Premises Pointers - Volume VII, No. 3


Volume VII, No. 3
August 28, 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.



This month, more than half of Hurwitz Fine’s attorneys were honored with national recognition by both Best Lawyers and Super Lawyers.
Twenty-eight of our attorneys were selected for the 2024 edition of The Best Lawyers in America. Among this list, five Hurwitz Fine attorneys were named to the Best Lawyers: Ones to Watch in America list. In addition, Firm Members Michael F. Perley and Edward C. Robinson were also named as Best Lawyers “Lawyer of the Year” in Buffalo for Litigation – Municipal (Michael F. Perley) and Elder Law (Edward C. Robinson). “Lawyer of the Year” honors are awarded annually to only one lawyer per practice area in each region with extremely high overall feedback from their peers, making it an exceptional distinction.
We also had 32 attorneys from Hurwitz Fine selected for inclusion on the 2023 Upstate New York Super Lawyers and Rising Stars lists. In addition, six of the Top 50 and two of the Top 10 Upstate New York Super Lawyers are Hurwitz Fine attorneys. Litigation Member Michael F. Perley was recognized as the #2 attorney across Upstate New York in all practice areas!
Both of these honors are based largely on peer nominations, so it a great honor for our attorneys to be recognized by fellow attorneys across the United States.  In addition, we have lawyers across all practice areas and both attorneys recognized that have been at the firm for their entire careers as well as associates. I’m very proud of our firm, the talented lawyers we have and our dedicated staff.

In other news, I want to thank attorney Kaitlin Sines for stepping up as a guest columnist and covering our school district column this month.
Enjoy Labor Day and the last few weeks of summer everyone!


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] 

8/1/23              Holly Baker v. Wal-Mart Stores East, L.P.
United States District Court,
Southern District of New York

Slip and fall on rug - Court granted Wal-Mart Stores’ motion for summary judgment because 3 ½ minutes was not enough time for Wal-Mart to discover and fix the problem with the rug.
Plaintiff sued Wal-Mart following a slip and fall accident that she claims was caused by the rolled edge/corner of the rug in front of the ice machine at the store. There was no dispute that the condition of the rug was defective – everyone agrees the edges of the rug should have been flat and even. The dispute was over how long the defective condition existed. There was surveillance video that showed another guest walk over the same rug approximately 3½ minutes before the plaintiff’s fall and it was believed that the first guest caused the edge of the rug to flip up. Therefore, the question was whether 3½ minutes was sufficient time for Wal-Mart employees to discover and correct the defect. The court ruled it was not and granted the motion. While plaintiff attempted to assert a recurring condition argument, that failed as well based on a lack of evidence in the record to support it. A general awareness of a condition is insufficient to create the inference of notice.
7/31/23            Barry Menkes v. Target Corporation
United States District Court, Eastern District of New York
Fall after “collision” with a stanchion at Target – Court granted Target’s motion for summary judgment.
Plaintiff sued Target following a fall had due to bumping into a Target stanchion. Target uses stanchions to assist with crowd control and to help guide guests. They are stationary objects. Target argued that the stanchion was not a dangerous condition; it was not defective and possessed no hidden danger. Further, plaintiff could see and observe the stanchion using his own senses. The court ruled that plaintiff’s unobstructed view of the stanchion and ability to easily move around it prior to his fall renders the stanchion an open and obvious condition, which is therefore not inherently dangerous and not actionable.

