Premises Pointers - Volume VIII, No. 9

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:

For those of you who also subscribe to Coverage Pointers, and received Dan’s most recent issue, you heard about the FDCC meeting that we just returned from in Charleston. It was a fabulous week of education with friends and colleagues from across the country. Our FDCC convention chair Jeff Kelsey and program chair Dan McGrath went above and beyond in every way to organize and execute a phenomenal event in beautiful Charleston. The programming ranged from a panel of Federal Court judges who provided an insider’s view of what they expect from lawyers practicing in their courtrooms to a timely and informative discussion on navigating the current Executive Orders on DEI, a topic that Premises Pointers columnist and Hurwitz Fine attorney Anastasia McCarthy has been following and helping clients understand. We also had some fun (as you saw from our picture at the South Carolina Aquarium shared by Dan) and enjoyed  amazing restaurants and sites. If anyone is interested in joining the organization or getting more information about FDCC, which stands for the Federation of Defense and Corporate Counsel, I would also be happy to chat with you. We have a mix of both defense attorneys and insurance industry professionals which makes for a wonderful exchange of ideas and information on what’s happening in the practice of law. Our next meeting is this summer in Park City, Utah, which is sure to be another great event.
 
Now, onto what’s happening in Premises Pointers and HF firm news.

Last month, we announced our expansion into Rochester, and this month, we are thrilled to have one of our new Rochester attorneys, Elizabeth K. Ognenovski as a Premises Pointers columnist! Be sure to read her column called Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates.

In our Trusts & Estates department, Attorney Melissa A. Pezzino recently discussed the role of Irrevocable Trusts in estate planning, and how they can be used to safeguard your wealth. According to Melissa, this is the #1 question she receives from clients, so she took a deeper dive into the benefits, legal considerations and potential drawbacks in “Are you protecting your wealth from rising nursing home costs?”
 
Lastly, in firm news, I am excited to announce that Andrea Schillaci, Chair of the Business & Commercial Litigation Department, has been elected President of The Harmonie Group, an organization that many of you may have attended events of across the country. Andrea has been an active member of The Harmonie Group for over 20 years. She has served on the board of directors and currently co-chairs the Professional Liability Committee. Congratulations, Andrea, on this terrific accomplishment!
 
With February winding down here in Buffalo, we are anxiously waiting for Spring’s arrival and hope to be turning the corner soon. Hopefully by the time our next issue comes out, we will have seen the last of the snow!

-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 summary judgment decisions—all from the 2^nd Circuit. Of the three retail defendants, two prevailed on summary judgement and one did not.
 

2/20/2025           Gomez v. Target Corporation
United States District Court, Eastern District of New York
Court ruled a period of two minutes and thirty-eight seconds between a spill and a fall is insufficient, as a matter of law, to provide a reasonable opportunity to correct or warn.
 

On January 10, 2021, plaintiff slipped and fell on a broken jar of pickles in a Target store. Surveillance video verified the jar broke at 4:50:19 p.m. and plaintiff fell at 4:52:57 p.m., a span of 2 minutes and 38 seconds. No Target employee was seen on surveillance footage entering or passing by the aisle during this time. Plaintiff claims a Target employee told her after the fall that they were aware of the spill, which the employee denies. The court reasoned that even if the defendant had actual notice of the spill, the 2 minutes and 38 seconds between the spill and the fall was insufficient time, as a matter of law, to provide a reasonable opportunity to correct or warn about the hazard. The defendant's motion for summary judgment was granted, and the case was closed.

2/13/2025         Russo v. Costco Wholesale Corp.
United States District Court, Southern District of New York

Defendant Costco’s motion for summary judgment was denied even though Costco argued plaintiff was unable to identify the cause of her fall.

Plaintiff, Andrea Russo, slipped and fell at a Costco store in Yonkers, New York on January 16, 2022. Russo testified that she saw a round plastic object on the floor after her fall that she believed caused her to slip. Surveillance video shows Russo's shopping cart potentially coming into contact with a cup lid on the floor just before her fall. The parties dispute whether the video shows Russo's cart contacting the lid and whether this caused her fall. The court ultimately denied the motion reasoning that a plaintiff does not need explicit personal knowledge of the cause of her fall to survive summary judgment, but can rely on circumstantial evidence from which negligence and causation may be reasonably inferred. Russo provided testimony about seeing a plastic object and video evidence that could show her cart contacting a lid, which is sufficient for a jury to potentially infer causation. The surveillance video is subject to conflicting interpretations, creating genuine issues of fact that must be resolved by a jury, not the court on summary judgment. Defendant Costco's motion for summary judgment is denied.

 
2/12/2025           Mahoney v. Whole Foods.
United States District Court, Eastern District of New York

The court grants summary judgment to the defendant because defendant did not have actual or constructive notice of the hazardous condition that caused plaintiff's fall even with the presence of a "Caution: Wet Floor" sign approximately 16 feet from where plaintiff fell.

