion for summary judgment, arguing that the record did not establish that a dangerous condition caused the fall, the defendant had no notice of the danger, and the plaintiff wife was the sole proximate cause of her accident. The court denied the motion.
 
The parties submitted evidence that the store’s manager confirmed that she saw a curled up social-distancing sticker within a couple of feet of where the wife fell. She also took a photograph of the sticker a day or two after the accident, which showed that the sticker’s edges were turned up. The manager further explained that the social-distancing stickers were placed on the carpeted floor about six months before the incident. The stickers measured six by eighteen inches, and their edges curled up from time to time. As far as the manager recalled, CVS did not have a policy to inspect the stickers at all. Occasionally, if she was walking by and saw a sticker curl up, she would cut it. She did not know if other employees did the same thing.
 
In support of its motion, defendant argued that the plaintiffs could not identify the alleged dangerous/defective condition that supposedly caused the accident since the wife indicated that she did not know why she fell, and the defect was too trivial to be considered dangerous. The defendant also argued that the plaintiffs did not demonstrate when or for how long the alleged dangerous condition existed prior to the fall, and that the plaintiffs failed to provide  any evidence as to the last time that the subject area was cleaned or inspected. The defendant raised yet another argument that the wife could have avoided the sticker if she were paying attention, appearing to raise two distinct doctrines—the open and obvious defect doctrine and the proximate cause doctrine. The defendant asserted that the video footage irrefutably shows that the wife was turning or walking backwards when she fell, which was the actual cause of her injuries.
 
The court found that although the plaintiff did not notice the sticker before she fell, the defendant cited no law that requires the plaintiff to be 100% sure of the cause of an injury even at trial, let alone at the summary judgment stage. Plaintiffs not only raised a triable issue of fact, but established that the sticker was the only thing near the plaintiff wife when she fell, there were no debris or spilled liquid in the area, the wife felt something sticky under her foot, and the wife’s sari was not long enough to cause her to trip. The court also did not find that the defect was physically insignificant, and the defect’s intrinsic characteristics and the surrounding circumstances did not magnify the dangers it posed. Here, the evidence showed that the sticker was originally measured six by eighteen inches; the curled-up edge appeared to be around one or two inches wide and two to three inches long; the curled-up edge was gray and difficult to distinguish from the surrounding gray carpet; and the edge was sticky enough so that the wife fell. Therefore, a reasonable jury might conclude that placing a sticker on a carpeted floor created a dangerous condition.
 
The court next pointed out that the defendant failed to argue that it did not create the dangerous condition or had actual notice. However, if the plaintiffs presented evidence that the defendant created the dangerous condition, they did not need to establish that defendant had actual or constructive notice of such condition in order to recover. The parties agreed that the defendant placed the social-distancing stickers on the carpeted floor, which showed that a genuine issue of material fact existed as to whether doing so created a dangerous condition. Additionally, the photographs showed that a CVS employee trimmed the sticker’s edges before the incident, and the manager testified that she had trimmed the stickers. This evidence sufficiently demonstrated that at the very least, the defendant had constructive notice of the defect, if not actual notice. Lastly, the court determined that, since genuine issues of material fact remained as to whether the sticker was a dangerous condition, the jury could find that the defect was not open and obvious. As for proximate cause, the relevant portion of the video lasted less than a second, the plaintiff appeared at the very edge of the screen, and the video quality was poor. Therefore, the surveillance video did not contradict aspects of plaintiff’s account. The defendant also did not identify any case in which a court concluded that a plaintiff who takes a step backwards is precluded from recovery as a matter of law. For these reasons, the motion was denied.

