|
NOTE FROM THE EDITOR:
Before we get started in this edition of Premises Pointers, a quick note and an apology. If you registered for our “Too Slippery to Believe: Defending Fraudulent Slip/Trip and Fall Claims in New York” webinar last week, you may have experienced an unexpected Zoom technical issue that prevented some attendees from joining the session. We're very sorry for the inconvenience and frustration this caused. We are presenting the webinar again next week, Thursday, July 9th at 1pm. We look forward to having you join us then. To register, please click here.
This month, we recently welcomed two new attorneys to Hurwitz Fine in our Buffalo and Long Island offices:
-
Rob Flynn joins us as Special Counsel in our Buffalo office with extensive experience defending clients in construction accidents, New York Labor Law claims, product liability, premises liability, municipal liability, and catastrophic injury litigation. He has handled matters at the federal, state, and appellate levels, successfully trying cases to verdict and resolving numerous disputes through mediation and arbitration. Prior to joining Hurwitz Fine, Rob spent 20 years as a Senior Trial Attorney for a major commercial insurance carrier defending policyholders in high-exposure litigation.
-
Michael Castronovo joins us as Special Counsel in our Long Island office and focuses his practice on defending high-exposure civil matters, including premises liability, trucking and transportation claims, construction accidents, and automobile liability litigation. He has extensive experience handling bodily injury claims throughout New York City and Long Island, as well as New York Labor Law §§ 240 and 241 matters. Michael has successfully represented clients through motion practice, arbitration, and trial.
Welcome, all!
In August, our Litigation Webinar Series continues on Tuesday, August 11th at 1pm with “Traumatic Brain Injury Litigation in New York: A Defense Perspective.”
Join Hurwitz Fine’s Retail & Hospitality Liability Team—Jody Briandi, Anastasia McCarthy, and Elizabeth Ognenovski—for a timely webinar examining one of the most challenging and high-exposure areas of litigation: traumatic brain injury (TBI) claims.
This program will explore the intersection of medicine and law in TBI cases, including common allegations, diagnostic and causation challenges, emerging medical issues, and the critical role of expert testimony. The presenters will discuss practical considerations for evaluating these claims, assessing damages exposure, and identifying effective defense strategies. Attendees will gain actionable insights for investigating, managing, and defending traumatic brain injury claims from initial claim evaluation through trial.
For more information and to register, click here.
We also wanted to share two recent publications by Hurwitz Fine attorneys addressing timely issues impacting the legal profession and the insurance industry.
-
In the June edition of ACCC Quarterly, Mike Williams and Dan Kohane examine the growing number of attorney sanctions arising from AI-generated legal research and drafting errors, highlighting the continued importance of attorney oversight and verification. Read the article on p. 31 here.
As always, thank you for reading, and we hope you will join us in July for “Too Slippery to Believe: Defending Fraudulent Slip/Trip and Fall Claims in New York” and in August for “Traumatic Brain Injury Litigation in New York: A Defense Perspective.”
-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 in the 2nd Circuit and Beyond
By: Jody E. Briandi [email protected]
For those who attended our webinar on removal recently, below is another case that illustrates how courts interpret the removal statute. This case touches upon fraudulent joinder and timing of removal.
6/12/2026 Dybdahl v. JetBlue Airways Corp.
United States District Court, Eastern District of New York
Remand motion denied based on fraudulent joinder and because the amount in controversy was not established until receipt of the response to the demand for supplemental relief.
Plaintiffs, including several JetBlue flight attendants and their spouses, filed suit in New York state court against JetBlue Airways, various Airbus entities, Honeywell entities, and John Does, alleging injuries from "fume events" on JetBlue-operated aircraft. The claims included negligence, negligent misrepresentation, fraud, negligent infliction of emotional distress, breach of warranty, strict liability, and loss of consortium.
The Airbus Defendants removed the case to federal court, asserting diversity jurisdiction. Plaintiffs moved to remand, arguing that removal was untimely. Removal must generally occur within 30 days of service of the initial pleading. Further, that diversity jurisdiction was lacking because JetBlue (a New York citizen) and Airbus Americas (a Virginia citizen) destroyed complete diversity and invoked the forum defendant rule.
Here, the court found that the 30-day clock did not begin until Plaintiffs served a supplemental demand for relief specifying $30 million in damages, as the original pleadings did not state a specific amount. The notice of removal was filed 14 days after this demand, making removal timely under 28 USCS § 1446 and Second Circuit precedent.
