Premises Pointers - Volume VIII, No. 1

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:

I once again can’t believe how the month has flown by with the Fourth of July right around the corner. June is always an important month at the firm because on June 1^st, Hurwitz Fine celebrated its 47^th anniversary. We opened our doors in 1977 with 4 lawyers and now have more than 50 lawyers across the state and in CT, which would not have happened without our clients, some of whom have been with us since the beginning and others who have joined along the way. Thank you for being part of our firm community!

This month, Premises Pointers writers Patrice C.S. Melville and Ashley M. Cuneo, from our Melville, NY office, recently authored an excellent article on “A Decade of Changes to Wrongful Death Statues Across the United States” in the American Bar Association (ABA)’s Tort Trial and Insurance Practice (TIPS) magazine, The Brief. This article is an excellent summary and analysis of the changes to the wrongful death statutes across the United States over the last 10 years. Patrice and Ashley identify two main trends in those changes, which include expanding who can recover for the death of a loved one, and what is recoverable. If you would like a pdf of the article, please reach out directly to Patrice or Ashley.

Our litigation and insurance teams have also been busy on the training front, with the following upcoming New York State Bar CLE presentations:

• Article 51 of NYS Insurance Law: Serious Injury Threshold & Basic Economic Loss (Presented by Transportation Law Member  Brian M. Webb) – Article 51 of New York State’s Insurance Law creates a unique framework for the types of damages that plaintiffs in most automobile accident lawsuits can recover.  This primer explains what that framework is, how to identify issues related to Article 51 and also strategy for how to approach damages in New York automobile cases.
• A Litigators Guide to Bad Faith Insurance Claims Handling (Presented by Insurance Coverage Members Lee S. Siegel and Brian D. Barnas) – Dive into the intricate world of bad faith insurance claims with our comprehensive course designed for litigators. This course offers an in-depth exploration of the legal principles, strategies, and practical approaches essential for handling bad faith insurance claims effectively. Whether you're a seasoned attorney or new to the field, this course will equip you with the knowledge and skills needed to navigate these complex cases with confidence. 

Closing out this month, our teams participated in the United Way Day of Caring last week, volunteering at the City Mission and CHC Learning Center (f/k/a Center for Handicapped Children, Inc.). This was the first time Hurwitz Fine participated with more than 2,000 volunteers across Buffalo and Erie County to provide service for 76 nonprofit organizations. I am so proud of our team for stepping up to the challenge!

I hope you have a great Fourth of July and cheers to another successful year of client service!

-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] 

6/07/2024        Hummel v. Target Corporation
United States District Court, Western District of New York
Plaintiffs’ motion for sanctions based on the alleged spoliation of security camera video evidence was denied and plaintiffs were ordered to pay reasonable attorney’s fees and costs associated with defending the motion.

Here, the incident at issue occurred in checkout lane 10. The only camera that could have captured the incident was camera 2, which was a movable camera that at the time of the incident was pointed in another direction. The crux of plaintiffs’ claim was that 1.) there was video footage of checkout lane 10 that was not saved; and/or 2) that Target did not save the video evidence from camera 2, even though it was pointed toward a different of the area of the store because according to plaintiffs, had such footage been kept it would have proven the camera was not pointed at checkout lane 10. Deposition testimony confirmed that all footage was reviewed and that there was no footage of checkout lane 10 at the time of the incident and that footage from an unrelated area of the store was not kept because it was not relevant. It is well settled that “a party seeking spoliation sanctions must necessarily show that the evidence at issue actually existed,’ since ‘spoliation sanctions can be imposed only when the party seeking such sanctions demonstrates that relevant evidence has been lost.” The Court here ruled that Plaintiff has failed to meet the threshold issue of demonstrating that video footage from camera 2 on the date and time of the incident ever existed in the first instance and that Plaintiff has offered only speculation to support its assertions that Target spoliated evidence.

6/14/2024        Cappuccilli v. Cokinos
United States District Court, Eastern District of New York
While not a retail case, in this auto case, plaintiff’s motion to remand case to state court was denied with the court noting that plaintiffs are the “masters of their own complaint” and control the amount of damages claimed.

Plaintiff Cappuccilli filed a negligence lawsuit in New York state court against Defendants Christopher and Peter Cokinos due to a car accident on January 14, 2024, in Oyster Bay, NY. The case was later removed to federal court on the grounds of diversity jurisdiction, as the parties are from different states and the alleged damages exceed $75,000. The Plaintiff moved to remand the case back to state court, arguing that the Defendants failed to demonstrate that the amount in controversy exceeds the $75,000 threshold required for federal jurisdiction. Since the Plaintiff's complaint did not specify the damages amount, Defendants provided a Bill of Particulars detailing significant injuries and economic losses likely exceeding $75,000, which the Court is permitted to look at in the absence of a clearly stated damages amount provided by plaintiff. The Court further relied on Plaintiff’s refusal to stipulate that damages are below $75,000 going so far as to note that “[F]ederal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement,” so long as the stipulation is “legally binding on all plaintiffs.” The Court denied Plaintiff's motion to remand, finding that the Defendants adequately demonstrated a reasonable probability that the amount in controversy exceeds $75,000, thus justifying federal jurisdiction.
 
