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NOTE FROM THE EDITOR:
Greetings on this Thanksgiving Eve! Hard to believe the holiday season is officially upon us but here we are. Last week we celebrated Thanksgiving at our office with Hurwitz Fine’s First Annual Thanksgiving lunch. Firm members David Adams and Steven Peiper had a “turkey cook off” with each bringing two turkeys to the office requiring them to get up at an ungodly hour. The entire meal was home cooked. It was a wonderful day but admittedly hard to go back to work in the afternoon.
Exciting news from our Albany office! We’re thrilled to welcome attorney Michelle Kulak to our Litigation Team in the Capital Region. Michelle brings over a decade of experience to Hurwitz Fine, with a focus in defending clients in general liability cases, including premises and automobile liability, school district and municipal matters, Child Victims Act claims, and labor and employment issues. An active leader in the legal community, Michelle serves on the Board of Directors of the Saratoga County Bar Association as a State Bar Delegate and is a past president of the Federation of Bar Associations for the Fourth Judicial Department.
We’re fortunate to have Michelle on board and look forward to her contributions to our team! Please feel free to drop Michelle a note if you have any need for assistance in the Capital Region.
This month, our firm was recognized as a Tier One Law Firm in 10 Practice Areas by Best Lawyers, including the areas of:
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Commercial Litigation
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Corporate Law
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Elder Law
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Insurance Law
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Litigation – Insurance
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Litigation - Municipal
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Personal Injury Litigation – Defendants
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Real Estate Law
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Tax Law
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Trusts and Estates
In addition, we are honored to be ranked in the second annual Chambers 2025 New York Regional Spotlight Guide for General Commercial Litigation, as one of only eight Buffalo law firms recognized, and one of only three featured for litigation and insurance. Both of these rankings are based largely on peer and client feedback and research, so thank you for trusting us as your legal partners!
Wishing you and your family a Happy Thanksgiving!
-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.
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Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected]
The past month was a short month that did not yield many retail decisions in New York State so we are covering a few federal court cases of interest. Starting with New York, Best Buy was initially awarded summary judgment, but the decision was reversed primarily on procedural grounds based on the insufficiency of the papers submitted in support of the summary judgment motion. The next four cases all deal with removal and some of the pitfalls resulting in removal resulting in remand motions.
11/26/24 Wee v. Best Buy Co, Inc.
Appellate Division, First Department
Best Buy’s motion for summary judgment was granted by the trial court but reversed by the Appellate Division. The trial court improperly based its dismissal on documentary evidence submitted for the first time on reply.
Plaintiff alleges that two delivery men wearing Best Buy shirts delivered and installed a television from one of defendant’s stores. Plaintiff claims that one of the delivery men grabbed her, kissed her and exposed himself to her during the delivery. Plaintiff asserted claims of negligent hiring, supervision and retention. Best Buy filed a motion for summary judgment and argued through the affidavit of defendant’s senior manager that defendant's employees were not involved in the alleged delivery. Best Buy argued that the individuals were an agent or employee of an independent contractor, and not Best Buy. However, the contract relied on to support this argument was not submitted with defendant’s moving papers.
11/25/24 McLain v. Walmart, Inc.
United States District Court, M.D. Alabama, Norther Division
After properly removing the case, plaintiff sought to add an Alabama State Defendant that would defeat diversity and require the case to be remanded to state court –fraudulent joinder was not raised by the defendant to try and keep the case in federal court.
This case involves a lawsuit filed by Leah Y. McLain against Walmart, Inc. for negligence and wantonness. McLain was struck by boxes that fell from a Walmart employee's moving cart while shopping, aggravating her pre-existing back injuries. McLain initially filed the complaint in Alabama state court. Walmart removed the case to federal court based on diversity jurisdiction. McLain sought to amend her complaint to join Walmart employee Danny Johnson as a defendant.
She also filed a motion to remand the case back to state court. The court granted McLain's motion to amend the complaint to join Johnson. The court also granted the motion to remand the case to state court, Joining Johnson, an Alabama citizen, destroyed complete diversity and deprived the federal court of jurisdiction.
11/20/24 Kelley v. Target Corporation
United States District Court, C.D. California
Plaintiff’s motion to add the store manager to the lawsuit was granted and diversity was destroyed requiring the case the be remanded.
