Premises Pointers - Volume VIII, No. 12

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:

This edition of Premises Pointers, we’re excited to share a series of updates, promotions and national recognitions throughout our firm.
 
Promotions in Our Litigation Team
We are proud to announce the well-deserved promotions of Ashley M. Cuneo, Patrice C.S. Melville, and Eric D. Andrew!

• Patrice C.S. Melville, a key member of our Melville litigation team, focuses on defending businesses and individuals in complex litigation matters, including premises liability, auto, and New York Labor Law claims.
• Ashley M. Cuneo has also played a pivotal role in our Melville office’s growth. Her practice spans general liability defense, including medical malpractice, auto, premises, and Labor Law litigation.
• Eric D. Andrew has been a member of Hurwitz Fine’s Labor Law team for nearly a decade. In addition to his work in Labor Law, Eric also focuses on construction accidents, toxic tort/environmental law, and insurance defense matters. Eric is also a longtime contributor of Labor Law Pointers, the group’s monthly publication that goes out to hundreds of industry professionals.
   

New General Litigation Department Leadership
We are also pleased to announce the appointment of V. Christopher Potenza and David R. Adams as Co-Chairs of our General Litigation Department. Their appointment reflects a shared commitment to exceptional client service and a strategic vision for the future of our litigation practice.

• V. Christopher Potenza is a widely respected litigator whose practice includes general liability, product liability, transportation, commercial litigation, medical malpractice defense, and nursing home negligence. He also leads both the firm’s Products Liability Team and Appellate Advocacy Team.
• David R. Adams leads the firm’s NYS Labor Law Team and has deep experience in defending complex and catastrophic injury claims. He also founded and leads the firm’s High Exposure/Catastrophic Injury (CAT) Team, which brings together a multidisciplinary group of attorneys and experts to manage high-stakes litigation.

National Recognition: New Organizational Appointments
We’re proud to recognize two of our attorneys who were recently accepted into nationally respected legal defense organizations:

• Brian M. Webb has been accepted into the Trucking Industry Defense Association (TIDA), an exclusive organization of attorneys and industry professionals who specialize in the defense of the trucking and transportation sector.
• Anastasia M. McCarthy was recently accepted into the National Retail and Restaurant Defense Association (NRRDA), a prestigious organization dedicated to defending retail and hospitality-related claims. This recognition underscores her professional excellence and growing leadership in the industry.

We’re proud of our team’s accomplishments and their continued efforts to deliver the highest level of legal service to our clients!

-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] 

5/7/2025          Annabi v. BJ's Wholesale Club, Inc.
New York State, Second Department
Defendants’ duty argument failed on summary judgment because they submitted in sufficient evidence to prove they did not own or control the property at the time of the incident.

The plaintiff commenced an action against Alpine Improvements, LLC and DLC Management Corporation (the defendants) to recover damages for personal injuries allegedly sustained in November 2018 when the plaintiff slipped and fell on snow and ice on real property purportedly owned and managed by the defendants. The defendants moved for summary judgment dismissing the complaint on the ground that their interest in the property terminated when the property was sold at a public auction. As noted by the court, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. The court reasoned that the defendants failed to establish their entitlement to summary judgment because they did not show they were no longer in possession or control of the property at the time of the plaintiff's alleged slip and fall. The Appellate Division reversed the trial court's order granting summary judgment to the defendants, reinstated the complaint against them, and modified the order according.
 
5/7/2025      Kaufmann v. Starbucks
Supreme Court of New York, New York County
Evidence that the plaintiff collided with someone before falling at a Starbucks location did not negate Starbucks potential liability under an overcrowded theory of negligence.

The court denied Starbucks' motion for summary judgment due to failure to meet its burden of proof. Starbucks failed to establish prima facie that it was not at fault for the accident. The plaintiff's concession that she collided with someone before falling is not determinative of proximate cause.

On July 8, 2021, Kaufman entered a Starbucks store to purchase food and drink. After receiving her order, Kaufman turned to leave, collided with someone, and fell to the floor. Kaufman alleges the store was overcrowded, creating an unsafe condition Starbucks argues Kaufman fell due to collision with another customer, not overcrowding. Kaufman does not know who she collided with or if was more than one person. The court concluded that Starbucks failed to meet its burden for summary judgment by relying on an attorney's affirmation without personal knowledge and a barista's testimony about events she did not witness. The question of proximate cause involving third-party intervention is fact-specific and generally left to the factfinder. There may be more than one proximate cause of an injury, so other parties' potential responsibility does not absolve. The court denied Starbucks' motion for summary judgment in its entirety.
  
5/7/2024      Kilmetis v. Wal-Mart Stores
United States District Court, Eastern District of New York
The main Walmart witness to the plaintiff’s slip and fall accident at Walmart was permitted to submit to written questions under FRCP 31 in lieu of an in person deposition due to his medical condition.