In case you are wondering, this is what a stanchion looks like:

8/21/23            Betts v. Sixty Hotels, LLC, et al.
United States District Court,
Southern District of New York

Sexual assault alleged following a spa service offered by hotel – plaintiff’s motion for partial summary judgment was granted in part and defendant hotel’s motion was denied in its entirety.
Plaintiff was a hotel guest at Sixty LES, a luxury hotel in New York, New York. She filed a negligence action against the hotel due to a claimed sexual assault that occurred during a massage at the hotel’s spa. Plaintiff moved for summary judgment and argued negligence “per se” on the grounds the hotel violated New York Education Law § 7802, which prohibits entities claiming to be engaged in the practice of massage therapy from advertising services unless those services are performed by persons licensed or authorized to practice under New York law; and (ii) New York Education Law § 6512(2), which makes it a felony for anyone to knowingly aid or abet three or more unlicensed persons from practicing a profession that requires a professional license. In turn, defendants argue that summary judgment should be granted in their favor because: (i) defendants cannot be held liable on a respondent superior theory; (ii) defendants cannot be held liable under a negligent supervision or retention theory; and (iii) there is no common law duty to conduct background checks of employees or independent contractors before engaging them.
Plaintiff’s motion for partial summary judgment was granted on the basis that defendants’ conduct constituted negligence per se under Section 7802 and proximately caused plaintiff’s injuries. The second prong of plaintiff’s motion was denied. As for defendant’s motion, plaintiff’s negligence supervision claim failed because the massage therapist at issue was an independent contractor and not an employee. However, this was immaterial because plaintiff’s motion was granted and liability resolved in her favor.



School District & Municipal Liability
Guest Columnist: Kaitlin A. Sines [email protected]

Hi Readers,

Kaitlin Sines, filling in for Anastasia McCarthy! This month’s cases, both out of the Second Department, concern claims of negligent supervision.  If you remember anything from my submission, remember this: Schools are not insurers of safety.  As Anastasia always says, feel free to call or email if you’d like to chat about these two cases (or a similar problem you may be facing).

07/05/2023    M.X. v. City of New Rochelle et al.
Appellate Division, Second Department (Available upon request)
Plaintiff’s appeal of lower court’s decision to grant summary judgment to defendants denied.

This was an appeal from the granting of a summary judgment motion brought by the City of New Rochelle, the City of New Rochelle Parks and Recreation Department and the City School District of New Rochelle.

The underlying claim arose when the infant plaintiff, who was attending a summer camp operated by the City defendants on the premises of a school owned by the District, fell from a pull-up bar in the school gymnasium.  The infant plaintiff, and his father suing derivatively, commenced this action against the City defendants and the District, asserting a cause of action alleging negligent supervision.  Following the completion of discovery, the City defendants and the District separately moved for summary judgment, seeking the dismissal of the Complaint insofar as asserted against each of them.  Justice Walker of the Westchester County Supreme Court granted the summary judgment motions, leading to the instant appeal.

In affirming the lower court’s decision, the Second Department emphasized that while schools and camps have a duty to adequately supervise the students in their charge and can be held liable for foreseeable injuries proximately caused by the absence of adequate supervision, they are not insurers of safety.  Here, both a camp counselor and a gym supervisor were in the gymnasium at the time of the accident.  Though he had been instructed not to do so, the infant plaintiff jumped onto the pull-up bar anyway.  Where, as here, an accident occurs in “so short a span of time that even the most intense supervision could not have prevented it,” any lack of supervision will not be deemed the proximate cause of the injury, meaning summary judgment in favor of the defendant(s) will be warranted.

07/26/2023     K.L. v. City of New York
Appellate Division, Second Department (Available upon request)
Plaintiff’s appeal of lower court’s decision to grant summary judgment to defendants denied.

This was also an appeal from the granting of summary judgment motions, this time brought by the City of New York separate from the Board/Department of Education of the City of New York and the involved teacher, also a named defendant.

The underlying claim arose when a first-grade teacher tripped and fell onto a student.  Briefly, the involved teacher had just wrapped up a mini lesson for which she had her students seated on the floor in neat rows.  Also present in the classroom were a co-teacher and a paraprofessional assigned to one of the students in the class.  As the teacher was dismissing the students by row back to their seats, the classroom phone rang and she went to answer it.  As she was walking through the rows of her students that had yet to be dismissed and thus remained seated on the floor, the foot of a student shot out into her path and contacted her foot, causing her to trip, lose her balance and fall onto the infant plaintiff.  The infant plaintiff, and her mother suing derivatively, commenced this action against the City defendants, asserting a cause of action of negligent supervision.  The City defendant and the institutional defendants moved for summary judgment, seeking dismissal of the Complaint.  Justice Levine of the Kings County Supreme Court granted the summary judgment motions, leading to the instant appeal.