Plaintiff Donna Kelley sued Target in state court brings this action against for an injury she sustained in March 2024 when she tripped over a parking block in the parking lot of the store in Pasadena, California. After the case was removed to Federal Court, plaintiff sought to add the store manager as a defendant, and to remand the action to state court for the lack of diversity that would necessarily result from the amendment. When deciding whether to permit joinder, a court should consider the following factors: “(1) whether the party sought to be joined is needed for just adjudication and would be joined under Federal Rule of Civil Procedure 19(a); (2) whether the statute of limitations would prevent the filing of a new action against the new defendant in state court; (3) whether there has been an unexplained delay in seeking to join the new defendant; (4) whether the plaintiff seeks to join the new party solely to defeat federal jurisdiction; (5) whether denial of the joinder would prejudice the plaintiff; and (6) the strength of the claims against the new defendant. Plaintiff alleged that the manager was responsible for managing and maintaining the premises, knew or should have known of the condition of the parking lot, but failed to correct (or warn of) these conditions. This was deemed sufficient and considered a valid cause of action. With all factors being satisfied according to the court, the remand motion was granted.
11/20/24 Warner v. Whole Foods Market Group, Inc.
United States District Court, W.D. Pennsylvania, Pittsburgh.
After several rounds of removal and remand volleyball based on several theories, the case was remanded back to state court.
Plaintiff sued Whole Foods for negligence in state court. Whole Foods removed the action based on diversity to federal court. A remand motion followed on the basis that the original removal was untimely. When Whole Foods argued it was timely citing to the timeline, plaintiff responded by stipulating that his damages do not exceed the diversity jurisdictional threshold of $75,000. Plaintiff’s complaint, as originally filed in the Allegheny County Court of Common Pleas, provided for damages in excess of $50,000. Because the damages claim did not provide for any upper limit, the complaint was deemed ambiguous as to whether plaintiff was seeking in excess of $75,000, the jurisdictional limit for diversity jurisdiction. Since plaintiff stipulated to an amount in controversy that his damages do not exceed $74,999.99, this Court determined, with “a legal certainty,” that the amount in controversy component for diversity jurisdiction is not met. Therefore, the case was demanded.
11/19/24 Kenneth Hansen v. Home Depot U.S.A., Inc.
United States District Court, N.D. Texas, Dallas Division.
Plaintiff, an employee of Home Depot, sued his employer and the assistant store manager remand motion was granted (employees can sue their employers for negligence in Texas under certain circumstances).
Hansen, an employee at a Home Depot in Corsicana, Texas, was injured while placing vacuums on a high shelf using a step ladder. Sayles, the assistant store manager, instructed Hansen to perform this task, knowing he wasn't certified to use powered equipment. Hansen sued Home Depot and Sayles for negligence in state court. Home Depot removed the case to federal court, claiming Sayles was improperly joined to defeat diversity jurisdiction. The court focused on whether Sayles was properly joined as a non-diverse defendant. Under Texas law, employers generally have the duty to provide a safe workplace, not individual employees. However, employees can be personally liable for tortious acts they direct or participate in during employment. The court found that Hansen adequately stated a claim against Sayles independent of Home Depot's duty, based on Sayles' direct involvement in the incident. The court granted Hansen's Motion to Remand, finding that Sayles was properly joined. The case was remanded to state court. This ruling emphasizes that employees can potentially be held individually liable for negligence when they are directly involved in creating dangerous situations, even when acting within their employment duties.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
We have two discovery cases for you this month, including a motion to quash a subpoena for the testimony of a treating physician. CPLR 3101(a)(4) is one mechanism by which a party may obtain discovery from a nonparty. That section states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: … (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” The words “material and necessary” must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.
An application to quash a subpoena should be granted only where futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances. Although the nonparty bears the initial burden of proof on a motion to quash, CPLR 3101(a)(4)’s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, “the circumstances of reasons such disclosure is sought or required.” The subpoenaing party must include that information in the notice in the first instance, lest it be subject to a challenge for facial insufficiency.
If you have an interesting story involving a motion to quash or testimony concerning a treating physician, please reach out and share your experience.
Until next issue, Happy Thanksgiving and go BILLS!
Marc
10/30/24 Modica v Cohen
Appellate Division, Second Department
Trial court properly denied defendants’ motion to strike the allegations in the bill of particulars as not related because there was no basis for the court to grant the relief requested.
Plaintiff’s bill of particulars alleged injuries to the lumbar region of his spine and related surgeries. Recall that a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial. Defendants moved to enforce a conditional preclusion order for failure to provide certain discovery, or, alternatively, to strike the allegations asserted in the bill of particulars pertaining to plaintiff’s alleged injuries to the lumbar region of his spine and related surgeries on the ground that those injuries and surgeries were not caused by the subject incident. The trial court denied defendants’ motion to strike certain allegations asserted in plaintiff’s bill of particulars.