Plaintiff slipped and fell in defendant's Whole Foods store in Albany, NY on July 21, 2019. She did not see any water on the floor before falling but noticed clear water after falling. A "Caution: Wet Floor" sign was present in the seafood department about 16 feet from where plaintiff fell. Defendant's maintenance records show the area was inspected and found clear of hazards about 10-11 minutes before plaintiff's fall. In deciding to grant the motion, the court ruled plaintiff failed to provide evidence that defendant had actual notice of water on the floor where she fell. The "Caution: Wet Floor" sign 16 feet away was insufficient to establish notice of the specific hazardous condition. Plaintiff failed to show constructive notice because she provided no evidence that the water was visible and apparent or present for a sufficient length of time prior to her fall. Defendant's general awareness that the floor near seafood displays could get wet is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall. The court granted defendant's motion for summary judgment on plaintiff's negligence claim.

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

Dear Readers,

We continue to monitor the NY state budget process as well as federal litigation and agency guidance impacting employers. If you need assistance or guidance navigating the rapidly changing employment space, please feel free to give me a call.

THE EEOC VOWS TO INVESTIGATE AND LITIGATE EMPLOYMENT PRACTICES EVINCING AN ANTI-AMERICAN BIAS

On February 19^th, the EEOC’s new Acting Chair, Andrew Lucas issued a Press Release “vow[ing] to protect American workers from anti-American bias.” Specifically, the EEOC announced: “The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”

The press release went on to explain that the EEOC will assist the federal government’s efforts to “deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.” As noted in the EEOC’s press release, national original nondiscrimination of any kind (including practices evincing employment preferences for or against American workers) is illegal under Title VII. Acting Chair Lucas and the EEOC are now stating their commitment “to ensuring employers and workers better understand the even-handed protections provided to all workers by Title VII’s prohibition against national origin discrimination.”

The press release then explicitly addresses common justifications for preferring non-American workers—explaining that these are NOT legally permissible exceptions to Title VII:

• lower cost labor (whether due to payment under the table to illegal aliens, or exploiting rules around certain visa-holder wage requirements, etc.);
• a workforce that is perceived as more easily exploited, in terms of the group’s lack of knowledge, access, or use of wage and hour protections, antidiscrimination protections, and other legal protections;
• customer or client preference;
• biased perceptions that foreign workers are more productive or have a better work ethic than American workers.

Rooting out anti-American bias is but one of Lucas’s priorities for her tenure. Other priorities include:

“[r]estoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”

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

Hello Subscribers,
 
This month’s edition continues with another conditional order of dismissal that was unopposed by plaintiff, under CPLR 3126, to strike the complaint unless plaintiff provided certain discovery responses and authorizations. Recall that 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.”
 
A party seeking to vacate an order entered on his or her default in opposing a motion must demonstrate a reasonable excuse for the default a potentially meritorious opposition to the motion. Although a court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), law office failure does not constitute a justifiable excuse where there is a pattern of willful default and neglect, or where allegations of law office failure are conclusory, undetailed, and unsubstantiated.
 
Until next issue, here’s hoping the temperature continues hovering above 40°
 
Marc
 
2/13/2025            Adams v 161 Ct. St., LLC
Appellate Division, Second Department 
Plaintiff failed to demonstrate a reasonable excuse for his default, and his vague and unsubstantiated proffered excuse of law office failure was not supported by a detailed and credible explanation of the default.
 
The trial court denied plaintiff’s motion to vacate an order conditionally granting defendant’s unopposed motion to strike the complaint unless plaintiff provided outstanding discovery. In support of plaintiff’s motion, he submitted, among other things, an affirmation from his counsel, who stated that plaintiff defaulted in opposing defendants’ motions due to calendaring errors.
 
The Second Department affirmed the trial court’s decision. Plaintiff failed to demonstrate a reasonable excuse for his default, and his vague and unsubstantiated proffered excuse of law office failure was not supported by a detailed and credible explanation of the default. Since plaintiff failed to proffer a reasonable excuse for his default, the Court declined to consider whether he demonstrated a potentially meritorious opposition to defendants’ motions. Accordingly, the trial court properly denied plaintiff’s second motion, pursuant to CPLR 5015(a) as procedurally improper, and plaintiff was precluded from making a second motion to vacate the conditional order on the same grounds raised in the prior motion.

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

Hi Readers,

Hope everyone has had a great start to the New Year and are sticking with those resolutions. I love nothing more than checking things off on a list, gives me the motivation to work on that next task. 

This has been quite an interesting winter with temperatures ranging from the teens to the 50’s. I certainly am looking forward to those beautiful spring, warm days – playing outside with my puppy and taking long walks without my nose freezing off.
 
2/7/2025         Otero v Rochester Broadway Theatre League, Inc.    
Appellate Division, Fourth Department 
Duty of an easement holder is the same as that owed by a landowner.
 