In affirming the lower court’s decision, the Second Department first confirmed that the City of New York was not a proper party to the action.  Then, the Second Department moved to the real substance of their decision, why the trial court’s granting of the institutional defendants’ summary judgment motion was proper.  The Court emphasized that while schools have a duty to adequately supervise the students in their charge and a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, schools are not insurers of safety.  Where, as here (and as above in my first case), an accident occurs in “so short a span of time that even the most intense supervision could not have prevented it,” any lack of supervision will not be deemed the proximate cause of the injury, meaning summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted.


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

Hello Subscribers,
Although the courts are still enjoying the last days of summer, we found two very interesting discovery cases for this edition, both from the Fourth Department. It is well-settled that a trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion. The CPLR provides that the court may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
In Harper v Al-Shaby, the Fourth Department discusses CPLR § 3120’s notice requirement, which applies to a party seeking discovery within another party’s control, and can serve as the basis for a sanction for the failure by a party seeking discovery to provide an opposing party with notice. In Manner v Yancey, the Fourth Department clarifies when a party must disclose the testing materials and raw data of their neuropsychologist IME directly to opposing counsel.
If you have experiences with either CPLR § 3120’s notice requirement or requesting a party’s testing materials and raw data from an IME, please reach out and share your experiences. Until next issue, enjoy the last of summer...

07/28/23          Harper v Al-Shaby
Appellate Division, Fourth Department
Plaintiffs entitled to new trial because trial court’s improperly precluded plaintiffs’ expert from testifying at trial.
Plaintiff allegedly sustained injuries when she tripped after catching her foot between a metal strip and a patch of missing concrete on the exterior steps at the entrance of a store operated by defendants. The trial court denied plaintiff’s post-trial motion to overturn the jury’s verdict dismissing the complaint against defendants. Plaintiff’s motion was based on the preclusion of the testimony of their expert, who was retained to evaluate the condition of the entryway where the incident occurred. Defendants moved to preclude the expert’s testimony because he inspected the site without providing notice pursuant to CPLR § 3120(1)(ii). Plaintiffs asserted that their expert merely drove by the area where the steps were located after repairs had been made and that no inspection occurred.
The Fourth Department unanimously reversed the trial court and granted plaintiff’s post-trial motion to set aside the jury’s verdict and reinstated the complaint. CPLR § 3120 is a notice requirement applicable to a party seeking discovery within another party’s control, not a disclosure requirement placed on the party seeking the discovery. Thus, assuming arguendo, that a failure by a party seeking discovery to provide an opposing party with a CPLR § 3120(1)(ii) notice could serve as the basis for sanctions, the Court held that plaintiffs were not required to give defendants notice pursuant to that section because the steps were observable by the expert in a public space (see Dorsa v National Amusements, 6 AD3d 654 [2d Dept 2004] [“A party is not required to serve an adverse party with notice to inspect real property that is open to the general public”]). Moreover, the Court noted the record showed that the expert did not perform an inspection or engage in other activities covered under CPLR § 3120(1)(ii).
07/28/23          Manner v Yancey
Appellate Division, Fourth Department
Defendants not required to disclose testing materials and raw data of neuropsychologist IME directly to plaintiff’s counsel because defendants demonstrated they were prejudiced and unable to obtain the neuropsychologist IME subject to the conditions imposed by the trial court.
Plaintiff was allegedly injured when the vehicle she was driving was struck by a flatbed tow truck owned and operated by defendants. Plaintiff claimed a concussion, post-concussion syndrome, and a traumatic brain injury (“TBI”) because of the MVA. After defendants notice the neuropsychologist IME, plaintiff’s counsel responded that his client would be produced once the parties executed a stipulation requiring that the testing neuropsychologist provide directly to plaintiff’s counsel the testing materials used during the IME and raw data generated. Plaintiff’s counsel agreed that he would not release the testing materials and raw data to any third party other than a licensed psychologist or neuropsychologist, would not place it in the public court file or copied, and it would be returned, unaltered, to defense counsel upon conclusion of the litigation.
Defendants contacted three neuropsychologists, each of whom refused to conduct the IME under the terms proposed by plaintiff’s counsel. Accordingly, the trial court granted defendants’ motion seeking to compel plaintiff to submit to a defense neuropsychological examination with safeguards and for a protective order but directed defendant to provide test materials and raw date to plaintiff’s counsel.
The Fourth Department agreed with defendants and reversed that portion of the trial court’s order directing defendants to provide the testing materials and raw data directing to plaintiff’s counsel. In support of their motion, defendants submitted the affidavits of the three neuropsychologists, each of whom averred that they would not perform an examination on plaintiff if they were required to release the testing materials and raw data directly to plaintiff’s counsel. Therefore, the Court held that defendants established they were unable to obtain the neuropsychologist IME under plaintiff’s counsel’s conditions, which were imposed by the trial court.
Considering the determination regarding disclosure, the Court further held that defendants’ request for a protective order is premature and thus vacated that part of the trial court’s order granting defendants a protective order, noting that nothing in their decision “precludes plaintiff from moving, after having appeared for examination, to compel the disclosure of the testing materials and raw data directly to her counsel”.


