Premises Pointers - Volume VIII, No. 8

 

Volume VIII, No. 8
January 31, 2025
A Monthly Electronic Newsletter

 

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:

Exciting news to share as we’ve officially opened a brick & mortar Rochester office! We are fortunate to announce our two new attorneys, Elizabeth K. Ognenovski and Bradon S. Carlson. While we have had a Rochester presence for the past five years with NYS Labor Law Attorney Tim Welch, we are excited about our expansion to further serve our clients.  
 

  • Elizabeth K. Ognenovski joins Hurwitz Fine as Litigation Special Counsel. She focuses on retail & hospitality liability, premises liability, construction accidents/New York Labor Law, products liability, and property damage claims. With extensive experience in civil defense litigation, including appellate work, she has successfully represented corporations, small businesses, and individuals in both state and federal courts. Elizabeth is also highly skilled in risk management strategies, accident investigations, and regularly provides in-house legal training to retailers.

 

  • Bradon S. Carlson joins Hurwitz Fine as a Litigation Associate. Bradon focuses on premises liability, retail liability, product liability, automobile liability, and New York State Labor Law. With experience defending complex litigation matters, Bradon has a background in civil defense and is also dedicated to pro bono work, assisting tenants facing eviction and providing legal counsel on various matters.

 
Please let me know if you’d like to connect with Elizabeth or Bradon—I’d be happy to make an introduction!
 
This month, firm member Anastasia McCarthy focuses on recent Executive Orders at the Federal level and several new State laws that Employers should know about. Give that much of the focus at the Federal level has been on DEI/DEIA programs, understandably many people are concerned, and employers have questions, and we are happy to answer them. Please feel free to reach out to Anastasia who can walk you through many of these issues.

 

-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] 

This month we are covering several recent cases—1 case from the Eastern District of New York and several other retail federal court cases from other jurisdictions around the country.

 
1/30/2025            Persaud v. Costco Wholesale Corp.
United States District Court, Eastern District of New York
Defendant’s motion to compel medical records is granted.
 
This case involves a discovery issue. By way of background plaintiff slipped and fell on juice in defendant's store on August 25, 2023, and claims injuries to her lumbar spine, left knee, and left shoulder. However, plaintiff's medical records indicate she received treatment for bilateral myopia and arcuate defects affecting her vision. Hence, defendant sought to compel production of plaintiff's pre- and post-accident eye care records. The court determined that plaintiff put her eye condition at issue by submitting medical records indicating treatment for vision issues and claiming broad damages including loss of enjoyment of life. Further, the court found that eye records are relevant to assessing plaintiff's ability to see the hazard that caused her fall and to evaluating her claimed damages. Finally, relying on the Federal Court discovery standard, the requested records were deemed proportional to the needs of the case given the broad scope of damages claimed. Therefore, the court granted defendant's motion to compel production of plaintiff's pre- and post-accident eye care records.
 
1/29/2025           Saavedra v. Dollar Gen. Corp
United States District Court, Eastern District of Louisiana 
Whether a condition is unreasonably dangerous involves balancing multiple factors, which is typically a task for the jury, according to the court.
 
Plaintiff Kenneth Saavedra tripped and fell over metal shelving in a Dollar General store aisle on August 23, 2023. The shelving was placed at the edge of an aisle by store employees during merchandising. The shelving was approximately 5 feet by 2.5 feet and stacked vertically. Plaintiff claims he could not see the shelving until he turned down the aisle. No warning signs or cones were placed near the shelving. The court reasoned that while large objects in store aisles are typically considered open and obvious, the placement of merchandise may be unreasonably dangerous if located where a shopper might unexpectedly encounter it. The court found that the shelving's placement at the edge of the aisle prevented it from being apparent to everyone who may potentially encounter it, as evidenced by the plaintiff's testimony. The court also noted that determining whether a condition is unreasonably dangerous involves balancing multiple factors, which is typically a task for the jury. Therefore, defendant's Motion for Summary Judgment was denied.
 
