Premises Pointers - Volume VII, No. 7

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:

Happy Holidays!
 
December is always both a busy and festive time at Hurwitz Fine. We kicked off the month with our annual holiday party, bringing together our Albany, Long Island, Connecticut and Buffalo teams.



We continued celebrating with our holiday cookie, ugly sweater and “reindeer games” days. And we closed the month partnering with P.U.N.T. Pediatric Collaborative to adopt a family battling pediatric cancer to donate toys, clothes, winter necessities, household items, gift cards and more to bring this family some holiday cheer.
 
In 2023, we had a lot happen at the firm. Our Long Island office expanded, we welcomed several new attorneys and staff members, we helped build homes with Habitat for Humanity, and we achieved the national diversity Mansfield Certification “Plus” status. This in addition to providing legal services to our clients across New York and the country.
 
On behalf of all our columnists (Anastasia, Marc, Scott, Patrice, Ashley, and Kaitlin), wishing you a Happy New Year!

-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] 

 
12/4/23            Dominguez v. Target Corporation
United States District Court, Eastern District of New York
Target removed the case to Federal Court alleging fraudulent joinder of the two co-defendants who are New York residents – while not accepting the removal outright the Court ordered plaintiff to file an amended complaint setting forth the basis of the claims against the New York defendants.
 
Plaintiff slipped and fell allegedly due to a wet floor inside the Target store at issue. The defendant removed the case to Federal Court. When removing the case, Target acknowledged complete diversity did not exist due to plaintiff’s suit against two New York Defendants. To overcome this, Target submitted the lease for the store at issue which requires Target to keep and maintain the premises in a “neat, clean, orderly and sanitary condition and repair.” The landlord who is named in the complaint is not responsible for maintaining the interior of the store. Therefore, Target contended they are not proper parties to the action and their inclusion should not be sufficient to destroy diversity for removal purposes.
 
The seminal case on the issue of fraudulent joinder is  Pampillonia v. RJR Nabisco. Inc., 138 F.3d 459 (2d Cir. 1998), which holds that defendants seeking removal must demonstrate “by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court.” Id. at 460-61. “The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of the plaintiff.” Id. The Court determined that the Second Circuit's holding should be applied literally. The Court further noted that where the facts relating to the merits of the claim are solely within the knowledge of the removing party, may be poor candidates for a court to find a sham removal. While the plaintiff may arguably be able to assert a plausible claim against Target, with regard to Forest and Kimco, plaintiff did not provide any evidence of what they did wrong that constitutes negligence. The Court made clear that it is not sufficient for plaintiff to say, “I don't know yet; I need discovery.” Given the lease, which creates a prima facie showing that only Target is responsible, the Court stated that plaintiff needs some plausible basis for thinking that Forest and Kimco ignored the terms of the lease and took on the maintenance obligation themselves. In light of this analysis, the Court ordered plaintiff to file an amended complaint that states a claim against all defendants. If she decides to proceed against the New York defendants, Forest and Kimco, her claims will all be subject to review under Rule 11, meaning she could be subject to sanctions if it is determined the claims are without merit and lack a good faith basis for bringing them. If she states a plausible claim against Forest and Kimco, the case will be remanded to state court. If she abandons that effort or fails to succeed at it, those defendants will be dismissed on the merits and the case will remain in Federal Court.
 

12/28/23          Hammonds v. Burlington Coat Factor Warehouse Corporation
United States District Court, Southern District of New York
Plaintiff, who tripped and fell on the leg of a clothing rack referred to as a Gondola, moved for partial summary judgment against defendant on the issue of liability – her motion was denied.
 
Plaintiff moved for partial summary judgment on the issue of liability. Since the Plaintiff failed to show the absence of a genuine issue of material fact as to each of the elements of her claim, her motion was denied. The Court found there was an issue of fact as to whether Defendant owed a duty to Plaintiff. Based upon the record before the Court, including the Court's review of the video of the incident, it was determined there is a question for the jury as to whether the condition of the leg of the clothing rack on which Plaintiff fell was “readily observable.” In addition, even assuming arguendo, that Defendant owed a duty to Plaintiff, a jury must determine “whether and to what extent [the] duty was breached.” Notwithstanding Plaintiff's arguments to the contrary, there was also an issue of fact as to whether Defendant had knowledge of or created the allegedly defective condition prior to Plaintiff's accident. For all reasons stated, the motion was denied.

