|
NOTE FROM THE EDITOR:
I’m excited to announce that Hurwitz Fine has earned Midsize Mansfield Certification “Plus” status for the 2023 – 2024 year! This 12-month certification tracks and measures our commitment to achieving greater diversity in leadership roles and client teams. This marks the second time Hurwitz Fine has received this prestigious national recognition, reflecting our ongoing dedication to fostering an inclusive workplace and promoting equity within the legal profession. In addition, Hurwitz Fine was the first Buffalo-based law firm to achieve this national certification last year. In fact, I recently had a chance to speak to other Buffalo law firms at the Western New York Legal Diversity Career Fair about the benefits provided to our firm through our participation with the Diversity Lab in obtaining our certification. I was happy to share our positive experience and what we learned over the last several years with my colleagues in the legal community. I would love to chat with anyone interested in learning more about Mansfield or other diversity initiatives. To read more about this national diversity certification, click here.
Last month, we announced that October was Estate Planning month. To close out this month, I am including an excellent educational article from Trusts & Estates Attorney Melissa A. Pezzino, on “Meeting the Unique Needs of Gen X And Millennials.” While traditional estate planning is often a priority for older generations, these two younger generations face unique health risks, financial transitions, and family dynamics. With rising chronic health issues and a substantial inheritance anticipated from Baby Boomers, many are prioritizing arrangements like wills, trusts, and healthcare directives to secure their legacy and loved ones. Key considerations of these generations include new components including managing digital assets, planning for blended family dynamics, ensuring pet care, and providing for business continuity. Estate planning also allows these generations to incorporate philanthropic goals, specify end-of-life preferences, and navigate complex digital and familial assets, ensuring that their wishes are upheld and their values reflected. To read more on these unique estate planning needs, click here.
Finally, Happy Halloween!
-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]
The Burgess v. Costco case is a reminder that grounds for summary judgment may exist if plaintiff fails to produce competent medical evidence establishing proximate cause between the alleged negligence and the claimed injuries. While medical causation is not often argued on motion, it is a valid argument to make in the appropriate case and in Burgess in was successfully argued.
09/27/2024 Burgess v. Costco Wholesale Corporation
United States District Court, Southern District of New York
Following the removal of the lawsuit to Federal Court and litigation of action, Costco move for summary judgment on 2 grounds: 1. Lack of proof on medical causation and 2. Lack of proof of notice. The motion was granted but only on medical causation and not lack of notice.
On November 24, 2017, Burgess parked her car in the Costco parking lot and walked from her car to the warehouse using the pedestrian crosswalk and had no issues. Upon exiting the store, Burgess’ right foot and the right wheel of her shopping cart got stuck in a hole, causing her to fall. According to Costco, the pavement suddenly collapsed, causing Burgess’ right foot and the right rear shopping cart wheel she was pushing to fall into a newly formed hole. In support, Costco points to a portion of Burgess’ deposition where she testified that “the wheel of the shopping cart and me created the hole.” Burgess explained, “when the people help[ed] me, when they tried to pick up the—and then even bigger hole. We made the bigger hole and deeper hole, so big hole.” In contrast, Burgess disputes the characterization that she fell into a “newly formed hole.” Instead, Burgess asserts that the hole existed before her trip to Costco that day. In support, she provides screenshots from Google Maps, which pre-date the incident by about a month, to demonstrate that the hole existed before she fell in it.
Summary judgment ground #1 – Costco argued there was no evidence that it created the defective condition in the crosswalk or that it had actual or constructive notice of any defect. On this point, the court denied the motion citing to questions of fact particularly with regard to whether the hole in the parking lot was visible and apparent. The court found that it would not be unreasonable for a jury to conclude from these photos that the hole in the Costco parking lot was visible and apparent enough to support a finding that Costco had constructive notice of the hole.
