Premises Pointers - Volume VIII, No. 11

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:

Earlier this month, we sent out a Special Edition of Premises Pointers, highlighting a groundbreaking shift in New York law. On April 17, 2025, the New York Court of Appeals overruled its 2006 decision in Bard v. Jahnke, reinstating negligence as a viable cause of action in domestic animal injury cases. Rochester attorney Bradon Carlson provides insight into the implications of this pivotal ruling.
 
We’re also pleased to share a new national resource: Hurwitz Fine, in collaboration with the Harmonie Group’s Medical Malpractice Committee, recently contributed to a 50-State Wrongful Death Compendium. This guide offers a quick-reference overview of wrongful death statutes across the country, answering key questions about statutory language, recovery rights, and applicable limitations periods.
 
And on a celebratory note, we wrapped up Administrative Professionals Week last week with fun events each day to show appreciation for our incredible support staff—over 50 strong—across our Buffalo, Rochester, and Long Island offices.
 
As always, thank you for reading!

-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] 

This month, while a retail case, the real issue is an attorney’s use of AI to conduct legal research, which resulted in fake cases being cited to the district court judge. The attorney was sanctioned by the court under Rule 11 of the Federal Rules of Civil Procedure.
 
04/24/2025        Benjamin v. Costco Wholesale Corp.
United States District Court, Eastern District of New York
One procedural mistake after the next in this retail case ultimately led to conduct that was sanctioned by the district court—Plaintiff’s counsel was sanctioned for citing fake cases to the court in support of a motion to remand.
 
Plaintiff commenced this action in New York State Court against Costco who removed the case to federal court. Thereafter, plaintiff filed a motion to remand back to state court. On January 6, 2025, defendant Costco filed an untimely opposition to the motion to remand. It was 4 days late.
 
According to the court, what followed “was a wholly unnecessary letter-writing campaign by the parties.” First, Costco wrote to the court on January 7, 2025 citing law office failure as the reason for Costco’s late submission consenting to an extension for plaintiff to submit a Reply. Next, plaintiff’s counsel filed a letter asking the court to disregard Costco’s late submission. The court deemed both submissions as motions—Costco’s submission was considered an after the fact motion for an extension and plaintiff’s letter was considered a motion to strike the untimely submission. The court denied both motions until after the required “meet and confer” took place. Plaintiff’s counsel continued to take an aggressive position opposing Costco’s extension request. On January 15, 2025, the court ultimately granted Costco’s request for an extension and ordered plaintiff to reply by January 17, 2025. Plaintiff did not seek an extension but did file a reply at 8:52 p.m. on the 17^th. It is this reply that is the subject of the sanctions order.
 
When the court began to review the pending motion to remand, five of the seven cases cited in the reply could not be located. Therefore, the court ordered plaintiff’s counsel to show cause and to furnish copies of the case cited in plaintiff’s reply. Since the cases were fake, plaintiff's counsel conceded she used an AI tool called ChatOn to generate them stating she had very little time to prepare the reply. A hearing was then held on April 16, 2025, at which time plaintiff’s counsel said she directed her paralegal to prepare the reply and that since the work product required substantial revision she turned to AI and phony case law was generated. Plaintiff’s counsel cut and pasted the content from ChatOn and made no effort to check the cases. Plaintiff’s counsel also conceded she made no effort to ask the court for an extension.
 
The court determined that the conduct constitutes subjective bad faith warranting sanctions under Rule 11. A monetary sanction of $1,000 was deemed appropriate for an attorney who submits fake AI-generated case citations but expresses remorse and takes remedial action.

04/01/2025       Kirbaran v. Target Corp.
United States Court of Appeals for the Second Circuit
On appeal, the Second Circuit affirmed the District Court’s grant of summary judgment to Defendant Taret rejecting Plaintiff’s argument that New York’s summary judgment standard applicable to slip and fall cases should be applied.

The plaintiff argued that the district court erred by applying the federal summary judgment standard instead of the New York standard. As stated by the court, under Rule 56, “the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." The issue of burden of proof is procedural. Therefore, in a diversity action federal procedural law applies. This is significant because in slip and fall cases, the question of notice to the defendant is often evidence plaintiffs do not have and as a result they often cannot oppose summary judgment motions that point to the lack of evidence on the issue of notice.

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

Dear Readers,

We continue to track changes affecting the workplace in New York State as well as at the federal level. If you require assistance navigating these various developments, please contact us.

