Premises Pointers - Volume VII, No. 9

NOTE FROM THE EDITOR:

Hello from Florida! I am sending our newsletter out from sunny St. Petersburg, Florida, where I am attending FDCC’s winter meeting. It’s been a wonderful week of robust programming, fellowship, and learning from some incredible defense lawyers and corporate counsel members who make up our organization.  
 
This month we welcome Litigation Attorney Christina M. Calabrese to our Albany Team where she will work with attorney Scott Kagan. Christina brings almost 20 years of legal experience with her, and has tried over 100 cases to verdict in various courtrooms throughout the State of New York. Her background ranges from civil actions valued at more than $30 Million to criminal matters of the highest-level offenses. She previously worked at the New York State Office of the Attorney General, the New York State Justice Center for the Protection of People with Special Needs and at the New York State Appellate Division, Third Department. We are thrilled to welcome her to the team and expand our Albany presence.
 
As Generative AI continues to evolve, attorneys continue to face sanctions related to their misplaced reliance on generative AI to create a legal argument. While generative AI serves various beneficial purposes across many industries, it is not a replacement for a good lawyer. Hurwitz Fine Attorney Amber Storr provides updates on the consequences that may arise when a lawyer utilizes generative AI to construct a legal argument.
 
From our corporate attorneys, identifying and reporting the beneficial owners of a business to comply with the federal Corporate Transparency Act may not be as simple as it appears. Hurwitz Fine Attorney Christopher Kolber provides insight in his latest legal alert.
 
Lastly, I was honored earlier this month with a Business First IDEA (Inclusion Diversity Equity Awareness) Award for my work in upholding DEI at Hurwitz Fine and in the community. I was honored to stand among so many leaders in Buffalo for their work on these important initiatives. I would love to hear from you on what your teams and companies are doing to continue moving diversity initiatives forward so please reach out!

-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] 

 
2/5/24        Stassa v Pyramid Mgt. Group, LLC
United States District Court, Southern District of New York
Fraudulent joinder argument rejected by Court and case was remanded.

The rule on fraudulent joinder was developed because a plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendant's parties with no real connection with the controversy. To successfully demonstrate fraudulent joinder, the defendant must, “by clear and convincing evidence, [show] 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.”  (emphasis added). In proving fraudulent joinder, “[t]he defendant seeking removal bears a heavy burden” and “all factual and legal issues must be resolved in favor of the plaintiff.”

In this case, plaintiff Randi Stassa filed a negligence lawsuit against Pyramid Management Group, LLC, Crystal Run Newco, LLC, and Target Corporation after slipping and falling in a Target store in Middletown, New York. The defendants removed the case to federal court, claiming diversity jurisdiction. However, all parties, including plaintiff, Crystal Run, and Pyramid, are citizens of New York. The defendant argued that the plaintiff fraudulently joined Crystal Run and Pyramid to destroy diversity jurisdiction. Defendant contended that these entities had no connection to plaintiff’s accident. The key issue was whether plaintiff could maintain a valid negligence claim against Crystal Run and Pyramid.

The court analyzed the lease agreement, known as the Ground Lease, between Target and Crystal Run. The lease allocated responsibilities for maintaining different parts of the property. While Target was responsible for the store's interior, Crystal Run had duties related to the Common Areas, including maintenance responsibilities. Plaintiff claimed that water dripping from the ceiling caused her slip and fall. The court noted that the lease did not specifically address which defendant, Target or Crystal Run, was responsible for the roof—potentially the source of the water. Due to this ambiguity and plaintiff’s assertion, the court concluded that it was plausible for either defendant to be liable.

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

Dear Readers,

Happy Leap Day (tomorrow!). Did you know that Leap Year, along with a 365-day calendar year beginning on January 1, was created by Julius Caesar? Although the timing of leap year worked a little differently in Ancient Rome, the West has officially observed Leap Year for 2,047 years. Some cultures, particularly the Greeks, Italians, and Spanish consider Leap Years to be particularly unlucky while others toast to the Leap Year with the Leap Year Cocktail—well, at least since Prohibition. 

The Leap Year Cocktail
            2 oz gin
            ½ oz sweet vermouth
            ½ oz brandy-based orange liqueur
            ¼ oz lemon juice
            Garnish with a lemon twist

Fill mixing glass with ice, add ingredients, stir well, strain into a chilled cocktail glass. Garnish. Enjoy!

