Premises Pointers - Volume VIII, No. 2

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:

It’s hard to believe we are already halfway through the summer. As always, this time of year seems to fly by! This is also when the FDCC (Federation of Defense and Corporate Counsel) hosts its annual meeting. This year it’s in the beautiful city of Toronto. While the meeting is not over yet, so far it has been a wonderful few days of learning, fellowship and breaking bread with new and old friends that make up the organization.

Back at the firm, we are excited to welcome two new associates, who we were lucky to have worked with at Hurwitz Fine as law clerks in 2023.

• Sara C. Zaprowski joins our Litigation Department, working with our Premises Liability, Municipal Litigation, Automobile Liability and School District teams.
• Lexi R. Horton joins our Insurance Coverage Department, focusing on insurance coverage analysis and litigation.

You will probably see these attorneys in future newsletter publications!

In seminar news, this week, Thursday, August 1^st, Transportation Team Leader Brian M. Webb will present on “Article 51 of NYS Insurance Law: Serious Injury Threshold & Basic Economic Loss” in partnership with the New York State Bar Association. 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 program is meant as a primer to explain 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. For more information and to register, click here.

Just after that, Commercial Litigator Andrea Schillaci will be a featured panelist in a presentation on “Tips and Tricks for How to Effectively Present Your Commercial Case in Court,” where she will speak on “Taking Your Case to Verdict: How to Think Like a Plaintiff’s Attorney in Prosecuting Your Commercial Dispute.” For more information and to register, click here.

I hope you enjoy the rest of your summer!

-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] 

7/20/2024         DeMatteo v. Walgreen Eastern Co, Inc.
United States District Court, District of Connecticut
Walgreens moved to dismiss the case on grounds of lack of subject matter jurisdiction was denied and improper venue, but case was transferred on jurisdictional grounds.

The case involves Gregory DeMatteo, a Connecticut resident, who filed a federal diversity negligence lawsuit against Walgreens after allegedly slipping and falling on a wet floor in a Walgreens store in Biddeford, Maine, during a vacation. Walgreens moved to dismiss the case on grounds of lack of subject matter jurisdiction, personal jurisdiction, and improper venue. The court found that DeMatteo met the $75,000 amount-in-controversy requirement for federal subject matter jurisdiction, thus denying Walgreens' motion to dismiss on this ground. However, the court agreed with Walgreens that Connecticut's long-arm statute did not provide personal jurisdiction over Walgreens for an incident occurring in Maine. The court found that Walgreens' advertising in Connecticut did not make it reasonably foreseeable that it would be sued in Connecticut for an accident in Maine. As a result, the court granted DeMatteo's alternative motion to transfer the case to the District of Maine, where the incident occurred and where proper jurisdiction and venue are established. The case was transferred to the District of Maine, and Walgreens' motion to dismiss for lack of personal jurisdiction was denied as moot due to the transfer.
 
7/08/2024            Holland v. Creative Environments, LLC
United States District Court, Northern District of New York
Summary judgment denied to resort defendant.

The case involves a negligence lawsuit filed by a plaintiff against Full Moon Resort, owned and operated by the defendant, after the plaintiff suffered injuries from a fall at the resort. The incident occurred on September 21, 2021, during a wedding event. After a post-wedding breakfast, the plaintiff tripped when her foot became caught in a tablecloth near a coffee station, leading to a fractured femur that required surgical intervention. The defendant removed the case to federal court based on diversity jurisdiction and subsequently filed a motion for summary judgment, arguing that it had no actual or constructive notice of the dangerous condition, did not create it, and that the condition was open and obvious. The plaintiff contended that the defendant created the hazardous condition and that there were genuine issues of material fact regarding the circumstances of the fall. The court found that there was sufficient evidence to support the  plaintiff's claims, particularly regarding the placement of the tablecloth and whether it constituted a dangerous condition. The court ruled that a genuine issue of material fact existed concerning the creation of the hazardous condition, thus denying the defendant's motion for summary judgment.
 
7/03/2024       Krutulis v. Daiker, Inc.
New York Supreme Court, Fourth Department
Defendants’ motion for summary judgment in state court based on trivial defect was denied.