The Appellate Division, Fourth Department reversed the Trial Court’s decision granting defendant/easement holder summary judgment.

Plaintiff filed suit after slipping and falling on snow and ice in the parking lot at 875 East Main St., City of Rochester, NY. Defendant filed summary judgment arguing that it “had absolutely no involvement with” the parking lot where plaintiff fell. The theatre submitted: (1) an affidavit from its COO stating that it did not own, use, occupy, control or maintain the parking lot; and, (2) evidence that the parking lot is owned by a nonparty. In reply to plaintiff’s opposition, defendant submitted, for the first time, a “Parking Agreement” with the nonparty owner that says the nonparty owner agreed to keep the parking lot "reasonably clear of ice and snow."

In addition to finding that defendant introduced a new argument, upon which the Trial Court relied on to grant defendant’s motion, the Appellate Division held that an easement is more than a personal privilege to use another’s land, it is an actual interest in the land, and the easement holder has the same duty as that of the landowner.

Thus, the owner of the easement (the theatre) had a duty to clear the snow and ice from the subject parking lot where plaintiff fell. 

Slips, Trips, and Legal Shifts: The Latest Retail Slip and Fall New York State Case Updates

By: Elizabeth K. Ognenovski [email protected]

Hello Readers! 

I recently joined Hurwitz Fine as part of their expansion into Rochester. This is an exciting chapter in my career, and I am honored to be working with such an incredible and respected team. A little bit about myself - I am from Rochester, New York (Pittsford). I attended undergrad at the University at Buffalo and graduated from Albany Law School.

Prior to joining Hurwitz Fine, I was an avid reader of Premises Pointers and frequently applied the information and cases presented to my practice. I am thrilled to be contributing a column and look forward to sharing my insights on recent retail slip and fall cases around the State of New York.

2/05/2025            Hernandez v. Malchus B’Chesed, LLC
Appellate Division, Second Department
An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct.

The plaintiff commenced a personal injury action after he tripped over broken and mis-leveled concrete on a loading dock of the supermarket at which he worked. The third-party defendant supermarket Hatzlacha Supermarket, Inc. leased the premises from the defendant landlord Malchus B’Chesed, LLC pursuant to a lease agreement. The defendant landlord moved for summary judgment to dismiss the complaint and argued in part that it was an out-of-possession landlord. The Kings County Supreme Court held there were issues of fact as to: (1) what caused the plaintiff’s incident; (2) whether the supermarket or the defendant landlord had notice of the alleged defect; (3) whether the defendant landlord had a duty to repair the alleged defect as an out-of-possession landlord; and (4) whether the alleged defect constituted a significant structural issue.
 
On appeal, the Second Department explained that since the complaint “sounds in common-law negligence and the pleadings do not allege a violation of a statute, the defendant landlord could not be held liable unless it owed a duty assumed by contract or a course of conduct.” The Court held the defendant landlord failed to demonstrate that it did not have an obligation by contract or a course of conduct to maintain the loading dock. The language of the lease was ambiguous and the deposition testimony of the supermarket’s general manager contradicted the deposition testimony of the landlord regarding who was responsible for repairing the concrete surface of the loading dock. The Second Department further determined that the landlord failed to establish that it relinquished control over the premises to such a degree as to extinguish any duty it owed to maintain the premises.

2/13/2025           Rubin v. Sivan Merrick, LLC
Appellate Division, Second Department
A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is: (1) under the circumstances, physically insignificant; and (2) that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.
 
The plaintiff allegedly sustained injuries when he tripped and fell in a hole in a parking lot owned by the defendant Sivan Merrick, LLC and leased by the defendant Metro Franchising Commissary, LLC, d/b/a Dunkin. The defendants asserted contribution and indemnification cross-claims against each other. Both defendants moved for summary judgment to dismiss the complaint and the cross-claims. The defendants argued in part that the alleged defect was trivial. The Nassau County Supreme Court denied both motions.
 
On appeal, the Second Department affirmed the lower court’s holding. The Court explained that there is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. “In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury.” Photographs may be used to demonstrate that a defect is trivial if they are acknowledged to fairly and accurately represent the accident site.
 
The Second Department held that the defendants failed to establish that the alleged defect was trivial and not actionable as a matter of law. The Court explained that the plaintiff testified that the hole was approximately 5 inches deep and 18 inches wide and the defendants failed to submit any measurements of the dimensions of the hole. In addition, it was not possible to determine from the photographs submitted as to whether the alleged defect was trivial. With regard to constructive notice, the defendants failed to produce evidence as to when the parking lot was last inspected prior to the plaintiff’s incident.
 
With regard to the cross-claims, the defendant landlord failed to demonstrate that it was an out-of-possession landlord that did not have a contractual duty under the lease to maintain the parking lot. Thus, the defendant landlord’s motion with regard to dismissing the cross-claims asserted against it was denied.

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]

Elizabeth K. Ognenovski
eko@hurwitzfine.com