1/28/2025            Pacheco v. Home Depot U.S.A., Inc.
United States District Court, Northern District of California
Home Depot’s fraudulent joinder motion was denied and case was remanded back to state court.
 
Plaintiff Pacheco filed a slip-and-fall lawsuit in state court against Home Depot and its employee Souza. Home Depot removed the case to federal court claiming diversity jurisdiction. While Pacheco and Souza are both California citizens, Home Depot argued Souza was fraudulently joined to defeat diversity. The court ruled that Home Depot failed to show by clear and convincing evidence that there is no possibility Souza could be liable under state law and further that plaintiff's motive for joining Souza is irrelevant to the fraudulent joinder analysis. The court further held that given clear precedent rejecting similar arguments, Home Depot lacked an objectively reasonable basis for removal and not only granted plaintiff's motion to remand the case to state court and awarded $4,050 in attorney's fees to the plaintiff.
 

1/24/2025            Tran v. Costco Wholesale Corp.
United States District Court, Southern District of California
Plaintiff’s motion to amend the complaint and add a state defendant which would defeat diversity was granted and the case was remanded.
 
The alleged incident occurred on April 21, 2021 at a Costco store in San Diego. Plaintiff filed a slip-and-fall lawsuit against Costco in state court. Costco removed the case to federal court based on diversity jurisdiction. Plaintiff moved to add Tim Coyle, the Costco Warehouse Manager, as a defendant. 28 U.S.C. § 1447(e) - Joinder of non-diverse defendants after removal is the controlling statute. The court granted the plaintiff's motion to amend the complaint to add Tim Coyle as a defendant. As this destroyed diversity jurisdiction, the court also granted the plaintiff's motion to remand the case to state court. The court analyzed six factors to determine whether to allow joinder:

  • Joinder is needed for just adjudication as the store manager may be personally liable under California law.
  • The statute of limitations would bar a separate action against Mr. Coyle in state court.
  • Plaintiff timely sought to add Mr. Coyle after learning his identity.
  • Plaintiff's motive for joinder is not solely to defeat diversity jurisdiction.
  • The claims against Mr. Coyle appear facially valid.
  • Denying joinder would prejudice the plaintiff by requiring separate lawsuits.

 

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


Dear Readers,

This month’s column focuses on a flurry of changes (and anticipated changes) to state and federal law that employers should be following. If you need assistance navigating these developing situations, please call us.

President Trump Executes Four Executive Orders Anticipated to Drastically Impact Private Sector DEI/DEIA Programs
On his first few days in office, President Trump executed four executive orders intended to halt allegedly unlawful and discriminatory DEI/DEIA programs, policies, mandates, preferences, activities, guidance, regulations, enforcement actions, consent orders and requirements both inside and outside of the federal government. Arguably, the most important Executive Order for private sector employers to understand is the January 20, 2025 Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” although a total of four DEI/DEIA related Executive Orders have been executed to date.
Read More.


Governor Kathy Hochul’s 2026 Budget Introduces Several Employment-Law Changes
New York State Governor Kathy Hochul has introduced her Fiscal Year 2026 Executive Budget, proposing several changes that could impact employers throughout the state. Key proposals include...
Read More.


NY’s Retail Worker Safety Act to take effect in March 2025
In a few short months, New York’s Retail Worker Safety Act will take effect. This law requires retail business owners with at least 10 employees to...
Read More.

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


Hello Subscribers,
 
This month’s edition involves a conditional order of dismissal and the harsh consequences of failing to provide evidence of plaintiff’s purported inability to attend a deposition due to medical issues. Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the trial court. Pursuant to CPLR 3126(3), “[i]f any party … refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed [,] the court may make such orders with regard to the failure or refusal as are just,” including, an order “dismissing the action.” This statute “broadly empowers a trial court to craft a conditional order,” which imposes a sanction “unless within a specified time the resisting party submits to the disclosure.” If a party fails to comply with the order by the specified date, “the conditional order becomes absolute.”
 