Admittedly, complete diversity is required for federal jurisdiction; removal is barred if any properly joined and served defendant is a citizen of the forum state (the "forum defendant rule"). Here, Defendants argued that JetBlue and Airbus Americas were fraudulently joined and their citizenships should be disregarded. The court applied the fraudulent joinder doctrine, which allows disregard of a defendant's citizenship if there is no possibility that a claim could be stated against them in state court.
As to JetBlue, the claims were found to be barred by New York's Workers' Compensation Law, as they were based on work-related injuries and did not allege intentional torts. The fraud claim also failed for lack of particularity and because no duty to disclose was established. Thus, no viable claim could be stated against JetBlue.
As to Airbus Americas: The court found, based on uncontested declarations, that Airbus Americas was not in the manufacturing, selling, or distribution chain for the aircraft at issue. Plaintiffs' claims against Airbus Americas were based on generalized group allegations and lacked specific factual support. No viable claim could be stated against Airbus Americas.
Because both JetBlue and Airbus Americas were found to be fraudulently joined, their citizenships were disregarded for purposes of diversity jurisdiction. The amount in controversy was not disputed, as Plaintiffs demanded $30 million. The citizenship of John Doe defendants was disregarded under 28 USCS § 1441(b)(1).
In conclusion, the court recommended denial of Plaintiffs' motion to remand, finding that removal was timely and that diversity jurisdiction existed because JetBlue and Airbus Americas were fraudulently joined and thus disregarded for jurisdictional purposes.
|
|
Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
Another month with cases we don’t typically review for this column but were too good to pass up!
The first is out of the Second Department dealing with a landowner’s liability related to a sealant that made a walkway excessively slippery when wet. The second deals with Plaintiff’s request to set aside a jury verdict as contrary to the weight of the evidence.
Hope everyone stays cool through this heat wave we are about to enter and enjoys this edition of Premises Pointers!
6/24/2026 Jacinto v Cipes
Appellate Division, Second Department
Contractors are justified in relying on plans that are not so patently defective as to place them on notice that the application of the sealant created any danger. The mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition.
Plaintiff allegedly was injured when she slipped and fell while walking across an outdoor stamped concrete walkway in front of a Dunkin' Donuts where she worked. She alleged, among other things, that a sealant applied to the walkway made it excessively slippery, especially when wet. Plaintiff filed suit against Stephen Cipes (“Cipes”), owner of the premises, Lauria Realty Services (“LRS”), property manager and Robert Lauria (“RL”), the president of the property manager, Verdi Construction (“Verdi”), the GC for the subject area, and SJS the sub-contractor that built the subject walkway.
The Trial Court granted RL, Verdi and SJS motions for summary judgment dismissal of Plaintiff’s complaint. Plaintiff appealed. The Appellate Division affirmed the Trial Court’s decision on two main grounds.
Regarding SJS and Verdi, specifically, the Appellate Division held that they did not launch a force or instrument of harm or exacerbate a dangerous condition. The Appellate Division further held that the contractors were justified in relying upon the plans and specifications that they had contracted to follow because those plans were not so patently defective as to place them on notice that the application of the sealant created any danger.
As to all moving defendants, the Appellate Division found that there mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition and moving defendants demonstrated that the plaintiff's slip and fall occurred solely because the walkway was wet due to precipitation.
6/24/2026 Edwards v Genting N.Y., LLC
Appellate Division, Second Department
The Trial Court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors. However, the confusion must be apparent from the trial record.
Plaintiff alleges he was injured when he slipped and fell on snow and black ice in a parking lot at the premises owned by Defendant. The action proceeded to a jury trial on the issue of liability. At trial, Plaintiff testified that the sheet of snow and ice that he slipped on was four to six feet wide but acknowledged that the ice was not clearly visible in the photos and that he did not see it before he fell.
At the conclusion of the trial, the jury found that, although an unsafe condition was present, Defendant was not negligent and returned a verdict in favor of Defendant. Plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial, which was denied by the Trial Court.
The Appellate Division affirmed the Trial Court’s decision that the jury’s verdict was internally consistent. While the Trial Court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors, the confusion must be apparent from the trial record.
The Appellate Division held that for a landowner to be liable in tort to a plaintiff for a slip-and-fall accident involving snow and ice on the landowner's property, it must be established that the landowner created the condition or had notice of its existence and general awareness of a condition is not sufficient.