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

Hello Subscribers,

Courts are in full summer recess and discovery cases remain scarce, so this edition features consecutive discussions of Arons authorizations. For those readers who missed last month’s article, the history surrounding Arons authorizations and the seminal case, Arons v Jukotwiz, 37 AD3d 94 (2d Dept 2006) are analyzed in our retired partner’s column in this prior Coverage Pointer edition called Earl’s Pearls, named after Earl K. Cantwell, Jr., Esq. The Court of Appeals in Arons held that defense counsel may interview a plaintiff’s treating physician privately when plaintiff has affirmatively placed his or her medical condition controversy, albeit with some guidelines since HIPAA imposes procedural prerequisites unique to informal discovery of health care professionals. However, the Court of Appeals did not explicitly rule on whether an Arons authorization would apply to information about causation and liability. That issue was addressed by the Second Department in Yan v Kalikow Mgt, Inc., 2023 NY Slip Op 03817, 2023 WL 4482200 (2d Dept 2023), wherein the Appellate Court held that defendants were not entitled to an Arons authorization because the information sought were not about plaintiff’s diagnosis and treatment, but rather as to causation.

I’m still waiting to hear about your case(s) involving the use of/request for an Arons authorization, so please reach out and share your experiences. Until next issue, enjoy summer …

Marc


07/12/23 Yan v Kalikow Mgt., Inc.
Appellate Division, Second Department
Defendants not entitled to Arons authorizations for an ex parte interview with a medical provider as to the cause of the incident because the information sought was not related to plaintiff’s diagnosis and treatment.

Plaintiff walked in the street behind her vehicle, stepped onto the sidewalk, and walked into a tree wall near the passenger side door of her vehicle. She allegedly tripped and fell and fractured her right wrist. She was taken to the hospital, where she was treated by physician assistant Molina. The medical records prepared by Molina state that plaintiff reportedly “was attempting to enter her automobile on the passenger’s side when she tripped over a tree branch falling onto [her] outstretched right arm.”

At her deposition, plaintiff testified that she tripped when she stepped onto a paver with her right foot, which caused her to stumble. The trial court denied defendants’ motion to compel plaintiff to provide Arons authorizations to interview Molina, determining the inconsistent statement in the medical record prepared by Molin regarding the cause of the fall was not a sufficient reason to compel plaintiff to provide an Arons authorization, “which is limited in scope to plaintiff’s medical condition.”

The Second Department affirmed the trial court's decision, relying on the First Department case of Rucinski v More Restoration Co., Inc., 147 AD3d 485 (1st Dept 2017). Defendants in Rucinksi sought Arons authorizations so they could depose the medical providers who created the records containing conflicting accounts of how the incident occurred. The First Department affirmed the trial court’s decision denying defendants’ motion to compel because defendants sought “depositions of plaintiff’s medical providers pursuant to CPLR 3101(a)(4), not interviews, and [defendants] specified that the subject of the depositions was not diagnosis and treatment, but statements recorded in medical records relating to the cause of the incident. Accordingly, there was no need for plaintiff to provide HIPAA-compliant Arons authorizations. 

The Second Department adopted the reasoning of Rucinksi, in similarly denying defendants’ motion to compel and declined to extend the scope of Arons authorizations to include ex parte interviews with a medical provider about the cause of an incident. It must be noted that the Court further noted that “article 31 of the CPLR afford litigants numerous discovery devices with which they may obtain such information.” 

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

Nematomorpha (commonly referred to as horsehair worms or Gordian worms) are a phylum of parasites known for their unique ability to control the minds of their hosts.  While the adults are mostly free-living in marine environments, larvae are known to attach to hosts such as grasshoppers and crickets through ingestion.  The worms infect the brains of the host, causing the host to seek water and drown itself, returning the worm to its marine environment.  If this isn’t strange enough, a new study in Current Biology revealed that hairworms are missing 30% of genes that they were expected to have.  According to the study, the missing genes are responsible for the development of cilia (fine hair-like structures common to ever other known animal). 

Big month!  Four different cases.  Let’s dive in. 
 
I hope you enjoy the ride. 
 
Scott


6/22/2023  David Merrick v. Macerich Company, et al. 
Supreme Court, New York County
Elevator maintenance provider failed to meet its burden on summary judgment.
 