Recently, in response to the Governor’s budget, the NY State Senate introduced its own one-house budget bills. Interestingly, the Senate’s legislation and budget includes extensive childcare funding intended to return parents to the workforce. Highlights include:

$500 million for a Child Care Workforce Stabilization fund—The fund is intended to expand the childcare workforce in order to make childcare more widely available.

$25 million for expanding non-traditional-hour childcare.

At the federal level, the EEOC has issued guidance and a press release related to corporate Diversity, Equity, Inclusion, and Belonging policies and programs. I am happy to help guide you should you require it.

 
Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]

Hi Readers,

Happy spring!

One of the cases this month deals with one of the exceptions to the Espinal Doctrine – launching a force or instrument of harm. The courts have previously held that merely salting does not launch an instrument of harm. However, the first case, from the Fourth Department, notes a distinction where liability can be imposed.

The second case deals with a holding we are all too familiar with. Absent specific information regarding cleaning and inspection practices and evidence of when an area was last cleaned or inspected, defendants are not entitled to summary judgment due to lack of notice.
 
04/25/2025     Crockett v Home Depot, et al
Appellate Division, Fourth Department
A question of fact exists as to whether a snow-removal contractor launched a force or instrument of harm when it used rock salt.
 
This case deals with a few different issues. However, this summary focuses on the one regarding JA Krantz’s motion for summary judgment, only.
 
Plaintiff filed suit after slipping and falling on ice in the parking lot on property owned by Home Depot USA and Home Depot Store #1287. Home Depot hired RWC Landscape Services Management to perform, in part, snow and ice removal; RWC subcontracted these serves to JA Krantz Landscape Design.
 
Plaintiff and Home Depot appeal from an order, from the Trial Court, granting RWC and JA Krantz’s motion dismissing plaintiff’s complaint against JA Krantz. The Appellate Division held that although JA Krantz met it’s burden of proof by establishing that plaintiff wasn’t a party to the contract, plaintiff through an expert affidavit created a question of fact demonstrating that in light of the temperature on the date of loss, rock salt would have caused the snow and ice to melt and then refreeze. The Appellate Division reinstated the complaint against JA Krantz.
 
04/23/2025     Ravello v Long Island RR
Appellate Division, Second Department 
Information regarding general cleaning and inspection practices, and failure to provide information regarding when the loss location was last inspection or cleaned is insufficient to prove that defendant did not have notice of the alleged dangerous/defective condition.
 
While at the Hicksville train station, on the eastbound platform, plaintiff slipped and fell on black ice. The Trial Court granted defendant’s motion for summary judgment, dismissing plaintiff’s complaint. The Appellate Division, Second Department, revered the Trial Court and reinstated plaintiff’s complaint.

The Appellate Division held that defendant failed to establish a prima facie entitlement to summary judgment. Defendant’s station cleaner could only testify to his general cleaning and inspection practices, and did not specify when he last cleaned or inspected the area where plaintiff fell relative to the subject accident.

Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
Golf season is upon us and as golfers dust off their clubs and return to the fairways, a recent decision from the Court of Appeals reminds us that legal risks can be as much a part of the game as sand traps and water hazards. In a newly issued opinion, the court examines the application of the "assumption of the risk" doctrine for two (2) cases involving two (2) different types of incidents which occurred on a golf course and in the parking lot of a club.

04/15/2025        Katleski v. Cazenovia Golf Club, Inc.
New York State Court of Appeals
The primary assumption of risk doctrine may apply when "[a] person who chooses to participate in a sport or recreative activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which [their] injury occurred, so long as [they are] aware of the potential for injury of the mechanism from which the injury results." 
 
This action arises from an incident that occurred when the plaintiff was struck by a golf ball while in a golf tournament at a golf course owned and operated by the defendant Cazenovia Golf Club, Inc. During the third round, the plaintiff was riding in a golf cart on the seventh fairway looking for a ball when he was struck in the eye by the ball of another player that was teeing off from the third hole. The third hole ran roughly parallel to the seventh hole but in the opposite direction. The plaintiff commenced a negligence action and alleged that the golf course was negligently designed and operated.
 
At his deposition, the plaintiff testified that he had been a member of the golf club for eighteen (18) years. Prior to his incident, the plaintiff had played the golf course approximately 100 times and on the date of his incident, he played the course twice. He further testified that on the date of his accident, he mentioned to other golfers that the placement of the tee box “was dangerous due to the lack of a clear line of sight between that box and the seventh hole.” The defendant’s discovery indicated that the tee box that “was used to make the shot that injured the plaintiff (tee box "A") was installed approximately a decade prior to the accident to increase the difficulty of the third hole and was predominantly used in tournaments.” The layout of the golf course had been substantially the same since the time it was constructed in 1924.
 