Summary judgment ground #2 – Costco also argued that Burgess failed to provide expert medical evidence establishing causation, as required by Federal Rule of Civil Procedure 26(a)(2)(b). More specifically, Costco claimed that Burgess needed to provide expert medical evidence to establish causation because Burgess alleged complex injuries having multiple potential etiologies. The court ruled that the failure to comply with Rule 26 was not the crux of the problem; but rather Burgess’ failure to prove an essential element of her claim, proximate causation. The court determined that Burgess failed to present non-conclusory medical evidence that her injuries were proximately caused by her fall at Costco and therefore failed to make out an “essential element” of the claim. Therefore, Costco’s motion was granted.
*An appeal was filed on 10/24/24.
09/30/2024 Kissoon v. Wal-Mart Estate Business Trust
United States District Court, Eastern District of New York
Retailer’s motion for summary judgment motion is granted despite evidence employee failed by follow policy of guarding spill.
Plaintiff was walking in the makeup aisle when she slipped on a “soapy white liquid.”
Surveillance footage of the accident depicts an unidentified child creating the spill at 1:44:30 p.m. Approximately 4 minutes later, having been notified of the spill, a store employee placed a towel over the spill and then moved away from the spill. Approximately 1 minute after that, plaintiff slipped on the spill and fell to the ground. The employee informed her that the liquid had been on the floor for a few minutes and that the employee had “radioed for someone to come and put a cone there and [for] a cleaning crew.” Pursuant to Walmart’s protocol, employees who observe a spill to guard the area to prevent anyone from slipping in it while they call for help, or until they see another employee who could get help. The employee involved in this incident did not follow this protocol. Despite this, Walmart’s motion was granted. The court reasoned that the record sufficiently demonstrated that Walmart did not have a reasonable time to remedy the spill after the employee was made aware, and the employee's failure to adhere to story policy is not a basis for denying the motion and imposing liability on Walmart.
*An appeal was filed on 10/24/24.
|
|
|
|
School District Liability
By: Anastasia M. McCarthy [email protected]
Dear Readers,
Happy Halloween. Glad to be back for another edition of Premises Pointers.
-Anastasia
07/10/2024 Jose Davila v. Orange County and Enlarged City School District of Middletown
Appellate Division, Second Department (Available upon request)
Where a public school district’s formulation and implementation of an IEP for a student at a boarding school is not, on its own, a sufficient basis to find the student to be within the “orbit of authority” of the district.
Plaintiff filed a Child Victims Lawsuit against Orange County and Enlarged City School District of Middletown alleging that, in the 1990s (when he was 13 years old), he was sexually abused while residing at the McQuade Foundation Boarding School. The alleged abuser was an employee of the Boarding School.
On motions for summary judgment, the Trial Court granted defendants’ respective motions for judgment in their favor—specifically, the Trial Court dismissed plaintiff’s negligence claim against the District as well as plaintiff’s claims of negligence and negligent hiring/retention/and supervision against the County. The Second Department affirmed holding that the District owed the plaintiff no duty of care while he was a student at the Boarding School because he was not a student in the District’s physical custody or “orbit of authority.” The Court did not accept the plaintiff’s argument in opposition, that the District brough the plaintiff into its “orbit of authority” when it formulated and implemented an IEP for the plaintiff (“In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, any continuing duty of the District to formulate and implement the plaintiff's individualized education program does not alone bring the plaintiff within the District's orbit of authority.”)
07/02/2024 Blanchard v. Moravia Central School District et al.
Appellate Division, Fourth Department
The Fourth Department steps away from past negligent supervision caselaw requiring Plaintiff to establish that Defendant had prior notice of the tortfeasor’s past conduct of a same or similar nature to that at-issue in order to impose liability for negligent supervision.
Plaintiff filed a CVA lawsuit alleging that he was sexually abused by his school principal in the early 1980s. The abuse allegedly occurred when plaintiff was called out of his classroom over the school’s PA system, led to the principals office by a secretary, and then left alone, in private and behind a closed windowless door, with the principal who then sexually abused him. The same pattern occurred at least 50 times over two years. The principal never gave the plaintiff’s teachers a basis for his trips down to the office and it should have been clear to the plaintiff’s teachers that the visits were not disciplinary in nature.
The Fourth Department denied a defense motion on the issue of prior notice.