6/24/2024         Betts v. Sixty Hotels, LLC, et al.
United States District Court, Southern District of New York
Hotel Defendants request for certification of an interlocutory appeal was denied.

We wrote about this case back in August 2023 (link here). 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’s motion for partial summary judgment was granted on the basis that defendants’ conduct constituted negligence per se and proximately caused plaintiff’s injuries. Defendants’ motion was denied. What followed was a request by Defendants to take an interlocutory appeal of the decision. Under 28 U.S.C. § 1292(b), “a district court can certify a question for interlocutory appeal if the issue involves a controlling question of law as to which there is substantial ground for difference of opinion and if an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Such requests are not often granted, and this case is no different. It was noted that “[w]hile the Court's application of the New York Education law may have been novel, “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” It was further noted that “a reversal of the August 2023 Opinion by the Second Circuit would not materially advance the ultimate termination of the litigation, as issues of liability would remain, albeit under a different standard, for resolution at trial.”

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

Hello Subscribers,

Enjoy summer! This month, I report on a discovery case involving a Jackson affidavit. The aptly named Jackson affidavit stems from Jackson v City of New York, 185 AD2d 768, 586 NYS2d 952 (1st Dept 1992), which requires a party to produce an affidavit from the individual who conducted the search of documents/missing records stating that the records sought could not be located and indicating the efforts undertaken to try and locate them. Best practices for complying to discovery includes evidence that an individual conducted a thorough search for the requested discovery in all areas where they were likely to be found, no documents were knowingly disposed of, and setting forth that party’s policies and practices for maintaining and preserving said documents, if any.
 
Please reach out with any discovery stories you may have involving Jackson affidavits. Until next issue, enjoy the summer weather!
 
Marc
 
6/06/2024          DiMaggio v Port Auth. of N.Y. & N.J.
Appellate Division, First Department
Jackson affidavit not required where defendants seek authorizations to enable them to obtain documents from others.
 
Plaintiff was allegedly struck in the face by a metal rod during a construction project at an airline terminal. The trial court granted defendants’ motion to compel discovery, pursuant to CPLR 3126, to the extent of compelling plaintiffs to provide a Jackson affidavit, identifying 19 prior incidents involving an individual named “Salvatore Di Maggio” involved plaintiff herein, if any, and to provide authorizations to obtain for records relating to those prior incidents.
 
The First Department reversed the trial court’s decision to strike the requirement of the Jackson affidavit and to provide that any authorizations may be limited to records related to injuries to or treatment of plaintiff’s face, mouth, head, cervical spine, and/or thoracic spine but otherwise affirmed. In this case, defendants have not asked plaintiffs to provide documents, but to provide authorizations to enable them to obtain documents from others. Thus, the trial court essentially required plaintiffs to treat the demand for authorizations as interrogatories asking plaintiff to state whether he was involved in each of the 19 prior claims or incidents.
 
Because plaintiffs acknowledged that “one or two” of the 19 prior incidents involved plaintiff and did not timely object to the demand for authorizations, the First Department affirmed that portion of the trial court’s decision compelling plaintiffs to provide authorizations for records related to claims made by plaintiff and incidents in which he was involved. Since plaintiff alleges the incident aggravated or exacerbated preexisting injuries, the Court further held that the authorizations should be unrestricted by date, but only for those body parts that have been affirmatively placed in controversy.

Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan 
 
The Duck-Billed Platypus (Ornithorhynchus anatinus) is one of the most unique animals in the world. It is a semi-aquatic mammal (native to eastern Australia) and one of five extant species of monotremes – mammals that lay eggs.  It is also unique in that it is one of a few species of venomous mammals.  If you are not fascinated with a mammal that lays eggs and is also venomous, you are in the wrong place.  Not only is the Platypus a unique creature and important to evolutionary biology, but it is also an iconic symbol to many (e.g., featured on the Australian twenty-cent coin, emblem of the State of New South Wales). While extraordinary and unique today, scientists have found evidence of three new species of monotremes. Fossil discoveries double the number of known monotremes species during the Cretaceous Period, as reported in Alcheringa: An Australian Journal of Paleontology.  These new findings indicate that monotremes may have thrived across Australia many years ago.  Of import, the study indicates that there may have been a slow progression in monotremes leading to toothless bills – another important feature to evolutionary biology.  I wonder if they eat Vegemite. 
 
I hope you enjoy the ride. 