The defendant golf club moved for summary judgment and argued the plaintiff voluntarily assumed the risk of being struck by a golf ball when he chose to be in the tournament. In support of his opposition, the plaintiff submitted an expert affidavit regarding the dangers of the golf course’s layout. The Madison County Supreme Court denied the defendant’s motion and held the plaintiff’s expert raised a triable issue of fact as to whether the risk was unreasonably enhanced. The defendant golf club appealed and the Third Department reversed and granted the golf club's motion in a split decision.
 
On appeal, the issue before the Court of Appeals was whether the plaintiff raised a triable question of fact that the placement of tee box A on the third hole unreasonably enhanced that risk. The Court held that it was not enough for the plaintiff to “to show that the layout of the course was less safe than it ideally could have been; he must show that the design enhanced the inherent risk of being struck by a ball beyond what is customary in the sport.” The plaintiff failed to rebut the defendant club’s argument and the defendant’s expert affidavit that it was common for golf courses to lack clear visibility and barriers between holes. The Court held there was no basis to conclude that the course’s design gave rise to an “enhanced” risk as there was no evidence in the record to infer the risks of the golf course exceeded the risks presented by comparable facilities.
 
The plaintiff failed to also raise a question of fact as to whether the “inherent risks of golf were unreasonably enhanced” by the course’s design. The Court explained that the defendant club presented “unrebutted evidence that the placement of tee box A served a competitive purpose—namely, increasing the difficulty of the third hole ‘to conform with more modern golf.’"
 
The Court of Appeals determined the that Third Department correctly held there was no question of fact as to whether the defendant club unreasonably enhanced the risk of players being struck by golf balls and thus the plaintiff must be deemed to have assumed that risk.
 
Mary E. Galante v. Robert G. Karlis et al.
 
The plaintiff commenced this action after she was injured in the parking lot at Elma Meadows Golf Course. On the date of her incident, the plaintiff was driving a golf cart in the defendant’s parking lot and went to obtain her golf clubs when her cart collided with a car. The plaintiff was ejected onto the pavement. The plaintiff moved to strike the County’s assumption of risk defense and the County cross-moved for summary judgment to dismiss the complaint based on the assumption of risk defense. The Fourth Department denied the plaintiff’s motion and explained that although the plaintiff was not actively engaged in golf at the time of her accident, her incident occurred “in a designated recreational venue.” The Fourth Department held that “the risk of being injured while driving a golf cart is inherent in the sport of golf and that plaintiff was aware of that risk and assumed it.”
 
On appeal, the Court of Appeals explained that “‘persons injured while traversing streets and sidewalks’ generally are not subject to the doctrine because this ‘would create an unwarranted diminution of the general duty of landowners—both public and private—to maintain their premises in a reasonably safe condition,’ potentially ‘swallow[ing] the general rule of comparative fault.’” The plaintiff’s accident occurred while driving a golf cart in the parking lot and thus she was not participating in an athletic activity at the time of her injury. The Court of Appeals reversed the Fourth Department’s decision as to plaintiff’s motion insofar as it sought to dismiss “the 11th affirmative defense on behalf of the County granted, and the case remitted to the Appellate Division for consideration of the issues raised but not determined on appeal to that Court.”

04/16/2025       Lisker v. Vue Catering, Inc.
Appellate Division, Second Department
New York Courts continue to emphasize and hold that to establish a lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.
 
This action arises out of a slip and fall that occurred in February 2020. The plaintiff was attending a wedding at a facility that was owned by the defendant. She slipped and fell on flower petals. The defendant owner moved for summary judgment and argued that it did not create the alleged condition or have notice of the condition. The Kings County Supreme Court granted the defendant’s motion.
 
On appeal, the Second Department reversed. The Court held the deposition testimony and affidavit submitted by the defendant with respect to its general cleaning procedures were insufficient to establish a lack of constructive notice. The Second Department held that the defendant failed to meet its initial burden as the defendant did not submit any specific evidence regarding when the area in question was last cleaned or inspected “or any other affirmative proof to demonstrate how long the condition had existed.” The Court held the lower court should have denied the defendant’s motion for summary judgment to dismiss the complaint

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Marc A. Schulz
[email protected]

Anastasia M. McCarthy
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Elizabeth K. Ognenovski
eko@hurwitzfine.com