This case involves a negligence lawsuit filed by plaintiffs against the owners and operators of a local restaurant. The plaintiff, Michelle Krutulis, allegedly tripped and fell on a step between an outside porch and deck at the defendants' restaurant. The defendants moved for summary judgment to dismiss the complaint, but the Supreme Court denied their motion. The defendants appealed this decision. The appellate court affirmed the lower court's decision, rejecting the defendants' arguments that: a) The defect was too trivial to be actionable; and b) The defect was open and obvious. Regarding the trivial defect argument, the court found that the defendants failed to meet their initial burden of establishing that the defect was trivial as a matter of law. The evidence presented, including photographs and the plaintiff's testimony, suggested that the step's characteristics and surrounding circumstances could potentially increase the risk it posed.

On the open and obvious argument, the court reiterated that even if a dangerous condition is open and obvious, it does not negate the duty to maintain premises in a reasonably safe condition. Rather, it only bears on the injured person's comparative fault. The appellate court unanimously affirmed the lower court's order without costs, allowing the case to proceed.

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

Hello Subscribers,
 
Continue enjoying summer! This month, I report on one brief discovery case following up on last month’s note explaining a Jackson affidavit. I also report on two related post-note of issue filing cases involving a motion to compel pursuant to CPLR 3126(2). Under that section, a court may issue an order “prohibiting [a] disobedient party … from producing in evidence designated things” as a sanction, if that party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed.” Before a court invokes the drastic remedy of precluding evidence based on the failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious. The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders and the absence of a reasonable excuse for their failures. Finally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter generally left to the discretion of the trial court.
 
Please reach out if you successfully won a post-note of issue motion to compel and/or preclude and share your experiences.
 
Marc
 
6/27/2024          Pettinato v EQR-Rivertower, LLC
Appellate Division, First Department
Defendant’s Jackson affidavit sufficient to affirm the denial of motion to strike defendant’s answer.
 
The trial court denied the EQR defendants’ and plaintiffs’ motions to strike defendant Owner’s answer. The First Department unanimously affirmed the trial court's decision. In response to numerous discovery demands, Owner advised the EQR defendants, as the previous owner, along with nonparty GreenOak and Slate Property would be in possession of the requested items. Pursuant to a court-ordered stipulation, Owner also provided a Jackson affidavit from Slate’s director of property management, who averred that Slate assumed all records relating to the apartment from the EQR defendants, and that Slate was not in possession of any videos, photographs, or documents in any format with respect to inspections performed prior to the accident. Additionally, in response to plaintiffs’ subpoenas, GreenOak served their response and included a copy of the property condition assessment report, phase 1 environmental site assessment report, and emails with attachments. Because Owner was created in name only, through which Slate purchased the building, and had no employees, Slate and GreenOak were the entities in possession of the relevant demanded discovery, which was provided by them to plaintiffs and the EQR defendants.
 
Moreover, neither plaintiffs nor the EQR defendants offered evidence that Owner had or controlled the discovery items that Owner stated it did not possess and both acknowledged that the requested discovery was neither generated nor maintained by Owner, but by nonparties Slate and GreenOak. That plaintiffs and the EQR defendants do not believe that Slate and GreenOak turned over their entire files does not matter.
 
 
7/10/2024          Plenty v New York City Tr. Auth.
Appellate Division, Second Department 
Defendants not entitled to preclude plaintiff from offering evidence on the issue of damages at trial or in opposition to any motion for summary judgment or, alternatively, to strike the note of issue and compel plaintiff to comply with outstanding discovery demands and order.
 
After the note of issue (“NOI”) was filed, defendants’ counsel conducted an “ISO ClaimSearch” about six months later, which revealed that plaintiff was in a subsequent accident. Defense counsel then served additional demands relating to the subsequent accident, including for HIPAA authorizations, a supplemental IME, and a supplemental deposition. Although plaintiff objected to the discovery demands pertaining to the subsequent accident on the ground that he did not sustain any physical injuries because of that accident, he supplied defendants with a HIPPA authorization permitting them to obtain the insurance claim file for the subsequent accident.
 
The trial court denied defendants’ motion, pursuant to CPLR 3126, to preclude plaintiff from offering evidence on the issue of damages at trial or in opposition to any motion for summary judgment as a sanction for failing to comply with various discovery demands and orders related to the subject and subsequent accidents or, alternatively, to strike the NOI and compel plaintiff to comply with those discovery demands and orders.
 