Labor & Employment for Retailers, Hospitality, and School District Litigation
By: Anastasia M. McCarthy [email protected] 

 
Dear Readers,

Happy Holidays! The McCarthy family took the annual journey to the Finger Lakes to visit GramShari and Papa Stumpf who live on a 65-acre NY State Certified Tree Farm.  The kids had a great time playing with my parents’ dog, Cricket, and walking to our family’s pond (which is a quarter of a mile down a dirt and gravel driveway). The kids got to check out the log cabin that my dad and grandfather have been rebuilding (my grandfather built the first iteration 30+ years ago, alone, and by hand) and were very pleased that Santa managed to find them so far away from home. We made the trek back the day after Christmas and now it’s back to business (although we still have two more Christmas celebrations to look forward to here in Buffalo).

No cases to discuss this month, however, some news on the legislation front as Governor Hochul officially vetoed the pending non-compete bill, which would have instituted a complete ban on non-compete agreements in the State of New York. In a public statement, Governor Hochul explained that she viewed the bill as a “one-size-fits-all approach” that ignores the legitimate, practical, and fair use of non-compete agreements.  While recognizing the need to protect middle-class and low wage workers from imbalanced and/or unfair non-competes that restrict wage growth and lateral movement, Governor Hochul was clear that the legislature’s next draft of the bill needed to strike “the right balance.”

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

Hello Subscribers,
 
Enjoy the holidays with family and friends while you still can! This month’s edition contains three discovery cases reminding us of a party’s discovery obligations, both before and after the filing of the note of issue, including post-note of issue independent medical examinations (IMEs). A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the CPLR’s liberal discovery provisions when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue. CPLR 3101(a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Information that is “material and necessary” must be disclosed because it bears on the controversy at issue and will assist the requesting party in preparing for trial. The defense is also entitled to review records showing the nature and severity of plaintiff’s prior medical conditions, which may have an impact on the amount of damages, if any recoverable, for a claim of loss of enjoyment of life.
 
Regular readers hopefully also know of the 20-day window in which the defense must file a motion to vacate the note of issue pursuant to 22 NYCRR 202.21(e). That regulation states that “[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action … may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect … After such period, no such motion shall be allowed except for good cause shown. At any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.”
 
If you have any experience with post-note of issue discovery motions, with or without IMEs, please reach out and share. Until next issue, good luck to our Buffalo Bills …
 
Marc


11/29/23      Frawley v City of New York
Appellate Division, Second Department 
Defendant entitled to authorizations for the release of pre-incident records for bilateral wrist injuries.
 
Decedent was allegedly injured while working as a carpenter on defendant’s premises. As a result of the incident, decedent asserted claims for loss of enjoyment of life, as well as injuries to the head, spine, and “activation of underlying degenerative joint disease that was entirely asymptomatic.” During discovery, defendant learned that decedent sought treatment after the incident for bilateral wrist pain, diagnosed as carpal tunnel syndrome, which reportedly began prior to the incident and had since intensified.
 
The trial court denied defendant’s motion to compel compliance with its discovery demands for the release of records relating to decedent’s bilateral wrist injuries. The Second Department reversed the trial court’s decision and granted defendant’s motion to compel. The Court concluded that decedent placed his bilateral wrist injuries in controversy by asserting a claim for loss of enjoyment of life and alleging “activation of underlying degenerative joint disease.” Therefore, the Court held that decedent waived the physician-patient privilege regarding his medical history concerning that physical condition, which is material and necessary to the issue of damages.
 
 
12/13/23     Fulcher v Empire State Grand Counsil Ancient & Accepted Scottish Rite Masons
Appellate Division, Second Department 
Defendant entitled to conduct post-note of issue IME of plaintiff because Court held the conduct of plaintiff prevented defendant from timely moving forward with the IME.
 
