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Volume VIII, No. 7
December 30, 2024
A Monthly Electronic Newsletter
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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.
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NOTE FROM THE EDITOR:
While the end of 2024 is in full swing, our office has been busy with our annual holiday festivities—including our Adopt-a-Family Drive, holiday cookie exchange and ugly sweater day, and holiday party, bringing together all of our offices for an evening of celebration in Buffalo.
In legal news, New York Governor Kathy Hochul has vetoed the Grieving Families Act for the third time, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality. Attorney Chris Potenza provides an update on the veto in our latest legal alert as well as to local media.
We are also thrilled to welcome three new attorneys to our Long Island and New Jersey offices:
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Joseph P. Mendoza is Special Counsel in our Melville office. Joe focuses on New York State Labor Law, Premises Liability and Automobile Liability. Prior to joining the firm, Joe served as Senior Trial Attorney at the staff counsel offices of several major national and international insurance companies.
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John “Jack” W. Danielsen is an Associate in our Melville office, and focuses on Premises Liability, Motor Vehicle Accidents and General Negligence Actions. Prior to joining Hurwitz Fine, Jack represented hospitals, nursing homes, and healthcare facilities in all stages of litigation involving claims of healthcare negligence and medical malpractice.
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Domenica D. Hart is New Jersey Special Counsel in our Insurance Coverage practice group. She focuses her practice on insurance coverage analysis and litigation of both first-and third-party claims, and brings more than 20 years of insurance law experience.
Welcome, Joe, Jack and Domenica to our Litigation and Insurance Coverage Teams!
Wishing you and your families a Happy New Year!
-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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SPECIAL ALERT: NY Governor Vetoes Grieving Families Act for The Third Time
By: V. Christopher Potenza [email protected]
New York Governor Kathy Hochul, for the third straight year, has vetoed the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.
New York currently provides that a wrongful death lawsuit can only be brought by a child, parent, spouse, or the personal representative for the estate of the decedent. Extended family members, such as siblings or cousins, do not have the right to bring a wrongful death lawsuit in New York unless they also have been named as the guardian or personal representative of the estate.
The damages that can be sought in New York are limited to the economic or pecuniary losses of the survivors resulting from the death, the medical and funeral costs related to the final injury or illness, and the value of parental guidance, nurturing, and care for surviving children. If the decedent sustained conscious pain and suffering prior to passing, an action can be brought to recover those damages as well. However, the current law does not allow recovery for pain and suffering, mental anguish, grief, sympathy, or loss of love or companionship for surviving family members.
A modest revision of the prior vetoed legislation was passed in both houses this year, which:
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Proposed the statute of limitations to be three years from the date of the decedent’s death (current statute of limitations is two years, and prior version proposed expansion to three and a half years);
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More narrowly defined “surviving close family members” who can potentially recover; and
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Reduced the proposed retroactivity to causes of action that accrue on or after January 1, 2021 instead of July 1, 2018.
Under this year’s new proposed legislation, the definition of who may recover damages still included spouses and domestic partners, however the list of distributees was defined, as it is under current law.
Notably, this year’s proposed legislation continued to omit a cap on damages, nor did it carve out an exception for medical malpractice claims. The expansion of damages was the same as passed in the prior legislation, and while the legislature limited retroactivity, it did not eliminate it. As predicted, these modest revisions did not address the Governor’s prior concerns in any meaningful way.
While Governor Hochul called the legislation “well-intentioned,” she states that the bill would lead to higher costs and have a negative impact on the health care system. She indicated a willingness to have further conversations with lawmakers on this type of legislation.
Sponsors of the bill do not seem inclined to seek an override of the Governor’s veto, which requires a two-thirds vote of the Legislature.
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Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected]
For the Federal Court practitioners, we have a couple of interesting cases this month, both demonstrating the importance of following the rules in Federal Court. The Maitland decision, issued by the Second Circuit Court of Appeals, affirmed the grant of summary judgment in part because on appeal, the plaintiff failed to address the reasoning of the District Court’s decision and instead inserted new arguments not made before the lower court. In Fuentes, the plaintiffs’ lawsuit was dismissed for failing to comply with numerous discovery and other orders issued by the Court, which was deemed a failure to prosecute.