Here, the Second Department affirmed the trial court’s decision because, considering the totality of the circumstances, the Court held that defendants failed to make a clear showing that plaintiff willfully and contumaciously refused to comply with discovery demands and orders. Additionally, defendants’ motion to vacate the NOI was not made within 20 days of the filing of the NOI and the Court held defendants failed to proffer any evidence that there were unusual or unanticipated circumstances since the filing of the NOI warranting its vacatur.
 
 
7/10/2024          Samaroo v New York City Tr. Auth.
Appellate Division, Second Department 
Defendants not entitled to preclude plaintiff from offering evidence on the issue of damages at trial or in opposition to any motion for summary judgment or, alternatively, to strike the note of issue and compel plaintiff to comply with outstanding discovery demands and order.
 
This case is the same facts as the preceding case as plaintiff was a passenger in a vehicle that allegedly made contact with a commuter bus owned by defendant. Accordingly, the Second Department issued an identical decision as to the prior case affirming the trial court’s decision to deny defendants’ motion.

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

Dinosaurs have a certain glorification in our media (see Jurassic Park). The idea of massive reptile/bird-like creatures roaming the earth before man is fascinating to most. There is a certain mysticism to it. Everyone can name at least a few: Raptors, Triceratops, T-Rex; however, many fossil remains lead scientists and archaeologists to new-found species. Most recently, a new specimen named, Lokiceratops rangiformis, was unearthed in Montana (yes – here in the U.S.). This new species lived approximately 78 million years ago, as reported by paleontologist, Mark Loewen (and team) in PeerJ. This new species has distinctive bilateral bladelike horns (similar in appearance to a modern reindeer). It is believed that the horns were used to attract mates. Most important, the dinosaur’s name means “Loki’s horned face that looks like a caribou.”  That trickster. 
 
This is a very quiet month in vertical transportation law. The below case is tangentially related but may reflect a situation that any party in a similar suit may face upon the death of a Plaintiff. 
 
I hope you enjoy the ride. 
 
Scott
 
6/28/2024         Pancer, et ano. v. 4910 Equities, LLC, et al.  
Supreme Court, Kings County
Letters of Administration Required Surrogate Court Approval.
 
Plaintiff, Patricia Pancer (“Decedent”) commenced this action for damages for personal injuries. Plaintiff alleged that on January 16, 2016, she was lawfully on the premises when she was caused to trip and fall while exiting in an elevator (the “Elevator”) in the lobby due to a mis-level with the lobby floor, causing injuries (the “Incident”). Plaintiff alleges that Defendant were negligent and reckless in permitting the premises and the Elevator to be in a defective, dangerous, and hazardous condition. She alleges that defendants were negligent in failing to take suitable precautions for the safety of those using the Elevator. She claims that Defendants had actual notice of the dangerous condition prior to the Incident. 
 
On June 24, 2021, the action was stayed due to the death of Decedent.  A decree granting administration and letters of administration dated June 13, 2022, were filed with the Court.  David Pancer was named Administrator of the Estate of Decedent, and the caption was amended. 
 
Subsequent to the appointment of the Administrator, the matter settled for $75,000.  Plaintiff sought approval of the settlement pursuant to EPTL 5-4.6.  EPTL § 5-4.6 (a) provides, in pertinent part, that “[w]ithin sixty days of the application of an administrator appointment under 5-4. l ... in which an action for wrongful act, negligence or default causing the death of a decedent is pending, the court shall, after inquiry into the merits of the action and the amount of damages proposed as a compromise either disapprove the application or approve in writing a compromise for such amount as it shall determine to be adequate including approval of attorneys’ fees and other payable expenses as set forth below, and shall order the defendant to pay all sums payable under the order of the compromise.” See EPTL § 5-4.6 [a].  
 
The attorney affirmation submitted in support of the motion affirms that the “[d]ecedent's death was not related to the injuries she sustained on January 11, 2016.”  Because the decedent's death is not attributable to the negligence of the Defendants, this is not a wrongful death case which statutorily requires this Court's or the Surrogate's approval of a compromise order.
 
At oral argument on June 28, 2024, the parties clarified that the Court's approval is not sought pursuant to EPTL § 5-4.6, but rather based on limitations of the letters of administration. The letters of administration were issued on June 13, 2022, and imposed limitations on the Administrator.  Specifically, the letters limited the Administrator:  “[t]he Administrator is restrained from collecting and administering more than $10,000.00 in personal assets belonging to the decedent without further order from this court. And said Administrator is hereby restrained from compromising any cause of action until further court order pursuant to EPTL 5-4.6.”
 