In affirming the Trial Court’s decision, the Appellate Division held that the jury could have concluded that there was snow and ice in the parking lot but that Defendant did not negligently create the condition and did not have actual or constructive notice of.
|
|
|
Slips, Trips, and Legal Shifts: The Latest Retail, Restaurant and Hospitality Updates in New York State
By: Elizabeth K. Ognenovski [email protected]
Hello Readers,
As we head into the Fourth of July and America’s 250th year of independence, it is that peak summer moment when grills are working overtime, fireworks feel like they are in surround sound, and every gathering includes at least one person confidently declaring that they have “finally mastered” the perfect burger.
Before diving in, a quick reminder to register for our Retail and Hospitality Team’s webinar, Traumatic Brain Injury Litigation in New York: A Defense Perspective, where we will explore practical considerations for navigating high-exposure claims. The registration link is posted towards the top of Premises Pointers.
Turning to this month’s update, two recent decisions offer important takeaways for practitioners. First, in a premises liability context, the First Department reaffirmed the standard for establishing an “open and obvious” condition at the summary judgment stage. Second, a case where the First Department dismissed a direct cause of action against a party and converted the cross-claim for contractual indemnification to a third-party claim.
Have a fun and safe Fourth of July!
6/2/2026 O’Sullivan v. American Golf Corp.
Appellate Division, First Department
A premises owner cannot obtain summary judgment by offering generalized assertions of safety or conclusory expert opinions; it must affirmatively prove that the specific alleged defect was not dangerous, open and obvious, and properly maintained at the time of the accident.
The plaintiff commenced an action seeking damages for injuries allegedly sustained when his foot became lodged in a 3-to-4-inch gap between two cobblestones while exiting a bus in a parking lot owned by defendant American Golf. The defendant American Golf filed a motion for summary judgment to dismiss the complaint as against it and argued the gap was an open and obvious condition. The Bronx County Supreme Court denied the motion.
On appeal, the First Department unanimously affirmed. The Court held American Golf failed to present evidence demonstrating that the gap between the cobblestones was an open and obvious condition and not inherently dangerous. The plaintiff’s testimony was that the defect was not easily visible. The First Department explained that while American Golf’s expert opined that the cobblestones contained no defects, he failed to discuss the width or depth of the gaps between them. In addition, the Court determined the expert’s affidavit had limited probative value as he inspected the area five (5) years after the accident.
Moreover, the First Department held American Golf failed to eliminate all triable issues of fact concerning its alleged breach of its duty to maintain the premises in a reasonably safe condition. Its regional manager offered no testimony regarding the cobblestones' installation, subsequent inspections, or maintenance. Further, he did not indicate whether American Golf had received any prior complaints concerning the condition.
6/11/2026 Pihskiold v. Jane St. Hotel, LLC, et al.
Appellate Division, First Department
A dismissal of a plaintiff’s direct claims against a contractor does not necessarily eliminate contractual indemnification obligations owed to another contracting party.
At the time of the incident, the plaintiff was at a nightclub inside the Jane Hotel. She was allegedly injured when a couch, which had approximately eight patrons dancing on it, tipped over and struck her. Pursuant to a contract, the defendant Acumen Security (“Acumen”) provided security for the defendant Jane Hotel’s nightclub. Acumen filed a motion for summary judgment to dismiss the complaint as well as all cross-claims against it. The New York County Supreme Court denied the motion.
On appeal, the First Department unanimously modified, on the law, to “grant Acumen's motion for summary judgment dismissing the complaint as against it, and to convert the cross-claim of defendants The Jane Street Hotel, LLC, The Jane Hotel, Jane Street Hospitality, LLC (collectively, the Jane Hotel) for contractual indemnification against Acumen to a third-party claim.” The Court explained that Acumen demonstrated that it did not owe a duty of care to the plaintiff and could not be held liable under any Espinal exception. Acumen’s alleged failure to stop the hotel’s patrons from dancing on the couch amounted, at most, to a refusal to act for the benefit of others which cannot form the basis of a duty to the plaintiff.
The First Department further articulated that the Jane Hotel’s cross-claim against Acumen was converted to a third-party claim as the plaintiff's direct claims against Acumen were dismissed. The Court determined that “the Jane Hotel may still maintain its claim against Acumen for contractual indemnification under the broad indemnification clause in the contract.”
|
|
|
Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hi readers,
I hope everyone is enjoying their summer! This month's column highlights several recent decisions addressing procedural issues that can significantly impact the outcome of litigation, regardless of the merits of the underlying claims. The cases serve as reminders regarding diligence in effecting service, compliance with statutory conditions precedent, and the importance of timely seeking procedural relief.