The Second Department affirmed the trial court’s decision as there was no basis for the court to grant the relief requested. To the extent that defendants sought a finding that plaintiff’s alleged injuries were not attributable to the subject incident, they should have moved for summary judgment or for other relief with respect to the complaint.
11/07/24 Ogando v 40 X Owner LLC
Appellate Division, First Department
Plaintiff not entitled to quash a subpoena for the testimony of a nonparty witness, her treating physician, who possessed information “material and necessary” to defendants’ defenses.
Plaintiff testified that the cause of her fall and resulting injuries was the “broken” and “unlevel” sidewalk in front of defendant’s building. During discovery, defendants received medical records from one of plaintiff’s medical providers, which reflected that, days after the incident, plaintiff had reported to the doctor regarding the “history of present illness,” that “while trying to break up a fight in a subway station, she tripped and fell injuring herself.” The trial court granted plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician.
The First Department unanimously reversed the trial court’s decision and denied the motion. Plaintiff failed to establish that the potential testimony of the doctor was “utterly irrelevant” to the action. Additionally, the Court held that defendants showed they sought “material and necessary” information because plaintiff’s account of her incident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendant's potential liability, as well as plaintiff’s credibility.
The deposition was also necessary because plaintiff’s statement in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her. Defendants were not required to demonstrate “special circumstances” warranting the doctor’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment.”
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Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Practice C. S. Melville pcsm@hurwitzfine.com
Hi Readers,
I don’t know about you, but this impending Holiday season puts me in a very thankful mood. Tis’ is not the season for holding grudges or keeping records of wrongs. Unless, of course, you own and/or manage property in New York. In that case, keeping records just might give you a reason to be grateful. The two cases below show the difference that record-keeping makes when defending a lawsuit stemming from a trip/slip and fall accident.
11/08/24 Folkes v. Randazzo
Supreme Court, Richmond County
Regular inspections and keeping records of said inspections are crucial to succeeding on a motion for summary judgment in a trip/slip and fall case.
Plaintiff, Timothy Folkes, who was a tenant of the defendants, was involved in a slip and fall while descending the steps at the residence owned by the defendants located at 79 Weiner Street, Staten Island, New York. Plaintiff testified that it was not raining on the day before the accident, and that it had snowed probably five days before. Plaintiff testified that he arrived home on the day before the alleged accident at approximately 4:30 p.m. and remained home until he left the next day. He did not observe any ice on the steps at that time. After falling while he was descending the steps the next day at 4:30 a.m., he noticed a patch of ice, that he assumed formed overnight.
The defendants moved for summary judgment arguing that at no time on or prior to the date of accident were they aware of any ice conditions on the stairs; they never observed ice on the stairs; the stairs are pitched, so water runs off them to prevent ice from forming; there was never a recurring condition of ice on the steps prior to the date of accident; and, to their knowledge, no ice was present on the day of the accident or the day prior. Defendants did not, however, provide any indication of the frequency of any inspections of the property or if they ever inspect the property; or any testimony of how snow or ice is removed, the frequency of such removal, or how the need for such services are reported to them.
The Court, denying the defendants motion, found that the defendants failed to meet their prima facie burden of establishing lack of notice. The Court noted that the only inspection of the subject steps was one made by the plaintiff twelve full hours prior to his fall. The defendants provided no testimony regarding any inspection process, and failed to proffer any evidence as to when the subject area was last cleaned or inspected before the Plaintiff's fall, or that the condition existed for an insufficient length of time for them to discover and remedy it.
11/06/24 Daniel v. York Terrace, Inc.
Appellate Division, Second Department
To provide constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it.
The plaintiff was allegedly injured when she slipped and fell on water in the laundry room of a residential building owned and managed by the defendants. The plaintiff alleged that water was leaking from a washing machine that she was using.
The defendants moved for summary judgment dismissing the complaint, contending that they did not create the alleged hazardous condition or have actual or constructive notice of its existence. In support of their motion, the defendants relied on the plaintiff’s testimony that she did not see any water when she was last in the laundry room approximately 40 minutes prior to the accident. The defendants also submitted evidence that the machine was serviced by a vendor three days prior to the incident and that when the vendor left the premises, the machine was in working condition. When the vendor inspected the machine again on the day of the accident, the vendor determined that the machine was in working condition and that any leak was caused by the use of too much soap.