Now, onto the legal updates.

Governor Hochul has proposed through the 2025 Executive Budget a landmark expansion of New York’s Paid Family Leave program. The proposal would allow pregnant employees up to 40 hours of paid, prenatal leave to attend prenatal medical appointments. Leave would be taken in hourly increments and is in addition to the 12 weeks of PFL already available following the birth of a child.

Other employment-related proposals in the Governors’ budget include a requirement that employers allow paid breaks for breast milk expression (specifically, a 20-minute break for breast milk expression), an expansion of the Department of Labor’s ability to recover wages stolen by an employer, and a limitation on liquidated damages in frequency of payment cases so long as the employee was paid regularly on a semi-monthly basis.

Whether or not these proposals become black letter law remains to be seen.

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

Hello Subscribers,
 
We want to believe in Punxsutawney Phil’s prediction that spring will arrive early this year, and here in Western New York, this week’s weather may prove him right, although I still hear whispers that snow also remains in our forecast (such is life in Buffalo). Discovery cases remain sparse lately, perhaps a sign that parties are no longer willing to waste unnecessary resources or perhaps a signal that courts are still hibernating, but we found one interesting surveillance case to review, which further builds on last month’s edition. 
 
CPLR § 3101(i) provides, in pertinent part, that “there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a” party. That provision requires the “disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.” Surveillance material is “on the same footing as other material generally discovery under CPLR 3101(a), which contains likewise language (that we highlighted in last month’s edition) requiring the “full disclosure” of all matter material and relevant to the prosecution or defense of an action”. If you have any good stories involving discovery and surveillance, please reach out and share your experiences.
 
Until next issue, enjoy the warmer weather if you can!
 
Marc

2/14/24          Mendez v Joseph
Appellate Division, Second Department 
Defendants ordered to disclose surveillance of plaintiff conducted by defendants’ investigators.

Defendants retained investigators to conduct surveillance of plaintiff. The trial court granted plaintiff’s motion to compel defendants to comply with discovery demands relating to the surveillance to the extent of directing defendants to produce, among other things, the name and address  of the investigation company and the names and addresses of the individuals who conducted the surveillance, as well as all “memoranda, transcripts, notes, logs, journals, and time records of each videographer, photographer, and/or investigator,” all raw footage used to compile the DVDs that were exchanged with plaintiff, and all records relating to “the amount of footage of film, videotape and/or audiotape used, [and] the type of equipment used to take, develop, convert, transfer and edit such film, videotape or audiotape.  
 
The Second Department affirmed the trial court’s decision because plaintiff demonstrated that the discovery sought related to defendants’ surveillance activities, which was material and necessary to the prosecution of her action. Defendants also failed to demonstrate their entitlement to a protective order with respect to those demands.  

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

“One small step for man, one giant leap for mankind.”  This famous statement by Neil Armstrong in 1969 marked the first-time mankind stepped on the Moon.  Between 1969 and 1972, the United States kept busy, launching both men and machine to the Moon’s surface.  On February 23, 2024, the U.S. landed the Odysseus Moon Lander on the moon, marking the first U.S. lunar lander since Apollo 17 in 1972.  I know what you are thinking.  If only we had a space elevator.  Imagine the litigation we could discuss here in this column.  Pushing Buttons: The Ups, Downs & Space of Vertical Transportation Law.  One can only hope. 

 
I hope you enjoy the ride. 
 
Scott
 

1/18/2024                  Merrick v. Macerich Company., et al.  
Appellate Division, First Department
Conditional summary judgment seeking indemnification was not premature.
 

Defendants, Macerich Company, Macerich Property Management Company, LLC and Macerich Queens Limited Partnership (collectively, “Macerich”) moved for summary judgment on its cross-claims for contractual indemnification against Defendant, ThyssenKrupp Elevator Corporation (“TEC”).  Macerich contended that it was free of negligence and did not cause or contribute to Plaintiff’s accident.  TEC cross-moved to dismiss the cross-claims.  Macerich’s motion was granted, and TEC appealed. 
 