During discovery, a procedural dispute arose over deposing Colin Jones, a witness to key events that took place after plaintiff’s accident at Walmart. Jones's medical condition, which caused him to miss his deposition, led to the Court's decision to allow a deposition through written questions. Jones was the first on the scene after plaintiff's accident and drafted an incident report, catalogued evidence, preserved video surveillance, took plaintiff's statement, and provided information to Walmart Claims Services. However, Jones suffers from anxiety and panic disorders that are exacerbated by high stress events like depositions. He provided an affidavit and a letter from his treating physician detailing his condition and limitations. Litza Colon, an eyewitness to the accident, was deposed as an alternative witness. The potential testimony of Jones was deemed relevant and not cumulative to the case. Since he sufficiently demonstrated he was likely to endure an undue burden by sitting through an in-person oral deposition due to his medical condition, a deposition through written questions under Federal Rule of Civil Procedure 31 was permitted as an appropriate alternative that balances the need for Jones's testimony with the burden on him.

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

Dear Readers,

A few labor and employment items to report this month:

First, N.Y. State passed its 2026 budget earlier this month. At $254 billion, the long-awaited budget is the largest in state history.  The 2026 budget included legislation that:

• Allows striking workers to collect unemployment benefits after a two week waiting period—reduction from the three week waiting period in place before this legislation.
• Digitizes youth working papers for young people and their caregivers, schools, and employers and does away with the physical examination requirement previously in place.
• Allows the NYS Department of Labor to levy liens, seize financial assets, and issue stop work for judgments arising from unpaid wage theft.
• Increases the maximum penalties for illegal child labor violations.
• Clarifies available damages (including interest) in frequency of pay cases (if the employees were paid regularly on at least a semi-monthly basis).
• Allows resident and fellow physicians in accredited programs (Accreditation Council on Graduate Medical Education accreditation only) to treat injured and ill workers under the supervision of faculty physicians.
• Amends NY Worker’s Compensation law to permit Worker’s Compensation Carriers to pay for medical treatment, without accepting liability, for up to one year (beginning January 1, 2027).

At the federal level, the EEOC continues to prioritize its efforts to root out “illegal DEI”, anti-Christian bias and other forms of religious discrimination including antisemitism, “gender ideology”, and national origin discrimination (particularly when it comes to preferences for foreign workers over Americans) in the workplace. A summary of the EEOC’s actions since January, can be read here.

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

Hi Readers,

Summer is upon us. But, before we start dreaming of warm weather, sandy beaches, and palm trees, check out this month’s snow and ice case featuring a “battle of the experts.” This month’s case involves a slip and fall on ice, which the defendants argued occurred during a storm in progress. Three separate expert reports were submitted during the course of motion practice, but one of them failed to pass muster. This case serves as a reminder that expert reports must be based on more than just speculation or conjecture in order to either support summary judgment dismissal or prevent it. Enjoy the warmer days ahead and always make sure that your expert is, indeed, an expert.
 
5/21/2025            Grossman v. Bridgeview Holdings, LLC
Appellate Division, Second Department 
An expert affidavit that is not supported by the record and is speculative and conclusory is insufficient to defeat a motion for summary judgment pursuant to the “storm in progress” rule.
 
The plaintiff, who owned and operated a business that was a tenant at a premises owned by Bridgeview Holdings, LLC (“Bridgeview”), slipped and fell on ice in the parking lot of the premises on the morning of February 2, 2015. Bridgeview had contracted with the third-party defendant, W.C.J.L., Inc. (“WCJL”), for snow removal and salting services at the subject property. A winter weather advisory went into effect for the area on February 1, 2015, which did not end until 6:00 p.m. on February 2, 2015. According to weather records, snow began to fall at approximately 10:30 p.m. on February 1, 2015, and continued until February 2, 2015, at approximately 5:00 a.m., when the snow began to change to rain. Approximately three inches of snow fell onto the parking lot of the subject property. The plaintiff arrived at the premises on February 2, 2015, at 8:00 a.m., and parked his vehicle in the parking lot. As he exited his vehicle, the plaintiff noticed ice all over the parking lot and slowly walked across the parking lot before he lost his balance and fell.
 
The plaintiff filed suit against Bridgeview, who filed a third-party action against WCJL. Bridgeview and WCJL moved for summary judgment dismissing the complaint and third-party complaint, respectively, on the grounds that a storm was in progress at the time of the plaintiff’s accident and that WCJL’s ameliorative efforts during the storm were performed in a reasonable manner. In support of their motions, both Bridgeview and WCJL submitted admissible weather data and the affidavits of their own individual meteorological experts who both opined that there was an ongoing winter storm at the time of the plaintiff’s accident and that the ice and snow the plaintiff slipped on was consistent with the ongoing precipitation event that day.
 