Scott
 
5/17/2024           Hughey v. Brown Brothers Harriman & Co., et al.  
Supreme Court, New York County
Unsworn emails are inadmissible hearsay.
 
Plaintiff alleged sustaining injuries when an elevator (the “Elevator”) he was riding in at 140 Broadway, New York, New York (the “Premises”), dropped multiple floors (the “Incident”).  Plaintiff commenced an action against 140 BW, LLC (“Owner”), Jones Lang LaSalle Americas, Inc. (“Manager”), Harvard Protection Services (“Security”), and Schindler Elevator Corporation (“Schindler”).  Owner moved for summary judgment dismissing all claims and cross-claims asserting it had no ownership interest in the Premises and did not control, operate, or maintain the Premises, except those portions it leased.  Plaintiff’s opposition contended that the motion was premature. 
 
It is well established that "[a] grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence." Bailey v New York City Transit Auth., 270 A.D.2d 156, 157 (1st Dep’t 2000).  "The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion."  Singh v New York City Hous. Auth., 177 A.D.3d 475, 476 (1st Dep’t 2019).  
 
Owner provided the elevator service agreement between Manager, as agent, and Schindler, showing that at the time of the Incident, Schindler was responsible for maintenance and inspection services of the Elevator.  Additionally, Owner provided an Affidavit of Michael James Dow, the Senior Vice President of Brown Brothers, which asserts, that at no point has Owner had any ownership interest in the Premises, and never owned, "controlled, operated, maintained, repaired, manages, or leased the Elevator.  
 
In opposition, Plaintiff contended that he has not had a reasonable opportunity to procure necessary discovery, namely a deposition to corroborate the responsibilities and duties of Owner. In support of this contention, Plaintiff provided an email (the "Mannarino Email") from its investigator, Zachary A. Mannarino ("Mannarino") in which Mannarino states that he found Owner to be an owner of the Building.  The First Department has repeatedly held that unswom emails, that are not authenticated by affirmation, constitute inadmissible hearsay.  AQ Asset Mgt. LLC v Levine, 128 A.D.3d 620, 621 (1st Dep’t 2015).  Also, an affirmation of an attorney who lacks personal knowledge is without evidentiary value and is insufficient to oppose a motion for summary judgment.  Zuckerman v New York, 49 N.Y.2d 557, 563 (1st Dep’t 1980).  Here, Plaintiff failed to provide an affidavit authenticating the Mannarino Email, and the only other document submitted in opposition was the affirmation of counsel. As such, Plaintiff failed to meet its burden of presenting evidence in admissible form sufficient to establish an issue of material fact requiring a trial.
 
Motion Granted.
 
6/05/2024           Charles v. Nouveau Elevator Indus. Inc.  
Appellate Division, Second Department
Motion to vacate an Order requires reasonable excuse and a meritorious claim.
 
Plaintiff commenced the action against the Defendant to recover damages for personal injuries she allegedly sustained in July 2011, when she tripped while entering an elevator at the Nassau University Medical Center. Plaintiff alleged, inter alia, that the floor of the elevator was mis-leveled in that the floor of the elevator was approximately two inches higher than the floor of the building, and that this mis-leveling caused her to trip.
 
After the completion of discovery, Defendant moved for summary judgment dismissing the complaint. According to Plaintiff, she served opposition by email and mailed a copy to the Supreme Court for filing.  Defendant asserted that it also served reply in support of its motion on Plaintiff by email and mailed a copy of its reply to the court for filing.  The mailed copies of the opposition papers and the reply were not received by the Court.  
 
In an order dated August 17, 2020 (the “Order”), the Court granted Defendant's motion for summary judgment dismissing the complaint, noting that the motion was without opposition.  In October 2021, Plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order, and upon vacatur, to deny Defendant's motion for summary judgment dismissing the complaint.  In an order dated February 1, 2022, the Court denied Plaintiff's motion. Plaintiff appeals the Order.
 
"A party seeking to vacate an order entered upon his or her default in opposing a motion for summary judgment must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion for summary judgment."  Ferreira v. Singh, 176 A.D.3d 782, 783-84 (2d Dep’t 2019); see CPLR 5015(a)(1).  Here, Plaintiff provided a reasonable excuse for her failure to submit a timely opposition to Defendant's motion.  Moreover, on appeal, the defendant does not contest the Supreme Court's determination that Plaintiff established a reasonable excuse for her default in opposing Defendant's motion.
 
The Supreme Court found that Plaintiff failed to assert a meritorious opposition to Defendant’s motion.  Contrary to this determination, Plaintiff did assert a meritorious opposition.   Here, although Defendant submitted evidence to establish, prima facie, that it did not have actual or constructive notice of a mis-leveling condition, in opposition, Plaintiff raised a triable issue of fact as to whether the defendant had constructive notice of the alleged condition of the elevator.  Since Plaintiff proffered both a reasonable excuse for her default and a meritorious opposition to the defendant's motion for summary judgment, the Supreme Court should have granted Plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the Order, and upon vacatur, to deny Defendant's motion for summary judgment dismissing the complaint.  See Political Mktg., Int’l, Inc. v. Jaliman, 67 A.D.3d 661 (2d Dep’t 2009).   