12/20/24
Maitland v. Target Corporation
United States Court of Appeals, Second Circuit
The District Court’s decision granting the Defendant’s motion for summary judgment was affirmed on appeal (see below for a summary of that decision).
Erica Maitland, proceeding pro se, appeals from a judgment of the United States District Court for the Eastern District of New York granting summary judgment in favor of Target Corporation in Maitland's negligence action. The District Court's grant of summary judgment was reviewed de novo, construing the evidence in Maitland's favor. Since the plaintiff’s one-page appellate brief did not address the reasoning of the District Court's order dismissing her complaint, instead raising new jurisdictional and constitutional arguments that were not previously raised before the District Court, those arguments were forfeited those arguments and not considered on appeal. Accordingly, the District Court's summary judgment ruling was affirmed.
**CASE APPEALED FROM
9/26/23 Maitland v. Target Corporation
United States District Court, Eastern District of New York
Defendant’s motion for summary judgment was granted based on a lack of evidence proving Target had notice of the alleged dangerous condition and because the doctrine of res ipsa loquitor was found to not apply.
On December 22, 2016, Maitland, who uses a wheelchair, was shopping in the toy department of a Target store in Brooklyn, New York. A metal shelf fell onto Maitland's lap, hitting her leg and causing pain. Maitland did not see the shelf before it fell and could not provide details about its size, shape, or origin. Maitland filed a lawsuit against Target on September 23, 2019, in New York state court. Target removed the case to federal court based on diversity jurisdiction and eventually Target moved for summary judgment. The Court reasoned there was no evidence that Target created the hazardous condition, failed to show that Target had actual notice of any dangerous condition with the shelf and there was insufficient evidence to prove Target had constructive notice of a dangerous condition. The court found the doctrine of res ipsa loquitor inapplicable because plaintiff not prove Target had exclusive control of the shelf, the incident occurred in a public area where customers had access and there was no evidence ruling out other possible causes of the incident.
12/13/24 Fuentes v. CVS Albany, LLC
United States District Court, Eastern District of New York
Action that was removed from state court to federal court was ultimately dismissed due to plaintiffs’ failure to prosecute and comply with court’s orders.
Plaintiffs Maria and Jose Fuentes against CVS for negligence and loss of consortium. Maria Fuentes allegedly suffered injuries when struck by a "Covid Shield" at a CVS pharmacy in Farmingdale, New York, on December 8, 2021. The plaintiffs filed the lawsuit in New York state court on November 28, 2022, claiming the incident was caused by the defendants' negligence. The case was removed to federal court on January 22, 2024, based on diversity jurisdiction. The plaintiffs failed to respond to multiple discovery demands and court orders. The plaintiffs' attorneys withdrew from the case on May 3, 2024. The court issued several orders directing the plaintiffs to inform whether they would proceed pro se or retain new counsel, with warnings that failure to respond could result in dismissal. The plaintiffs did not respond to any of these orders. The court dismissed the case without prejudice for failure to prosecute reasoning that the case had been stalled for nearly nine months resulting in prejudice to the defendants. The court deemed dismissal without prejudice as an appropriate lesser sanction, given the plaintiffs' pro se status.
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Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]
Hello Subscribers,
This month’s edition brings us a case that involves withholding “confidential business” documents and a privilege log. Where a person or entity is required pursuant to a notice, subpoena or order to produce documents and some or all the documents are being withheld by a responding party, then notice must be given by the responding party, pursuant to CPLR 3122(b) to the party seeking the production of the documents that one or more such documents are being withheld. This notice must indicate the legal grounds for withholding each such document (e.g., attorney-client, attorney work product or trial preparation privilege) and must provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.
The burden of establishing any right to protection under an evidentiary privilege is on the party asserting it; the protection claim must be narrowly construed, and its application must be consistent with the purposes underlying immunity. The proponent claiming privilege must establish that the communication was confidential and that the privilege was not waived. The burden cannot be satisfied by counsel’s conclusory assertions of privilege; instead, competent evidence establishing the privilege must be set forth. A party’s response to a discovery demand that the documents requested are either confidential or irrelevant satisfies his or her obligation to set forth the reasons justifying withholding. However, a court is not required to accept a party’s characterization of material as privileged or confidential.
Because determining whether a particular document is protected by a privilege is largely a fact-specific process, most trial courts often require an in-camera review of the contested records. Please reach out if you’ve withheld documents or encountered objections to your privilege assertion and/or privilege log(s) and share your experience.