To be relieved of the impact of a conditional order under CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense. If you fail to demonstrate a reasonable excuse for failing to comply with a discovery order, then it does not matter if you have a meritorious claim. Please reach out and share your experience with prevailing on enforcing conditional orders of dismissal.   
 
Until next issue, here’s hoping you’re not as predictable as Sean McDermott and you have the ability to switch things up on fly!
 
Marc
 
1/15/2025            Winters v City of New York
Appellate Division, Second Department
Plaintiff’s complaint dismissed because he failed to comply with the terms of the conditional order and could not present a reasonable excuse for his failure to comply with several prior court orders.
 
The record demonstrated that plaintiff failed to appear for a deposition over a span of three years. He was first directed to appear for a deposition at a preliminary conference. He was again directed to appear for a deposition at the next conference by a date certain. Two additional orders directed plaintiff to appear for a deposition on specific dates; but he did not appear. The trial court adjourned defendant’s motion to compel discovery and directed plaintiff to appear for a deposition by a date certain “or [he] may be precluded”; plaintiff again failed to appear. The trial court again adjourned the motion and directed plaintiff to provide admissible evidence of his “confinement,” that is, evidence of his purported inability to attend a deposition due to medical issues, “or this action shall be [d]ismissed.” The trial court thereafter vacated the note of issue and directed dismissal of the complaint because plaintiff had failed to comply with its prior orders.
 
The Second Department affirmed dismissal of the complaint because the record established that plaintiff failed to comply with the terms of the conditional order of dismissal and failed to demonstrate a reasonable excuse for his failure to comply. Since plaintiff failed to demonstrate a reasonable excuse for his failure to comply with the trial court’s prior orders, the Second Department found it unnecessary to determine whether he demonstrated the existence of a potentially meritorious cause of action.

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


Hi Readers,

Happy 2025! Though we may be too far into the year to still be sending “New Year” wishes, I couldn’t let this issue go by without telling you all, and I do hope your year is off to a prosperous start! In the premises liability world, the year is already off to a great start if you are on the defense side! This issue highlights two cases where property owners were able to escape liability for accidents that occurred on their premises in a battle against pure conjecture and speculation. I hope you enjoy.
 
1/28/2025            Maignan v Watsky & Damm, Inc.
Appellate Division, First Department 
A Plaintiff will need more than conjecture to establish that an out-of-possession owner created a dangerous condition such that liability may be imputed to the out-of-possession owner.
 
Plaintiff slipped and fell on ice in the parking lot of a premises that was owned by Watsky & Damm, Inc., also known as Old Albany Post Road, Inc. (Old Albany). Old Albany leased a portion of the premises, including four parking spaces in the parking lot, to Bark, Bathe & Beyond (BBB). The plaintiff’s accident took place in a portion of the parking area that was leased to BBB. During discovery, the testimony of Old Albany’s and BBB’s principals established that both parties understood BBB to have assumed responsibility for clearing the designated parking spaces. In fact, BBB assigned the task of clearing the designation parking spaces to an employee and provided cleaning equipment and supplies.
 
The plaintiff filed a motion for partial summary judgment arguing that Old Albany created the dangerous condition in the parking lot due to its alleged improper construction of the building, which plaintiff argued created water accumulation in the parking. Old Albany filed its own summary judgment arguing that it was an out-of-possession owner with no obligation to clear the subject parking area. The Court denied plaintiff’s motion for partial summary judgment and granted Old Albany’s motion. The plaintiff appealed.
 
On appeal, the First Department found that the lease agreement between Old Albany and BBB, established that Old Albany was an out-of-possession landlord with no obligation to clear snow and ice from the four parking spaces leased to BBB. The First Department, addressing plaintiff’s “improper construction” argument, held that while liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition, the plaintiff in this case failed to present any evidence that any code or regulation was violated by the building’s construction, that any violations were issued based on improper drainage, or that there were any prior accidents or complaints of water or ice accumulation in the parking area. Plaintiff also failed to present any expert opinion to support her arguments. Ultimately, the First Department reasoned that plaintiff’s arguments amounted to pure conjecture and was thus insufficient to preclude summary judgment in favor of Old Albany or to award summary judgment in favor of the plaintiff. The Appellate Division, First Department affirmed the lower court’s ruling unanimously.
 