Reversed.

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

Hi Readers,

Happy Summer! As it is now officially flip flops season, leading to an inevitable rise in trip and fall accidents, I figured we could all use a refresher on what constitutes a trivial defect in the eyes of the Court. This month’s offering consists of two cases that cover just that! Looking forward to a memorable summer and hoping the same for you!
 
5/29/2024        David Campbell–Ramdin v. Town Of Hempstead, et al.,                        
Appellate Division, Second Department 
There is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.
 
The plaintiff brought a personal injury action against the defendant property owner and others, seeking to recover damages for injuries allegedly sustained when he tripped and fell on a sidewalk abutting a parking lot on owner's premises. The defendants moved for summary judgment on the grounds that the defect was trivial in nature. The Supreme Court granted the motion and the plaintiff appealed.
 
On appeal, the Appellate Division held that there is no “minimal dimension test” or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. The Court went on to state that in determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury. The Appellate Division, finding that defendant established that the alleged defect was physically insignificant; that the accident occurred on a sunny day; and that there was nothing obstructing the plaintiff's view or path at the time of the accident, determined that the subject defect was trivial as a matter of law and therefore, not actionable. The Court affirmed the lower court’s decision.
 
6/11/2024      Brunilda Garcia v. Stop & Shop Saint Spyridon Greek Orthodox Church et al.
Appellate Division, First Department
A height differential of one-quarter of an inch was found to be a trivial defect as a matter of law.
 
The plaintiff alleged that she was injured when tripped and fell on sidewalk defect. The defendants moved for summary judgment on the ground that the defect, with a height differential of one-quarter inch, was too trivial to recover as a matter of law. The Supreme Court granted the motion. Plaintiff appealed.
 
On appeal, the Appellate Division, finding that the minor height differentiation was insufficient to establish the existence of a dangerous or defective condition for which defendants could be liable, affirmed the lower court’s decision.

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

6/20/2024      Town of Brookhaven v. New York Municipal Insurance Reciprocal, et al.
Appellate Division, Second Department
Towns effectively encouraged to ensure they are listed as an insured or additional insured on insurance policies issued to local government entities, e.g., villages, situated within respective towns because towns are responsible for the entity’s debts, liabilities, and obligations if the entity dissolves.

Plaintiff Town of Brookhaven  (the “Town”) commenced an action for declaratory judgment that: (1) the Town is an insured under an insurance policy issued by Defendant New York Municipal Insurance (NYMIR) to the Incorporated Village of Mastic Beach (the “Village”); and (2) that NYMIR and Defendant Wright Risk Management (WRM – NYMIR’s contract manager that provided insurance services for NYMIR) are accordingly obligated to defend and indemnify Plaintiff Town in regard to  personal injury claims originally asserted against the Town due to the Village’s dissolution in underlying actions pending in the Supreme Court. The Town argued that pursuant to General Municipal Law § 790 it assumed the Village’s debts, liabilities, and obligations upon the Village’s dissolution and thus became entitled to rights held by the Village, i.e., insurance coverage provided by NYMIR to the Village. Moreover, the Town argued that said insurance rights were transferred to it based on certain resolutions it adopted related to the Village’s dissolution. However, the insurance policy also included a provision that required written permission from NYMIR to transfer any rights under the policy.

At the trial court level, the Town moved for summary judgment and NYMIR and WRM cross-moved for summary judgment dismissing the complaint. The Supreme court denied plaintiff’s motion and granted defendants’ motion.

On appeal, the Second Department affirmed the order and remanded to Supreme Court for an order declaring that the Town is not an insured under the Village’s NYMIR policy; and NYMIR and WRM are not obligated to defend and indemnify the plaintiff in underlying pending actions.

In its reasoning, the Second Department stuck to a strict contractual interpretation of the policy, finding that the intent to extend the benefit of coverage to a third party was not evident within the four corners of the policy, and plaintiff failed to meet its burden to show otherwise. The policy was issued to the Village and did not expressly name the Town as an insured nor additional insured and it required explicit permission from NYMIR for transference of any rights under the policy, which was not obtained.

Moreover, the appellate division found that General Municipal Law § 790, which prescribes that a dissolved local government entity’s debts, liabilities and obligations are assumed by the town in which that dissolved entity sits, did not create an automatic vestiture of the Town’s rights under the Village’s insurance policy by operation of law.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Marc A. Schulz
[email protected]

Scott D. Kagan

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Kaitlin A. Sines

Jennifer I. Lopez
[email protected]