Plaintiff, in opposition, submitted an affidavit of the plaintiff’s daughter, which stated that she had seen water leaking from the machine at issue at least two to three times prior to the accident and as recent as one week prior to her mother’s accident. The Appellate Division, Second Department reasoned, however, that the plaintiff’s daughter’s affidavit failed to create a triable issue of fact as to whether the defendants had actual notice of a recurring hazardous condition such that they could be charged with constructive notice of the subject condition as it merely showed a general awareness that, at times, water leaked from the machine at issue—not constructive notice of a recurring condition. The decision of the Supreme Court was reversed.
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School District & Municipal Liability
By: Jennifer I. Lopez [email protected]
Dear Readers:
Wishing you a Happy Thanksgiving! Stay well.
11/06/24 Sandra Adams v. Suffolk County et al.
Appellate Division, Second Department
Second Department deviates from First and Fourth Departments in ruling that County Department of Social Services owed a special duty to plaintiff who was sexually abused while in foster care.
Plaintiff brought an action pursuant to the Child Victims Act (CPLR 214-g) against defendant Suffolk County for damages related to alleged sexual abuse she suffered as a child while in foster care under the custody of the County’s Department of Social Services (DSS). Plaintiff alleged abuse perpetrated by one of her foster fathers when she was between the ages of 10 and 11; and by an adult neighbor of a different foster home, when she was 11 or 12 years old. She was impregnated by the neighbor and gave birth to the child. The Supreme Court denied the branch of defendant county’s motion for summary judgment seeking dismissal of the first cause of action for negligence on the grounds that plaintiff failed to show DSS owed her a special duty; and defendant county appealed. The Appellate Division, Second Department affirmed the decision.
The issue before the Second Department was whether a municipal agency could be held liable for the negligent placement and supervision of children in foster care. When considering whether a municipality can be held liable in tort for allegedly breaching a duty, the question becomes whether the municipality entity at the time the claim arose: (1) was engaged in a proprietary function; or (2) acted in a governmental capacity. When the claim is related to the latter, as it was here, the Court of Appeals has repeatedly ruled that a government agency cannot be liable for the negligent performance of a governmental function unless there is a special duty specific to the injured person (invoking a duty to use due care for the benefit of the particular persons or classes of persons, rationally limited to the class of citizens to whom the municipality owes protection), rather than a generalized duty to the public at large.
To establish the existence of a special relationship, a plaintiff typically must satisfy all four elements of the Cuffy test: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking. However, where a foster care relationship exists, the Second Department deemed the Cuffy test satisfied by virtue of the relationship between a municipal foster care agency and the foster child. The Court highlighted that when a government entity voluntarily assumes a duty to the plaintiff beyond what was owed to the public generally, as in a foster care relationship, a municipality may be held liable for damages flowing from any breach of that duty because, in part, the entity has established through its conduct how its resources are to be allocated with respect to that circumstance.
Here, the Second Department deviated from the First and Fourth Departments when it ruled that DSS, as a municipal agency, does owe a special duty to a foster child upon assuming legal custody of that child because in performing that function, the agency selects and supervises the child’s foster parents – showing that the analysis focuses on who benefits from the agency’s allocation of resources toward satisfying said function – and thereby owes a duty to the child more specifically as opposed to the public generally. Note, there is no material distinction between legal custody (e.g., foster care) and physical custody (e.g., school districts or correctional agencies) when considering whether a municipality owes a foster child a special duty. Based on the foregoing, since the plaintiff showed that DSS had custody of her as a child, she did not need to show additional facts to satisfy the special duty rule, i.e., she did not need to satisfy the Cuffy test.
On summary judgment, defendant county failed to show, amongst other things, that the decisions of its DSS employees were discretionary rather than ministerial (actions pertaining to a governing agency rule), and thus could not avail itself of the governmental function immunity defense. Moreover, DSS failed to show it lacked constructive notice of the alleged conduct that resulted in plaintiff’s injuries or that it otherwise adequately selected /supervised the plaintiff’s foster care placements because DSS did not show, e.g., any evidence of the process it engaged in when selecting the foster parents, nor that it engaged in reasonable efforts to determine whether the foster parents it selected were likely to provide appropriate care. The county also did not demonstrate that DSS’ case workers conducted regular visits to the homes to interview the plaintiff and the foster parents; and did not show it responded appropriately as events unfolded.
Until next time...
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Hurwitz Fine P.C.
Buffalo
The Liberty Building, 424 Main Street, Suite 1300, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
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© 2024, Hurwitz Fine P.C. All Rights Reserved
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