With respect to the second cause of action, for negligent supervision of plaintiff, it is well established that “[a] school district has the duty to exercise the same degree of care and supervision over [students] under its control as a reasonably prudent parent would exercise under the same circumstances” (Lisa P. v. Attica Cent. School Dist., 27 A.D.3d 1080, 1081, 810 N.Y.S.2d 772 [4th Dept. 2006]). “The standard for determining whether this duty was breached is whether a parent of ordinary prudence placed in an identical situation and armed with the same information would invariably have provided greater supervision” (id. [internal quotation marks omitted]). Prior knowledge of an individual's propensity to engage in criminal conduct is not required to establish a claim for the negligent supervision of a student inasmuch as there are situations in which such conduct *1100 “may ... be a reasonably **836 foreseeable consequence of circumstances created by the defendant” (Murray v. Research Found. of State Univ. of N.Y., 283 A.D.2d 995, 997, 723 N.Y.S.2d 805 [4th Dept. 2001], lv denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 [2001], quoting Bell v. Board of Educ. of City of N.Y., 90 N.Y.2d 944, 946, 665 N.Y.S.2d 42, 687 N.E.2d 1325 [1997]).
In other words, even without actual or constructive notice of an individual's criminal propensity, a school district may “be held liable for an injury that is the reasonably foreseeable consequence of circumstances it created by its inaction” (Doe v. Fulton School Dist., 35 A.D.3d 1194, 1195, 826 N.Y.S.2d 543 [4th Dept. 2006]).
Ultimately, while the Court agreed that the defendants met their initial burden to show that their employees had no notice of the principal’s propensity to sexually abuse children, the plaintiff raised a triable issue of fact by pointing to evidence that the principal’s abuse of the plaintiff was a reasonably foreseeable consequence of the District’s failure to prevent the principal from repeatedly meeting alone with the student, behind closed doors, for not articulated purpose.
10/24/2024 L.K. et al. v. Niskayuna Central School District
Appellate Division, Third Department
But see, where the “formula” for “constructive notice of prior similar conduct” remains unchanged.
Plaintiff, a ninth grade student at the time of loss, was physically injured when he was suddenly physically assaulted by a classmate. The incident lasted no more than 10 seconds and where there was no history known to the Defendant of any physical altercations between the plaintiff and infant-tortfeasor. Although the tortfeasor was known to engage in horseplay, his sudden and spontaneous and violent attack of the plaintiff was not foreseeable to District employees.
Defendant moved for summary judgment, arguing that the incident could not have been anticipated—not only because this tortfeasor had never acted in this manner before, but because the incident occurred so suddenly that no additional supervision would have prevented it. The trial court granted the motion and the Third Department affirmed, noting:
Although “[s]chools are under a duty to adequately supervise the students in their charge and ... will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ..., they cannot reasonably be expected to continuously supervise and control all movements and activities of students” and will not be held liable for every act by one student that injures another... Instead, “a school district will only be held liable for injuries intentionally inflicted by another student where it is established that the dangerous conduct ‘could reasonably have been anticipated,’ i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student” …“Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury ‘was a normal or foreseeable consequence of the situation created by the school's negligence’."
|
|
|
|
Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
Courts are back in session with several discovery cases, including sanctions for spoliation of evidence and a CPLR 3124 motion to compel discovery of postaccident repairs. Most readers of this column hopefully know that evidence concerning postaccident repairs may never be admitted as proof of an admission of negligence and is typically inadmissible at trial in New York State civil cases absent certain exceptions. Those exceptions involve issues concerning maintenance or control of the instrumentality that allegedly caused the injuries.
Trial courts generally find that three years is an appropriate time frame concerning the discoverability of past notice evidence; but what about the discoverability of postaccident repairs? Since that information is generally inadmissible, it is similarly not discoverable unless they fall within any of the recognized exceptions to that general rule such as control or evidence of the existence of a defective condition. General credibility impeachment, however, is not an exception. If defendant admits to having control of the premises, evidence of postaccident repairs and/or remedial measures are neither material nor relevant. Conversely, a plaintiff is entitled to discover postaccident repair estimates, even if that evidence is ultimately held inadmissible, since they could reveal who controlled or maintained the area where the accident occurred. It is thus critical to know the issues in your case, including the defenses being asserted, to narrowly tailored your discovery demands to obtain the desired information that will help prove your causes of action or defenses. If you have an interesting story involving the discoverability of postaccident repairs or remedial trials, and how you were successful in preventing your adversary from using same at trial, please reach out.