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

Here on Pushing Buttons, I don’t often share personal information; however, this month’s science news hits home.  I have a dog and his name is Thor.  In Norse Mythology, Thor is the god associated with lightning and thunder.  New evidence reveals that Pre-Incan Civilizations may have stomped rhythmically on a special dance floor utilized to amplify the thunderous sound as they worshipped the Thunder God!  No, not Thor (certainly not my dog), but I found this interesting, nonetheless.  Archaeologist Kevin Lane at the University of Buenos Aires, excavated sites in Peru revealing purposeful construction of a reverberating platform by the Chocorvos (a herding and farming people).  The surfaces are believed to be ceremonial and act like large drums in honor of the Thunder God himself.  I would build one in my backyard, but Thor (the dog) will likely destroy it.          
After a busy vertical transportation summer, there is only one case this month; however, it is a doozy. 
I hope you enjoy the ride. 

7/17/2023      Jose Genao v. 40 Flatbush Realty, LLC, et al. 
Supreme Court, New York County
Don’t jump out of an elevator.
On May 15, 2009, Plaintiff was a passenger in an elevator (the “Elevator”) located at 25 Chapel Street, Brooklyn, New York (the “Building”).  The Elevator stopped between floors.  Plaintiff “jumped out of the [E]levator” sustaining injuries.  Defendants 40 Flatbush Realty LLC and 40 Flatbush Realty Associates (collectively “Flatbush”) are the owners of the Building.  Flatbush contracted with Rotavele Elevator, Inc. (“Rotavele”) for routine maintenance services on the Elevator.  Flatbush and Rotavele moved for summary judgment.
Plaintiff entered the Elevator at the lobby intending to gain access to his office on the 10th Floor.  On the way up, the Elevator stopped between the 8th and 9th Floors.  Plaintiff pressed the “help” button and phoned his supervisor to report the stopped Elevator.  Plaintiff’s supervisor advised Plaintiff that Building staff were alerted and they were to call the Fire Department.  10 minutes later, Building staff arrived to see the Elevator approximately 2 feet above the 8th Floor.  The Elevator doors were opened manually.  Plaintiff contended that Building staff told him to “take a running jump so you don’t fall into the shaft.”  Plaintiff ran across the Elevator and jumped, landing on his right foot and struck his knee on the wall opposite the Elevator.  Plaintiff went to his office and told his supervisor that he jumped rather than wait for the Fire Department.  Maintenance staff denied telling Plaintiff to run and jump. 
Flatbush Motion
Flatbush (property owner) has a non-delegable duty to passengers to maintain the Elevator in the Building in a reasonably safe manner and may be liable for elevator malfunctions or defects causing injury if it has actual or constructive notice.  Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 458 (1st Dep’t 2011).  Flatbush produced evidence that Rotavele was charged with a duty to maintain the Elevator and that the computer system controlling the Elevator had no alarm to notify Flatbush of a defect.  Thus, Flatbush provided prima facie evidence that it had no actual or constructive notice.  In opposition, Plaintiff failed to raise issue of fact. 