Plaintiff was allegedly injured during a brawl that erupted at defendant’s property. The trial court essentially denied defendant’s motion to strike the note of issue to allow plaintiff to appear for an IME. The Second Department reversed the trial court and granted defendant’s motion as plaintiff withheld HIPAA-complaint authorizations for plaintiff’s treating physician and the Workers’ Compensation Board, as well as updated authorizations for hospital and medical records, which the Court determined prevented the defense from timely moving forward with the IME.
 
 
12/21/23      Peterson v City of New York
Appellate Division, First Department 
Defendant’s motion to vacate note of issue was properly denied because defendant’s conduct showed a lack of diligence in seeking the requested discovery and IME, which did not constitute unusual or unanticipated circumstances.
 
The trial court granted defendant’s motion to strike the note of issue and compelled plaintiff to appear for an IME. The First Department unanimously reversed the trial court’s decision and denied defendant’s motion since it was made more than 20 days after the note of issues was filed and failed to show good cause for the delay or that the IME was required to prevent substantial justice to defendant because unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness, requiring vacatur. Rather, the record showed a lack of diligence on defendant’s part in seeking discovery as it failed to appear at plaintiff’s deposition to question her about any of her injuries, failed to schedule an IME, and did not even claim a need for one until the parties appeared for a settlement conference, which was six months post-note of issue filing. Additionally, the Court held that defendant’s failure to timely avail itself of the many opportunities offered to conduct the IME waived any right it had to additional discovery, since the certificate of readiness correctly represented that all discovery was complete.

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

This is my favorite preface to write all year. For those who regularly read my column, you know that during the year I try to pull some interesting science news stories/research/tidbits for your enjoyment.  As we approach the end of the year (and the final issue of Pushing Buttons for 2023), I wanted to look back at some of the biggest science news stories of 2023.  As in prior years, I searched multiple sources for common threads and stories.  What did I find?  Here are some of the most interesting science discoveries of 2023: (1) Otzi the Iceman’s DNA reveals new ancestry (ScieneNews.org); (2) AI impressed and alarmed in equal measure (CosmosMagazine.com); (3) NASA released a major report on UFOs and appointed a UFO Research Chief (CosmosMagazine.com); (4) the Titan submersible imploded while searching for a shipwreck (SmithonsianMag.com); (5) 2023 is the hottest years on record (SmithsonianMag.com); (6) James Webb Space Telescope detected an organic molecule in space for the first time (Inverse.com); (7) Scientists created the first synthetic human embryo from stem cells (Inverse.com); (8) Cats have nearly 300 facial expressions (Science.org); (9) Strange sea creature identified off Japan coast (Science.org); and (10) fungi causing lung infections now found throughout the United States (ScienceNews.org). 
 
As we move on to 2024, I want to thank you all for taking time out of your busy day to read my little niche newsletter column.  Happy holidays and new year to all.  I look forward to 2024.
  
I hope you enjoy the ride. 
 
Scott
 

12/04/2023   Sayles v. Urban American Management Corp., et al.  
Supreme Court, New York County
Plaintiff provided detailed showing that additional corporate witness was warranted.
 
Plaintiff, Gordon Sayles (“Plaintiff”), alleged sustaining injuries when an elevator (the “Elevator”) in which she was riding at the premises located at 3333 Broadway, New York, New York, malfunctioned and dropped several floors (the “Incident”).  Defendant, Schindler Elevator Corporation (“Schindler”) was the elevator maintenance company responsible for maintaining and repairing the Elevator.  During discovery Schindler produced a Function Location Site History Report (the “Report”), which plaintiff asserted indicated that Schindler was on site at least twenty (20) times to service the Elevator in the six-months prior to the Incident.  Plaintiff requested that Schindler produce a witness for deposition with knowledge of the Report.  Schindler declined to agree to produce an additional witness.  Plaintiff filed a motion to strike Schindler’s Answer or alternatively, to preclude Schindler from offering evidence at trial (the “Motion”).  The Motion argued that Schindler’s witness was unable to explain aspects of the Report.  In opposition, Schindler argued that it already produced a witness, and that he had extensive knowledge about the relevant facts of the matter.
 
CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action…”  However, “…unlimited disclosure is not mandated” and a court may issue a protective order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.  Suchorzepka v. Mukhtarzad, 103 A.D.3d 878, 879 (2d Dep’t 2013) (quoting County of Suffolk v. Long Island Power Auth., 100 A.D.3d 944, 946 (2012)).  The balance between liberal disclosure and protecting parties is left to the sound discretion of the lower courts.  Sgambelluri v. Recinos, 192 Misc. 2d 777, 779 (Sup. Ct. Nassau County 2002) (citing Andon ex rel. Andon v. 302-304 Mott St. Assoc., 94 N.Y.2d 740, 745 (2000)). 
 
The general rule is that when disclosure is sought from a corporation through deposition, the corporation has the right to designate the employee to be examined.  See Rector, Church Wardens and Vesrtymen of St. Bartholomew’s Church in City of N.Y. v. Comm. To Preserve St. Bartholomew’s Church, Inc., 84 A.D.2d 516, 516 (1st Dep’t 1981).  Once a defendant is deposed, additional witnesses are only warranted when it is established that: (1) the witness deposed had insufficient knowledge relative to the issues in the case or was otherwise inadequate; and (2) there is a substantial likelihood that the additional witness sought to be produced possesses information which is material and necessary to the prosecution of the case.  Perez v. City of N.Y., 43 Misc. 3d 1217(A) (Sup. Ct. Bronx County 2014), aff’d sub. nom. Epperson v. City of N.Y., 133 A.D.3d 522 (1st Dep’t 2015).  Here, there was no dispute that Plaintiff was entitled to an explanation of the Report.  The only dispute was the means and/or methods used to convey that information.  Rather than using documentary evidence to procure the entitled information, Plaintiff argued that deposing an additional corporate witness would be the most expeditious. 
 
Reviewing the testimony of Schindler’s witness revealed a “detailed showing” of the necessity of taking additional depositions.  Plaintiff demonstrated that the witness did not have sufficient information regarding the Report and that there was a substantial likelihood that the witness sought possessed information necessary and material to the prosecution of the case.  See Alexopoulos v. Metro Transp. Auth., 37 A.D.3d 232, 233 (1st Dep’t 2007).  Thus, the Court Ordered that Schindler produce a witness for deposition with firsthand knowledge concerning the Report. 
 
Motion granted to the extent of compelling Schindler to produce an additional witness.   

Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Patrice C. S. Melville [email protected]

Hi Readers,
 

I hope you are having a wonderful Holiday Season. My favorite memories of this Holiday Season include baking cookies for Santa with my kids and their sheer joy on Christmas morning when they saw that Santa ate the cookies and left gifts under the tree. It’s easy to get caught up in the tangible gifts, but the memories—not the gifts—last forever.
 
Hope you had a healthy and productive 2023. May your 2024 be filled with many wonderful moments and future memories!
 

12/20/23          Blackman v Red Lobster Hospitality, LLC
Appellate Division, Second Department 
Video recording depicting a wet condition on the floor of a restaurant created issues of fact regarding whether restaurant had constructive notice of the condition.
 
The plaintiff commenced a lawsuit against Red Lobster Hospitality, LLC to recover damages for injuries she allegedly sustained as a result of a slip and fall on the defendant's premises. The defendant filed a motion for summary judgment on the grounds that it neither created the wet condition nor had notice (actual or constructive) of its existence. The Supreme Court granted the defendant's motion. Thereafter, the plaintiff moved for leave to renew her opposition to the defendant's motion, submitting a video recording depicting the wet condition of the floor in the subject premises. The video, taken by the plaintiff, had not been disclosed until the day that the case was certified as ready for trial. The defendant, in opposition to plaintiff’s motion to renew, argued for preclusion of the late-disclosed video. The Supreme Court granted the plaintiff's motion for leave to renew and vacated the prior order of dismissal. The defendant appealed.

On appeal, the Appellate Division found that the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to renew. The Court reasoned that the requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and that the court, in its discretion, may also grant renewal upon facts which were known to the movant at the time the original motion was made. Ultimately, the Appellate Division found that the plaintiff raised a triable issue of fact, by way of the video footage depicting the subject condition, as to whether the defendant had constructive notice of the condition that allegedly caused the plaintiff to slip and fall.
  