The First Department held that Macerich established its entitlement to conditional summary judgment on its contractual indemnification claim against TEC because Plaintiff’s allegations were of TEC’s negligence.  Under the full service elevator agreement between Macerich and TEC, TEC’s indemnification obligated was triggered by “actual and/or alleged” negligence.  See Vitucci v. Durst Pyramid LLC, 205 A.D.3d 441, 445 (1st Dep’t 2022); see also Ezzard v. One E. Riv. Place Realty Co., LLC, 137 A.D.3d 648, 649 (1st Dep’t 2016).  The Supreme Court was not required to find that Macerich was free of fault to grant conditional summary judgment, as Macerich was entitled to indemnification to the extent it is found free of any negligence.  See e.g., Cuomo v. 53rd and 2nd Assoc., LLC, 111 A.D.3d 548, 548 (1st Dep’t 2013).  Moreover, the motion was not premature despite outstanding discovery. 
 
Moreover, the indemnification clause did not violate General Obligations Law Section 5-322.1(1) because it did not require TEC to indemnify Macerich for Macerich’s negligence.  See e.g., Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204, 207 (2008).  Rather, the clause provided for bilateral indemnification, requiring Macerich to indemnify TEC for Macerich’s active negligence.
 
Last, the Supreme Court properly denied TEC’s motion dismissing the Complaint, as TEC failed to show that it used reasonable care to discovery and correct the defective condition of the elevator sensor.  See Stewart v. World El. Co., Inc., 84 A.D.3d 491, 495 (1st Dep’t 2011).  TEC’s account history records lacked detail, and its mechanic testimony was not based on personal knowledge.  TEC also failed to present evidence that Plaintiff contributed to the accident.          

 
Affirmed. 
 
 
1/18/2024                Santoro v. 41 Madison L.P., et ano.
                                Madison L.P. v. Schindler Elevator Corporation  
Supreme Court, County of New York
Battle of liability experts precludes summary judgment.
 

Plaintiff, Kerry M. Santoro (“Plaintiff”), alleged a fall from a fixed ladder while descending toward the elevator motor room at the premises located at 41 Madison Avenue, New York, New York (the “Premises”) on December 9, 2019 (the “Incident”).  Defendant, 41 Madison L.P. (“Madison”), owned the Premises.  Defendant, Rudin Management Co. Inc. (“Rudin”), was the managing agent.  Madison and Rudin (collectively, “Defendants”) moved for summary judgment seeking a dismissal of Plaintiff’s Labor Law claims.  Plaintiff was employed by Schindler Elevator Corporation (“Schindler”).      
 
Plaintiff traveled to the Premises to perform Category 1 Testing of the elevators.  Plaintiff was descending a ladder from the main elevator room to the elevator motor room.  The ladder was affixed to a cement slab and possessed metal rails on both sides, but no handrails.  Plaintiff alleged that the ladder would have been safer with handrails.  She descended 2-3 rungs, before falling, resulting in injury.      
 
In support of the motion, Defendants submitted the expert affidavit of John Halpern, P.E. (“Halpern”).  Halpern’s experience is in the design, installation, modernization, maintenance, and repair of elevators.  Halpern performed a site inspection of the machine room and ladder.  Halpern concluded that the ladder was code compliant, met all standards for fixed ladders, and did not require fall protection because it was less than six (6) feet in height. 
 
In opposition, Plaintiff submitted the expert affidavit of electrical engineer, William Seymour (“Seymour”).  Seymour opined that the ladder was defective and hazardous due to the lack of grab-bar, handrail, or top-rail for Plaintiff to hold as she descended the ladder.  Seymour contended that the ladder violated the Industrial Code, and that the violation was a substantial factor in causing the Incident. 

 
Labor Law §§ 240(1) and 241(6)
 

In opposition, Plaintiff acknowledged that the facts did not support a cognizable claim under Labor Law §§ 240(1) and 241(6).  The Court of Appeals has repeatedly held that routine maintenance is not protected activity within the relevant Labor Law Sections.  See Esposito v. N.Y.C. Indus. Dev. Agency, 1 N.Y.3d 526, 528 (2003); Nagel v. D&R Realty Corp., 99 N.Y.2d 98, 103 (2002).  Defendants’ motion was granted to the extent of dismissing Labor Law §§ 240(1) and 241(6) claims. 