Until next issue, remember to turn your clocks back and go BILLS!
Marc
10/03/2024 Adams v Legacy Carting Corp.
Appellate Division, First Department
Defendants’ motion to vacate the note of issue properly denied as it was not timely filed, defendants waived any right to take a further deposition and showed no basis for seeking other medical records relating to medical conditions that were not placed in issue by plaintiff.
The trial court denied defendants’ motion to vacate the note of issue and to compel discovery. The First Department unanimously affirmed the trial court’s decision because defendants’ motion was not timely filed within 20 days of service of the note of issue, as required by 22 NYCRR 202.21(e). The Court further held that defendants also waived any right to take a further deposition of plaintiff concerning her lumbar spine surgery by failing to take any steps to reschedule the deposition over the course of three years.
10/03/2024 Duran v East 185th St. Realty Corp.
Appellate Division, First Department
Defendants failed to establish its entitlement to their request for all of plaintiff’s mental health records dating five years back from the date of the slip-and-fall and failed to establish that “the interests of justice significantly outweighed the need for confidentiality” of plaintiff’s mental health, alcohol abuse or substance abuse records.
The trial court denied defendants’ cross-motion for alternative relief seeking an order directing plaintiff to provide all outstanding discovery or be precluded from seeking damages for alleged emotional injury. The First Department unanimously affirmed the trial court’s decision to deny defendant’s non-tailored discovery request for all of plaintiff’s mental health records dating five years before her slip and fall. Plaintiff’s generalized allegations of depression, anxiety, fear, emotional harm, and curtailment of her daily life activities stemming from her incident did not place her entire mental health history at issue. The Court also held that defendant offered no grounds to find that the requested medical records are material and necessary to the claims plaintiff asserts in connection with her incident.
10/03/2024 Lamerique v Columbia Univ.
Appellate Division, First Department
Plaintiff not entitled to discovery of postaccident repairs as she failed to demonstrate that evidence of the postaccident repairs would be admissible or lead to the discovery of admissible evidence.
The trial court denied plaintiff’s motion to strike the answer as a sanction for failing to provide court-ordered discovery or to compel defendants to provide discovery regarding postaccident repairs made to the exterior granite staircase of Dodge Hall at Columbia University, where plaintiff allegedly tripped and fell on a gap in one step.
The First Department unanimously affirmed the trial court’s decision. The Court found that plaintiff failed to demonstrate that evidence of the postaccident repairs would be admissible or lead to discovery of admissible evidence. The Court noted that this is not a case in which postaccident repair records are the only means of proving the defective condition of the accident’s location, because plaintiff will still be able to prove the condition through her own testimony, the testimony of defendant’s project manager, and the photographs taken by the project manager within days before the accident.
Although plaintiff argued on appeal that preaccident and postaccident investigative records, as opposed to postaccident repair records, are discoverable, the Court held that plaintiff did not raise that argument previously and it does not present a pure question of law that is evident from the record. Regardless, there is no indication that any investigation was undertaken in connection with plaintiff’s accident and plaintiff does not articulate any need for documents relating to defendants’ long planned postaccident repair of the entire staircase.
Accordingly, the Court held that under the circumstances of this case, the trial court providently exercised its discretion in denying plaintiff’s CPLR 3126 motion to strike the answer, finding that although defendants’ response to plaintiff’s discovery demands was “slightly belated,” they became current on their disclosure obligations before plaintiff’s motion, and any failures were not sufficiently egregious to warrant the drastic remedy of striking the answer. The Court further held that plaintiff made no showing that defendants’ failure to provide the documents regarding the postaccident surveys, probes, and photographs was willful and contumacious, because she made no showing of entitlement to that discovery.