Plaintiff alleged suffering injuries while employed by a contractor at the Queens Center Mall (the “Mall”).  The Mall was owned by Defendants Macerich Company, Macerich Managements and Macerich Queens Limited Partnership (collectively, “Owner”).  Plaintiff alleged that the injury occurred when the gate of a freight elevator (the “Elevator”) fell on him.  Plaintiff filed suit against both Schindler Elevator Corporation and Thyssenkrupp Elevator Corporation (“TEC”).  The procedural history is extensive, but relevant here, TEC moved for, inter alia, summary judgment. 
 
TEC argued its entitlement to dismissal as there was no evidence that TEC has notice of any defect or issue with the Elevator.  TEC relied on witness testimony.  Specifically, Plaintiff’s testimony of no prior complaints, and Owner’s testimony that it received no complaints nor had Owner’s witness observed safety issues with the Elevator during daily inspections.  In opposition, Owner contends that: (1) TEC failed to produce an Affidavit from the mechanic assigned to the Elevator who would have personal knowledge of any safety issues; and (2) TEC did not submit an Affidavit from its elevator expert that TEC did not create the alleged defect based on its failure to properly maintain the Elevator.  In opposition, Plaintiff argued that TEC failed to submit proof of regular inspections before the incident.  In reply, TEC identified submitted proof of lack of notice through account history records and the testimony of Plaintiff and Owner.
 
A defendant moving for summary judgment in a case involving an alleged dangerous condition on premises establishes prima facie entitlement to dismissal with evidence that it did not have actual or constructive notice of the condition.  Moreover, "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 Assocs., 32 N.Y.2d 553, 559 (1973).  In the instant action, TEC established that Owner did not have notice of a defect and that Plaintiff did not complain about any defect before the incident.  However, TEC did not demonstrate that it lacked actual or constructive notice.  A review of the account history revealed that TEC made repairs to various elevators at the Mall, but the records did not contain information indicating whether it received a complaint about the Elevator prior to the incident.  Nor do the records show that the Elevator was regularly inspected and/or maintained.
 
Moreover, TEC’s own witness had no knowledge about TEC's maintenance of elevators at the Mall and did not know if any work or repairs were done to the Elevator before the incident, whether complaints were made about the Elevator, or whether there were prior accidents involving the Elevator.  See Stewart v World Elev. Co., Inc., 84 A.D.3d 491, 495 (1st Dept 2011).  Thus, TEC relied on gaps in Plaintiff and Owner’s s proof, which is insufficient to meet its burden.  See e.g., Pimental v DE Freight LLC, 205 A.D.3d 591 (1st Dept 2022).  TEC also failed to submit evidence showing that the Elevator was not defective.  See Kucevic v Three Park Ave. Bldg. Co., L.P., 55 A.D.3d 792 (2d Dept 2008)
 
The Court determined that TEC failed to demonstrate, prima facie, that it may not be held liable for Plaintiff's incident.  There was no need to consider whether Plaintiff or Owner raised a triable issue.
 
Motion denied. 
 
6/26/2023 Courtney Bennett v. New York City Housing Authority 
Supreme Court, New York County
Late Notice of Claim barred recovery.
 
Plaintiff alleged injuries sustained on November 17, 2018, when an elevator (the “Elevator”) she was riding in suddenly dropped from the ground floor to the basement (the “Incident”).  Defendant, New York City Housing Authority (“Defendant”), moved to dismiss because the Notice of Claim was filed late, and Plaintiff failed to seek leave to file a late notice prior to the expiration of the statute of limitations. 
 