 
Labor Law § 200
 

Labor Law § 200 codifies the common law duty of an owner to provide construction workers with a safe place to work.  See Comes v New York State Elec. and Gas Corp., 82 N.Y.2d 876, 877 (1993).  It is well-settled that an owner or general contractor will not be found liable under common law or Labor Law § 200, when it has no notice of any dangerous condition which may have caused the plaintiff's injuries, nor the ability to control the activity that caused any such dangerous condition.  Labor Law § 200 and common law claims fall within two categories: (1) “those arising from an alleged defect or dangerous condition existing on the premises; and (2) those arising from the manner in which the work was performed.”  Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144 (1st Dep’t 2012).  Under the first category, the owner had to have either created the condition or have actual/constructive notice of it.  Id. 
 
The action was premised on the existence of a hazardous condition at the Premises (i.e., absence of a grab-bar or handrail or top-rail).  Defendants contend they did not create the hazard and did not have notice that it existed.  Defendant further relied on the Halpern Affidavit that the ladder was not defective and that it complied with all applicable building codes.  In opposition, Plaintiff argued that proof that the ladder was code compliant does not negate the question of liability.  Plaintiff, relying on the Seymour Affidavit, contends that the ladder was defective.        
 
The Court denied Defendants’ motion.  The competing expert affidavits (regarding the inherent danger of the ladder) raised issue of fact.  See Cabrera v. N.Y.C. Trans. Auth., 171 A.D.3d 594 (1st Dep’t 2019) (" ... [t]here is no basis for disturbing the jury's credibility determinations pertaining to damages, which mainly came down to a battle of the experts.”)  The Seymour Affidavit directly contradicted the Halpern Affidavit regarding the inherent danger of the ladder and the code violations.  This disagreement between the experts presented a credibility issue, properly left for jury determination. 
 

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

Hi Readers,
 
Is it me, or is this year just flying by? I feel as though the year just started. Yet, we are already heading into March. And, according to Punxsutawney Phil, Spring will be here before we know it! However, before we leave this cold weather behind, let’s look at two of the Second Department’s recent decisions—one of which examines a snow removal contractor’s burden on a motion for summary judgment dismissal. Both cases emphasis the importance of keeping accurate records when attempting to escape liability for a slip and fall accident.
 
2/2/24              Barbaranette Mitchell v. New York City Housing Authority
Appellate Division, Second Department
Failure to submit evidence of specific cleaning or inspection of the area in question and when said cleaning and inspection was performed is fatal.
 
Plaintiff alleges that she slipped while using the stairs in a New York City Housing Authority (“NYCHA”) building due to a puddle in the stairwell. NYCHA moved for summary judgment dismissal arguing lack of notice. In support of its motion, NYCHA submitted evidence that an employee walked through the building twice the day before the accident, and that NYCHA typically inspects each floor of the building with no indication that such practices were conducted on the date of the plaintiff’s accident. Thus, The Court found an issue of fact as to whether the subject area was properly inspected prior to Plaintiff’s slip and fall accident. The Supreme Court denied NYCHA’s motion. NYCHA filed a motion to reargue, asserting that the Court overlooked or misapprehended case law regarding inspection of the subject property. The Court denied the motion to reargue. NYCHA appealed.  
 
On appeal, the Appellate Division reiterated the longstanding rule that failure to submit evidence of specific cleaning or inspection of the area in question and when said cleaning and inspection was performed relative to the time of the accident in a slip and fall case is fatal to any attempt to establish a lack of constructive notice. The Court found that the evidence submitted by NYCHA failed to establish whether a NYCHA employee ever actually inspected or cleaned the specific area, nor whether any inspections were done on the day of Plaintiff’s purported accident. Therefore, the Court affirmed the lower court decision on the grounds that issues of material fact remained as to whether NYCHA had constructive notice of the defect on the premises. 
 
2/21/24            Nesbitt v. Advanced Service Solutions
Appellate Division, Second Department 
If Espinal exceptions are pleaded in the complaint or the bill of particulars, a defendant is required to demonstrate that those pleaded exceptions do not apply.
 