In addition, there was concern over an outstanding Medicate lien, for which interest would soon be accrued, notwithstanding any pending settlement agreement. The Court determined that, although EPTL §5-4.6 does not apply here, the Court forwarded the matter to the Surrogate's Court for a prompt resolution of the proposed settlement terms agreed to by the parties to ensure the letters were properly complied with. 

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

Hi Readers,
 
I Hope everyone is enjoying their summer and taking some much needed and deserved time off. It's hard to believe this summer is almost over, and we will be gearing up for Halloween, Thanksgiving and Christmas in no time.
 
With winter around the corner, this month’s decision comes from the Third Department and deals with a property owner’s duty to maintain its premises, even if it is out of the state.
 
7/03/2024        Vance v. Burkhart
Appellate Division, Third Department
A property owner is still required to maintain it’s premises in a reasonably safe condition even if he/she is out of the state.

In December 2020, while on vacation in Florida, Mr. and Mrs. Vance agreed to dog sit for the Burkharts at their home. On December 16, 2020 there was snowstorm that carried over into the next day. Mrs. Vance cleared a small area on the deck for the dogs to use as a rest room. However, one of the dogs got stuck in the snow beyond the cleared patch on the deck. Mr. Vance was walking across the deck when he slipped and struck his foot on the deck, which was ultimately amputated.
 
Defendants moved for summary judgment arguing that they did not have a duty to the plaintiff as they did not have control over the area where the plaintiff fell; and, even if they had a duty, they were absolved of said duty due to the storm in progress doctrine; and they were not on notice of the alleged dangerous condition. The Appellate Division affirmed the lower Court’s decision and held that the defendants did not establish their prima facie entitlement to summary judgment.
 
Notably, in its discussion, the Appellate Division held that a property owner’s duty to maintain their premises in a reasonably safe condition continues even if they are out of the state. The property owners, who the Court found were on notice of the conditions of their premises, should have made reasonable arrangements for snow and ice removal (ie. delegated the duty to Plaintiffs or made arrangements with a third-party), which was not done.

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

6/26/2024          AB 511 Doe v. Lyndonville Central School District
Appellate Division, Fourth Department
Evidence of Defendant District’s inaction may be enough to defeat summary judgment motion on issue of whether the District had notice of foreseeable harm in tort action under the Child Victims  Act.

Plaintiff brought an action under Child Victims Act (CPLR 214-g) alleging he was sexually abused by his fifth-grade teacher while enrolled at Defendant School District in the 1980s. He claimed the incidents occurred repeatedly in the teacher’s classroom and other parts of the school during the day.

The Appellate Division Fourth Department affirmed the Supreme Court’s decision denying Defendant’s summary judgment motion to dismiss the causes of action for: (1) negligent failure to supervise the plaintiff; (2) negligent supervision of the teacher; and (3) negligent retention of the teacher.

As to negligent supervision of the plaintiff, the Appellate Division focused on the foreseeable consequences of the district’s inaction. It reasoned that even without actual or constructive notice of an individual’s criminal propensity, a school district may be liable for an injury that is the reasonably foreseeable consequence of circumstances it created by its omissions, and it need not have been aware of the teacher’s propensity to engage in criminal conduct, contrary to the defendant’s argument.

Here, the plaintiff raised a triable issue of fact whether the teacher’s sexual abuse of the plaintiff was a reasonably foreseeable consequence of the District’s and its employees’ failure to prevent an employee from routinely inappropriately touching other male students in the hallway; as well and its failure to prevent the teacher from creating situations where the teacher was alone with plaintiff by having plaintiff arrive early to school, keeping him after school, holding him back from going to other classes, or taking him out of class for no clear reason.

As to the causes of action for negligent supervision and retention of the teacher, the Appellate Division relied on similar facts in its analysis to determine that the plaintiff raised a triable issue of fact of whether the District knew or should have known of the employee’s propensity for the conduct that caused the injury. Specifically, since the subject teacher was alone with plaintiff in his classroom when another teacher walked in and observed the subject teacher sexually abusing plaintiff but failed to report it; and that subject teacher repeatedly had the plaintiff at the school beyond normal school hours; held him from going to other classes and took him out of classes with the awareness of other school employees. These submissions created a triable issue of fact on whether the District had notice of the potential foreseeable harm, thus successfully defeating defendant’s motion for summary judgment on the causes of action for negligent supervision and retention of the teacher.

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]