In brief, the Incident occurred on November 17, 2018, and the 90-day deadline for serving the Notice of Claim was February 15, 2019.  Plaintiff admitted her Notice of Claim was late but argued that the Court should excuse the small delay because there was no prejudice to the Defendant.  With the expiration of the statute of limitations, the Court no longer has discretion and it’s deprived of jurisdiction to grant an extension of time to file a late Notice of Claim.  See Simons v. Sherburne-Earlville Cent. Sch. Distr.¸233 A.D.2d 592 (3d Dep’t 1996).  The Court granted Defendant’s motion to dismiss. 
 
I included this matter this month for the sole purpose of identifying issues that could be avoided in elevator/escalator litigation.  Plaintiff could have identified other non-municipal parties (i.e., elevator maintenance provider) and perhaps could have avoided this scenario entirely. 
 
7/6/2023  Dmitry Ivanenko v. 1135 Park Avenue Corporation, et ano. 
Supreme Court, New York County
Partial summary judgment granted to Plaintiff on Labor Law 240(1).
 
Plaintiff alleged injuries sustained while working on the repair and modernization of an elevator (the “Elevator”) in a building owned by Defendant, 1135 Park Avenue Corporation (“Owner”) and managed by ABC Management Corp. (“Manager”).  Plaintiff was replacing cables when he was lifted up two-stories by a rope he was using.  Plaintiff fell on top of the Elevator, then was struck by cables and shackles from above.  Plaintiff alleged that the rope he was holding was not secured to the pit of the Elevator.  Plaintiff observed that when the last of the old cables were cut, Plaintiff was hoisted upwards.  Plaintiff insists these circumstances entitle him to summary judgment.  In opposition, Owner and Manager contended that there was no device being hoisted or secured when Plaintiff was injured and therefore no defective/inadequate safety devices.  They alleged human error, which does not entitle Plaintiff to judgment.  In reply, Plaintiff emphasized that “someone made a mistake” does not raise an issue of fact.          
 
The Court granted the motion.  Plaintiff was assisting in changing the cable for the Elevator and his supervisor testified that the accident happened because “[t]hey were using the rope and they attached the rope to the cables and they did not tie the rope at the bottom of the pit.”  The supervisor added that the rope was not tied off due to “someone[‘s] mistake.”  The Court determined that this was “precisely the type of accident that is covered by Labor Law 240(1).  It was a gravity-related accident where Plaintiff fell from a height and was hit by cables falling from a height.  Defendants’ claim that Plaintiff’s accident was not deliberate was of no moment, because section 240(1) imposes strict liability on owners and contractors.  Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 153 (1st Dep’t 2003). 
 
Plaintiff’s Motion for Partial Summary Judgment on Labor Law 240(1) was granted. 
 
7/5/2023 Kujtime Xholi v. 150 East Holdings, LLC,et al. 
Appellate Division, Second Department
Summary motion granted where Defendants did not have notice of a defect. 
 
Plaintiff appealed an Order from the Supreme Court, Kings County which granted Defendant Nouveau Elevator Indus. Inc.’s motion for summary judgment and Defendants 150 East 42 Holdings, LLC/150 E. 42 Realty, LLC/Jones Lang LaSalle Americas, Inc.’s motion for summary judgment.  Plaintiff allegedly was injured when she exited a service elevator (the “Elevator”) and the doors closed on her.
 
"A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect.”  Lanzillo v. 4 World Trade Ctr., 195 A.D.3d 907, 908 (2d Dep’t 2021); see Syrnik v. Bd. of Mgrs. of the Leighton House Condo., 198 A.D.3d 835, 836 (2d Dep’t 2021); Goodwin v. Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766 (2d Dep’t 2017).  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.”
 
Here, the Court found the evidence submitted by Defendants established that the Elevator operated properly and was not defective.  Moreover, the Defendants did not have actual or constructive notice of any defect in the Elevator that would have caused the door to strike the Plaintiff.  In opposition, Plaintiff failed to raise triable issue of fact.  Plaintiff’s expert affidavit was speculative and conclusory, lacked foundation, and was insufficient to raise issue of fact.  
 
Motion Affirmed. 

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]
 

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