11/8/23            Adzei v Edward Builders
Appellate Division, Second Department 
Fact issues as to whether handrail was present or required and whether alleged absence was proximate cause of injuries precluded summary judgment.
 
The plaintiff, who had fallen down staircase in a building, brought action against building owner and contractor, seeking to recover damages for personal injuries. The plaintiff’s allegations of negligence consisted of the defendants’ failure to clean and maintain the staircase and missing/inadequate handrails. The plaintiff testified at his deposition that he believed that he slipped on cement powder because he noticed concrete dust on his face, hair, and uniform after his fall. However, he also admitted that he did not notice the cement dust before his fall or see it on the landing of the stairs after his fall. Plaintiff also testified that he reached for a handrail while he was falling and that there was none. The defendants moved for summary judgment dismissal on the grounds that the plaintiff could not identify what caused his fall. Defendants failed to address the allegation of missing/inadequate handrails. The Supreme Court granted defendants' motion. The plaintiff appealed.
 
On appeal, Appellate Division reiterated that a defendant could make its prima facie showing of entitlement to judgment as matter of law by establishing that plaintiff cannot identify cause of his or her fall without engaging in speculation. However, the Appellate Division, finding that there can be more than one proximate cause of the accident and in viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, ultimately found that the defendants failed to establish that a handrail was present or was not required, or that its alleged absence was not a proximate cause of the plaintiff's injuries. The Appellate Division went on to state that even if the plaintiff fell because of a misstep, his testimony that he reached for a railing when he fell, but there was none, created triable issues of fact as to whether a handrail was present or required and as to whether the alleged absence of a handrail was a proximate cause of the plaintiff's injuries. Accordingly, the Appellate Division found that the Supreme Court should have denied that branch of the defendants’ motion for summary judgment without regard to the sufficiency of the plaintiff's opposition papers.

School District & Municipal Liability
By: Kaitlin M. Sines [email protected]

Hi Readers,
 

I hope your holiday season has been joyous and peaceful thus far. This month’s column will be a short one, covering an assumption of risk case out of the Second Department. As always, please, feel free to call or email if you would like to chat about this case and/or a similar problem you may be facing. 

 
12/20/2023       C.P.G. v. Uniondale School District
Appellate Division, Second Department (Available upon request)
Upon appeal, lower court’s denial of Defendant’s Cross-Motion for Summary Judgment, seeking to dismiss Plaintiff’s Complaint, was reversed.
 
This was an appeal from an Order of the Supreme Court, Nassau County, that denied the Uniondale School District’s (“District”) Cross-Motion for Summary Judgment.  The injured infant, who was an eighth-grade student at Turtle Hook Middle School, was allegedly harmed while playing a pickup game of soccer during a school-sponsored event.  The instant personal injury action was commenced, alleging that the infant was injured due to dangerous conditions on the field and negligent supervision by the District’s employees.
 
Under the doctrine of primary assumption of risk, if the risks associated with a given sporting or recreational activity are either known by or perfectly obvious to an individual voluntarily participating in the activity, then that individual has consented to the risks and a defendant has discharged its duty of care by making the conditions as safe as they appear to be.  The risks that are inherent in a sporting or recreational activity are those which are “known, apparent, natural or reasonably foreseeable consequences” of the individual’s participation. 
 
Here, the injured infant testified that he fell because of a combination of pebbles, mud and wet grass, amongst other things.  The injured infant further testified that there were no puddles of standing water and the grass was wet from both the previous day’s rain and other students playing with water balloons.  The Second Department held that neither the pebbles, the mud nor the wet grass presented a “concealed or unreasonably increased risk” beyond the risks inherent in the activity of outdoor soccer.  This was true regardless of whether the mud and wet grass were caused by the elements or by children playing with water balloons.  Accordingly, the injured infant had consented to the risks associated with playing soccer on an outdoor field when he voluntarily engaged in playing the game of pickup soccer and the claim of dangerous conditions had to fail.  Furthermore, the Second Department held that merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision and that to hold otherwise would effectively prohibit schools from utilizing outdoor playing fields.  Accordingly, the claim of negligent supervision also had to fail.  In sum, the lower court’s denial of the District’s Cross-Motion for Summary Judgment was reversed.

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]

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