Until next issue, Merry Christmas, Happy New Year and go BILLS!
Marc
12/24/24 Davis v Conklin
Appellate Division, Second Department
Trial court should have vacated the waiver of plaintiff’s lost earnings claim and permitted plaintiff to reassert his lost earnings claim.
The trial court denied plaintiff’s motion to vacate prior orders of the same court stating that he was not pursuing a claim for lost earnings and that he had waived his claim for lost earnings. The Second Department reversed the trial court’s decision and held that the trial court should have granted plaintiff’s motion. In support of the motion, plaintiff and his former attorney asserted that plaintiff always intended to pursue the lost earnings claim. The Court also found that defendants failed to demonstrate that they would be prejudiced by the reassertion of that claim as defendants’ attorney was made aware of plaintiff’s intention to reassert his lost earnings claim, and the attorney questioned plaintiff at length about his employment history and alleged inability to work.
Plaintiff additionally provided an authorization for his employment records, and discovery the Court noted that discovery remains ongoing. Under the circumstances of this case, the trial court should have vacated the waiver of the lost earnings claim and permitted plaintiff to reassert his lost earnings claim.
12/24/24 Board of Mgrs. of the Philip House Condominium v 141 E. 88th St., LLC
Appellate Division, First Department
Defendants failed to set forth a proper showing that all documents not disclosed were properly withheld as privileged and thus plaintiff was entitled to an in-camera review of those records.
The trial court denied plaintiff’s motion to compel defendants to produce outstanding discovery. The First Department reversed the trial court's decision to the extent of compelling production of documents designated as “business confidential” and remanded the case for an in-camera review to address plaintiff’s challenges to defendants’ remaining privilege assertions.
Defendants did not dispute that the documents designated on their privileges logs as “business confidential” were improperly withheld from production. Accordingly, the Court held that defendants must produce any documents withheld under that designation.
As to the documents withheld because of other privileges, the trial court, considering the sheer breadth of plaintiff’s document requests, properly denied plaintiff’s request for a “wholesale rejection” of defendants’ privilege assertions and an immediate and full production of all the withheld documents. Nevertheless, the Court found that plaintiff’s motion to compel raised valid questions about certain designations on defendants’ privilege logs, which listed more than 19,000 documents over 938 pages on entries, and defendants failed to oppose plaintiff’s motion with additional details sufficient to explain the basis for their privilege assertions. Therefore, the Court held that defendant has not made a proper showing that all the documents were properly withheld as privileged, and plaintiff is entitled to an in-camera review of those documents so that the trial court can address its challenges to the privilege assertions.
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Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
With the New Year approaching, I want to wish everyone a happy and safe New Year's Eve/Day; please be safe and smart on New Year's Eve.
2024 was a whirlwind of emotions for me, including purchasing my first home and getting a new puppy, who is certainly giving me a run for my money. Despite an eventful 2024, I already have a list a mile long of things I want to accomplish in 2025 and cannot wait to start checking them off! What is everyone’s top goal/resolution?
December 4, 2024 Martin v PCVST-DIL LLC
New York County, NY
Gaps in plaintiff’s case is insufficient to succeed on a motion for summary judgment
On December 18, 2014, plaintiff returned home from a holiday party. Plaintiff lived on the second floor, but accidently pressed the third floor button on the elevator. Once he reached the third floor, he proceeded to the stairwell to walk down one flight of stairs. He observed debris in the stairwell, due to construction that was being performed. Plaintiff stepped over the debris but stepped onto “some type of moisture” causing him to fall. The security guard responded to the third-floor after a report of an unconscious male. After inspecting the subject stairwell, the guard noted that there was no debris or moisture on the steps. Defendant moved for summary judgment.
Honorable Justice Goetz of the Supreme Court, County of New York held that although plaintiff’s inability to identify the cause of the fall is fatal to the case, defendant cannot point out gaps in the plaintiff’s case and must submit evidence concerning when the subject are was last cleaned and inspected prior to the accident to establish its burden of entitlement to summary judgment. Defendant failed to produce such evidence; thus, their motion was denied.
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Hurwitz Fine P.C.
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Phone: 716-849-8900, Fax: 716-855-0874
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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.
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