1/24/2025            Meyer v. New York Lessee LLC and Hilton Management LLC
Supreme Court of New York, New York County
An owner is not required to provide a constant ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during an ongoing storm
 
Plaintiff alleged that he slipped and fell on a wet floor while walking through a revolving door into the lobby of the Hilton New York Midtown Hotel during rainy weather. According to the plaintiff, it had been raining continuously from the time he left his apartment until the time he arrived at the hotel's entrance. He testified that the area between the sidewalk and the entrance was wet and that he did not see any caution signs warning of a wet floor, nor did he see anyone directing him away from the revolving door to the hotel. The plaintiff alleges that there was a mat at the entrance, but the mat was soaked. The plaintiff testified that moisture came up from the mat when he tried to wipe his shoes on it. The plaintiff then entered the compartment for the revolving door where he slipped and fell. The plaintiff filed suit against the building’s owner and property management company.
 
Defendants moved for summary judgment dismissal of the Complaint arguing that they did not have actual or constructive notice of the slippery condition. Plaintiff, in opposition, submitted an expert report, which opined, among other things, that because the volume of foot traffic overwhelmed the mat's ability to absorb rainwater and prevent water from being tracked into the revolving door, defendants should have stationed personnel at the door to monitor the area and to be ready to close the door at any time, and should have had a wet vacuum in use to remove excess water from the mat.
 
As an initial matter, the Court found the plaintiff’s expert’s report, not supported by any published industry or professional standard, to be conclusory and speculative, and thus insufficient to raise a triable issue of fact. The Court then reasoned that an owner is not required to provide a constant ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during an ongoing storm and is only required to take reasonable maintenance measures to address wet conditions such as laying down mats, mopping, and placing caution signs on the floor. The Court ultimately found that the defendants met their burden by establishing that they took such reasonable measures; that a housekeeper had last dry-mopped the floor under the revolving door 30 minutes prior to the accident; and that there were no prior reported incidents or complaints of anyone slipping within the revolving door. The Court granted the defendants’ motion for summary judgment dismissal of the plaintiff’s Complaint.

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


1/29/2025               Brauner v. Locust Val. Cent. Sch. Dist.
Appellate Division, Second Department
The Second Department recently reversed a decision dismissing two causes of action for negligence; and negligent hiring, retention, training, and supervision.
 
As we know, to establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury and that there exists a connection between the defendant’s negligence and the plaintiff’s injuries. Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, actual or constructive notice to the school of prior similar conduct is required. However, the adequacy and proximate causal relation is for the jury to decide.
 
Here, the appellate division found defendants failed to establish, prima facie, that the school district was not negligent with respect to hiring the teacher. Specifically, because defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the school district took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired. 
 
Additionally, defendants failed to establish that the school district lacked constructive notice of the teacher’s abusive propensities and conduct. In particular, defendants failed to eliminate triable issues of fact as to whether the district should have known of the abuse alleged to have occurred with great frequency, between 50 and 100 times over two school years in a classroom and the school parking lot during school hours.
 
The appellate division also found that defendants failed to demonstrate that the school district’s supervision of both the teacher and the plaintiff was not negligent given that, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent, inter alia.
 
Based on these shortcomings, the appellate division deemed the sufficiency of plaintiff’s opposition papers as irrelevant and found the supreme court should have denied defendant’s motion for summary judgment dismissing the second and fourth causes of action.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Marc A. Schulz
[email protected]

Anastasia M. McCarthy
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Jennifer I. Lopez
[email protected]

Hurwitz Fine P.C.
 
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