In opposition to Bridgeview and WCJL’s motions, the plaintiff argued that there was a question of fact as to whether he slipped and fell on old ice that had originated from a prior snowfall on January 27, 2015. Plaintiff submitted his own certified weather reports and the affidavit of his  own expert meteorologist who opined that the ice that caused the plaintiff’s accident was formed as a result of the substantial snowfall on January 27, and that the ice “likely” formed because the snow was incompletely removed, “or” returned with drifting on the 28th, “or” that the large snow piles melted and then refroze into ice. The lower court found the plaintiff’s expert report, offering multiple possible causes for the existence of the subject ice, to be speculative since none of the deposition testimony supported the contention that plaintiff slipped on ice that existed prior to the storm in question. The lower court granted the defendants’ motions, and the plaintiff appealed.
 
On appeal, the Second Department, agreeing with the lower court’s ruling, found that Bridgeview and WCJL met their prima facia showing that there was a storm in progress at the time of the plaintiff’s accident and that the plaintiff’s expert affidavit, not supported by any evidence in the record, was speculative and therefore failed to raise a triable issue of fact.  

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

By: Elizabeth K. Ognenovski [email protected]

Hello Readers,
 
After what has felt like an endless stretch of gray skies and relentless rain, summer is finally making its long-awaited entrance. This month, I have two (2) cases for you. The first case examines whether a party launched a force or instrumentality of harm and the second case dives into a more emotionally charged scenario: an employee’s decision to use deadly physical force as an alleged form of self-defense and whether it was justified.

5/6/2025       Schulman v. Alliance Energy LLC
Appellate Division, First Department
A party can be said to have “launched a force or instrumentality of harm [when] they [have] made the area less safe than it was before they acted”
 
This action arises from an alleged trip and fall that occurred on a sidewalk in front of American Retro Restaurant and Bar. The plaintiff alleged the incident occurred when his feet became tangled up in a hose from an air machine that was installed adjacent to the sidewalk on the premises of a Mobil gas station. The Mobil was owned by third-party plaintiff Alliance Energy LLC. Third-party defendant Service Station Vending Equipment, Inc. (“SSVE”), installed the air pump at the gas station. Third-party defendant SSVE filed a motion for summary judgment to dismiss the third-party complaint and cross claims against it. The New York County Supreme Court denied the motion.
 
On appeal, the First Department unanimously affirmed. The Court held SSVE failed to make a prima facie showing that it did not launch a force or instrument of harm by placing a service station's air pump hose in a location adjacent to a sidewalk so that the hose could present a tripping hazard. The Court referenced testimony from the service station’s owner that it was either a mutual decision or the decision of SSVE as to the location of the air pump’s hose. In addition, SSVE’s witness testified that the location was made by both SSVE and the service station that owned the property. The Could further determined “while SSVE argues that plaintiff offers only speculation about the cause of his fall, plaintiff's testimony that he "remember[ed] getting ensnarled [and] tangled," identification of the hose as belonging to the air pump, and the photos of the hose and its placement provides "sufficient facts and circumstances from which causation may be reasonably inferred" and presents an issue of fact.

5/14/2025       Gibbs v. 1429 Food Corp.
Appellate Division, Second Department
Conflicting testimony regarding violent threats and video surveillance which failed to depict a weapon raised a triable issue of fact as to whether a defendant was justified in using deadly physical force against the plaintiff.
 
This personal injury matter arises from a physical altercation between the plaintiff and the defendant employee who worked at the defendant Kennedy Fried Chicken. The plaintiff allegedly asked the defendant employee for change for a twenty-dollar bill. When the employee told the plaintiff he would not provide change for the bill, a verbal exchange and physical altercation occurred and the plaintiff was struck in his right elbow with a foot-long kitchen knife by the defendant employee. The incident was captured on surveillance and depicts a customer pulling back the plaintiff who began withdrawing from the encounter. The defendant employee then charged toward the counter with a knife and swung/lunged the knife at the plaintiff. The defendants moved for summary judgment to dismiss the complaint and argued that the defendant employee acted justifiably in self-defense by using the knife. The Kings County Supreme Court granted the defendant’s motion. The court issued a judgment, upon the order, in favor of the defendants and against the plaintiff dismissing the complaint.
 
On appeal, the Second Department reversed. The Court explained that the defendants’ submission “were insufficient to eliminate triable issues of fact as to whether [the defendant employee’s] use of the knife was readily capable of causing death or serious physical injury to the plaintiff, regardless of the degree of injury [the defendant employee] intended or actually inflicted, and thus, constituted the use of deadly physical force.”
 
The defendant employee testified that he used the knife after being threatened by the plaintiff, who allegedly stated an intent to kill him. However, the plaintiff's account of the incident did not include any such threats and the video evidence failed to indicate that the plaintiff displayed or possessed a weapon. The Second Department held the conflicting accounts raise questions as to whether the defendant employee was the “initial aggressor” in the altercation, as the first person to use or threaten the imminent use of deadly physical force. The Court determined that the evidence presented, including the video and testimony, created triable issues of fact regarding the reasonableness of the defendant employee’s belief that the plaintiff was about to use deadly physical force.

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