Plaintiff claimed that Flatbush's employee, Jerry Guilford, told him it was safe to jump; Guilford denied making that statement.  Viewing the facts in the light most favorable to Plaintiff (accepting Plaintiff’s version as true), Guilford's alleged statement was not a statement that would impute liability onto his employer.  According to Plaintiff, Guilford told him: “you can jump, but you need to take a running jump, so you don't fall into the shaft…”  This statement showed that if Plaintiff were to exit the elevator by jumping on his own, Plaintiff would have to take a running jump rather than climbing out of the Elevator as there was an open shaft between the Elevator and the floor.  The Court reasoned that while Plaintiff might have relied on Guilford's statement to make a running jump rather than climb out of the Elevator, there was no showing that Plaintiff relied on Guilford for his decision to exit the Elevator on his own rather than wait for assistance or that he could not assess for himself the risk of jumping down two feet.  In Opposition, Plaintiff failed to raise an issue of material fact to defeat Flatbush's prima facie showing warranting summary judgment. 
Rotavele Motion
Rotavele (maintenance provider) may be liable to Plaintiff if, in performing its duties it: (1) launched a force or instrument of harm; (2) Plaintiff detrimentally relied on the continued performance of Rotavele’s duties; and (3) Rotavele entirely displaced Flatbush’s duty to maintain the Building safely.  In its motion, Rotavele argued that it had no actual or constructive notice of any defect.
The Court viewed this matter through a proximate cause lens: did Rotavele’s conduct proximately cause Plaintiff’s injuries.  “’A defendant's negligence qualifies as a proximate cause where it is a substantial cause of the events which produced the injury.’”  Scurry v New York City Housing Auth., 39 N.Y.3d 443, 453 (2023) (quoting Turturro v City of New York, 28 N.Y.3d 469, 483 [2016]).  Viewing the facts in the light most favorable to Plaintiff, and accepting, for the purposes of this analysis, that Rotavele's failure to secure the loose wire on the IO Board caused the Elevator to stop in between floors, the question turned to whether Plaintiff’s own conduct of jumping out of the Elevator was foreseeable.  Rotavele, relying on Kolb v Beechwood Sedgewick LLC, 78 A.D.3d 481, 482 (1st Dept 2010), pointed out (Plaintiff did not dispute), that Plaintiff was not injured when the Elevator stopped in between floors.  Plaintiff was offered assistance.  Thus, Plaintiff knew he could wait for the Fire Department to assist him out of the elevator. As Plaintiff explained to his supervisor, he did not want to wait for the Fire Department.

Thus, his jump from the Elevator was not foreseeable.

Plaintiff’s voluntary jump out of the Elevator severed the causal chain of negligence.  See Egan v A. J. Constr. Corp., 94 N.Y.2d 839, 841 (1999) (finding that the inconvenienced but uninjured plaintiff in a stalled elevator who knew assistance had been called but still jumped out of the elevator to have “superseded defendants’ conduct and terminating defendants’ liability for his injuries.”).


Jody E. Briandi
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]


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