10/08/2024 Lev v Eataly USA LLC
Appellate Division, First Department
Plaintiff not entitled to sanction of striking defendants’ answer for spoliation of evidence but entitled to sanction of adverse inference on the issue of prior notice of the allegedly slippery hazard.
Plaintiff slipped on a slippery, sticky substance on the floor of defendants’ establishment and was injured. Plaintiffs’ counsel sent defendants a preservation letter seven days after the incident. Defendant responded by producing several minutes of video of the incident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the allegedly hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not able to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the incident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s incident.
The trial court granted plaintiffs’ motion for discovery sanctions pursuant to CPLR 3126 insofar as it struck defendants’ answer for spoliation of evidence. The First Department reversed the trial court’s decision to the extent of substituting as a sanction an adverse inference against Eataly on the issue of prior notice of the alleged slippery hazard. The Court held plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation to warrant an adverse inference sanction.
10/08/2024 Gerasimowicz v Delis
Appellate Division, First Department
The trial court properly exercised its discretion in precluding seven witnesses listed on plaintiff’s witness list from testifying at trial.
The trial court granted defendants’ motion to preclude seven witnesses from testifying at trial. The First Department unanimously affirmed the trial court’s decision. Plaintiff exhibited a lack of diligence and noncompliance with court orders requiring him to respond to discovery demands, including interrogatories asking him to identify witnesses. Further, the Court held that plaintiff did not provide a reasonable explanation for his failure to disclose those witnesses earlier in this 10-year-old litigation.
|
|
|
|
Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
Happy fall! This is one of my favorite times of the year; cooler weather (sweater weather!), changing leaves, and of course football! But there is still so much to look forward to – adorable Halloween costumes (and of course delicious candy) Thanksgiving, Chanukkah, and Christmas. As my next article wont be until after the holidays, I want to wish everyone a happy, healthy and safe holiday season.
10/15/2024 Trifilio v Woodrow Plaza LLC #2
Richmond County, NY
Evidence of general practices is insufficient to establish a prima facie entitlement to summary judgment.
On February 8, 2020, at approximately 10:00 AM, plaintiff, Michelle Trifilio, was involved in a slip and fall in the parking lot at the Woodrow Plaza Shopping Center. She testified that she fell due to ice in the parking lot, that was around her vehicle. Defendant testified that in February, 2020, he inspected the premises every couple of days to check on the conditions. Woodrow Plaza Shopping Center moved for summary judgment
The Court held that defendant’s evidence of general inspection practices is insufficient to demonstrate a particularized or a specific inspection in the area of the plaintiff's fall on the date of the occurrence and is thus insufficient to satisfy the defendant's initial burden on the issue of lack of constructive notice.
Defendant’s motion for summary judgment is therefore denied.
10/02/2024 Wechsler v City of New York, et al
Appellate Division, Second Department
In order to avail itself of the owner-occupied residential purpose exemption under Administrative Code § 7–210, defendant must demonstrate that the residence is a one-, two- or three-family residential property that is (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes.
The Appellate Division upheld the lower Court’s decision denying both plaintiff’s and defendants’, Churbas’, motions for summary judgment.
In April, 2019, plaintiff allegedly tripped and fell on an uneven sidewalk condition abutting a property owned by the defendants in Kings County. Both the plaintiff and defendants moved for summary judgment.
In light of NYC Administrative Code section 7-210, the Appellate Division found that the defendants’ failed to establish that the owner-occupied residential purpose exemption under Administrative Code § 7–210(b) is applicable to them. Likewise, the Appellate Division found that plaintiff’s failed to show that there are no triable issues of fact as to whether the property was an owner-occupied two-family dwelling at the time of the incident and was not used exclusively for residential purposes.
|
|
|
|
|
|
|
|
Hurwitz Fine P.C.
Buffalo
The Liberty Building, 424 Main Street, Suite 1300, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
575 Broad Hollow Rd., Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Albany
518-641-0398
Additional Offices
Albion | Amherst | Connecticut | Niagara Falls | Rochester
Hurwitz Fine P.C. is a corporate and defense litigation law firm providing
legal services throughout the State of New York and Connecticut.
www.hurwitzfine.com
© 2024, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
|
|
|
|
|
|
|