The plaintiff, a mechanic, alleged that he slipped and fell on ice outside of a garage bay door while attempting to inspect a vehicle that was parked in the parking lot of his employer’s auto repair shop. Defendant, NKP Properties, LLC (“NKP”), owned the premises where the accident occurred and leased it to the plaintiff's employer. The plaintiff's employer had previously contracted with Advanced Service Solutions (“Advanced”) to remove snow and ice from the premises. Advance then entered into a subcontract with G.P. Property Development, Inc. (“GP”) to perform the snow and ice removal duties at the premises. The plaintiff moved for summary judgment on the issue of liability and GP cross-moved alleging that it, a contracting party, owed no duty to the plaintiff. Advanced cross-moved arguing that GP was an independent contractor and that Advanced could not be held vicariously liable for GP’s conduct. The Supreme Court denied the plaintiff's motion and granted that the defendants’ cross-motions. The plaintiff appealed.
 
On appeal, the Appellate Division cited to the general rule of the seminal snow and ice case, Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 773 N.E.2d 485 (2002), that a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party except in the following three circumstances: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.
 
While the lower court stated in its decision that the plaintiff failed to allege any of the Espinal exceptions, the Appellate Division found that the plaintiff’s supplemental bill of particulars did. Therefore, GP was required to demonstrate that the Espinal exceptions did not apply in order to meet its summary judgment burden. The Court found that while GP established that the third exception did not apply, GP failed to establish that the first exception did not. According to the record, the GP employee who performed the services could not recall the exact services that were performed or when, and nonparties testified that there was no salt in the area of the plaintiff’s accident. Thus, the Court found that GP failed to establish that it did not create or exacerbate the condition that allegedly caused the plaintiff’s accident. The Court modified the lower court’s order by deleting the provision granting the defendant’s cross motion.

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

Hi Readers:
 
This month’s column covers just one case out of the Second Department pertaining to a slip and fall in a grassy field which seems fitting given the unseasonably warm weather we have been having here in Buffalo.  As always, please feel free to reach out if you would like to chat about this case and/or a similar problem you may be facing. 
 
1/31/24        D.S. v. Sachem Central School District (available upon request)
Second Department
Affirmed upon Plaintiff’s appeal, upholding the trial court’s decision that the Sachem Central School District (“District”) established its prima facie entitlement to judgment as a matter of law by showing that the allegedly hazardous condition was open, obvious and incidental to the nature of the grass field and was not inherently dangerous.
 
This was an appeal from an Order of the Supreme Court, Suffolk County, that granted the District’s Motion for Summary Judgment, dismissing Plaintiff’s Complaint.  At issue was the Plaintiff’s slip and fall while walking through a grass field during recess on the District’s premises.  The District moved for summary judgment, dismissing Plaintiff’s Complaint, and the trial court granted the Motion.  Plaintiff then appealed.
 
In affirming the trial court’s decision, the Second Department confirmed that the District had met its burden, establishing its prima facie entitlement to judgment as a matter of law, by showing that the allegedly hazardous condition was open and obvious to the Plaintiff, was incidental to the nature of the grass field at issue and was not inherently dangerous.  The Second Department recited well-established law that while an owner of land has a duty to maintain the land in a “reasonably safe” condition, there is no duty to protect or warn of a condition that is not inherently dangerous and is observable by the reasonable use of one’s senses.  Furthermore, a landowner will not be held liable for an injury that arises out of a condition on the property that is inherent or incidental to the very nature of the property and that could be reasonably anticipated by those using the property.
 
Here, the District put forth admissible evidence that the allegedly hazardous condition was not obscured from the Plaintiff’s view, that the Plaintiff was not distracted by something else on the property, resulting in his failure to observe and react to the condition, and that the District maintained the field in a reasonably safe condition.  In opposition, the Plaintiff failed to raise a triable issue of fact.  Like the trial court, the Second Department took particular issue with the Affidavit of the Plaintiff’s expert which failed to explain how he reached any of his conclusions, including that the condition constituted a “trap for the unwary,” and failed to set forth any code or industry-wide standard violations.  Additionally, the Second Department took issue with the Plaintiff’s deposition testimony about how and why he fell which contradicted his prior sworn testimony given during his General Municipal Law § 50-h examination.
 
Accordingly, the trial court’s granting of the District’s Motion and the dismissal of the Plaintiff’s Complaint were upheld.

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]