6/17/2026 Wells Fargo Bank, N.A. v. Barasch
Appellate Division, Second Department
Plaintiff was not entitled to an extension of time to serve process under CPLR 306-b where it failed to act diligently after being placed on notice that service was being challenged.
The defendants in this case successfully challenged service of process, and the Supreme Court ultimately dismissed the complaint against them for lack of personal jurisdiction, finding service was invalid. More than 4.5 years after that determination—and more than 6 years after first learning that service was being challenged—the plaintiff moved pursuant to CPLR 306-b for an extension of time to serve the summons and complaint. The Supreme Court granted the motion.
The Second Department reversed, holding that the plaintiff failed to demonstrate either good cause or that an extension was warranted in the interest of justice. The Court reiterated that good cause under CPLR 306-b requires reasonable diligence in attempting service, which the plaintiff failed to establish. The Court further held that an extension was not warranted in the interest of justice because, despite being on notice of the service challenge early in the litigation, the plaintiff delayed seeking relief until the eve of the traverse hearing and then waited more than 4.5 half years after service was found improper before moving for an extension. Under these circumstances, the plaintiff's substantial and unexplained delay precluded relief under CPLR 306-b.
6/8/2026 Incorporated Village of Freeport v. Freeport Plaza West, LLC
New York Court of Appeals
A municipality's participation in discovery and litigation did not estop it from later seeking dismissal based upon defendant's failure to satisfy the statutory notice of claim requirement.
The Village commenced an action against the defendant developer for breach of contract after the developer allegedly failed to timely close on a real estate transaction. The developer asserted a counterclaim for anticipatory breach of contract but failed to file the verified notice of claim required by CPLR 9802 for contract claims against a village. Following extensive discovery, numerous court conferences, and shortly before trial, the Village moved to dismiss the counterclaim based upon the developer's failure to comply with the statutory notice of claim requirement. The developer argued that the Village should be equitably estopped from raising the issue because it had actively participated in the litigation for approximately 18 months without asserting the defense.
The Court of Appeals affirmed dismissal of the counterclaim, holding that equitable estoppel did not apply because the Village's participation in discovery and litigation, without more, did not constitute misleading conduct sufficient to excuse compliance with CPLR 9802. The Court reiterated that statutory notice of claim requirements are strictly construed and remain mandatory conditions precedent to maintaining an action against a municipality, even where the municipality had actual knowledge of the dispute and suffered no prejudice.
6/17/2026 Rakhmanova v. Lombardino
Appellate Division, Second Department
The NY Supreme Court properly exercised its discretion in vacating defendants' default in appearing on the return date of their summary judgment motion based upon a reasonable law office failure and restoring the motion to the active calendar.
Plaintiff allegedly slipped and fell on an icy sidewalk abutting defendants' property. Defendants moved for summary judgment dismissing the complaint, but their motion was marked off the calendar after they failed to appear for oral argument on the motion's return date. Defendants thereafter moved to vacate their default, restore the summary judgment motion to the active calendar, and grant the motion. The Supreme Court granted the motion, finding that defendants established a reasonable excuse for their default and a potentially meritorious defense.
The Second Department affirmed, holding that defendants provided a detailed and credible explanation of law office failure sufficient to constitute a reasonable excuse for their failure to appear and demonstrated a potentially meritorious basis for summary judgment. The Court reiterated that a party seeking to vacate a default in appearing on the return date of a motion must establish both a reasonable excuse for the default and a potentially meritorious claim or defense. After restoring the motion, the Court further held that summary judgment was properly granted because defendants established that a storm was in progress at the time of plaintiff's fall through meteorological evidence, and plaintiff failed to raise a triable issue of fact.
|
|
Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
As Fourth of July celebrations bring increased public gatherings, recreational activities, and outdoor events, property owners and businesses face heightened exposure to premises liability claims. In this month's newsletter, we examined two key issues that frequently shape the outcome of these cases: the assumption of risk doctrine and the requirement of actual or constructive notice. Through a review of recent decisions, we highlight how courts are addressing the limits of landowner liability when plaintiffs voluntarily engage in activities involving inherent risks and the evidentiary challenges associated with proving notice of allegedly dangerous conditions.
6/10/2026 Brendel v. County of Suffolk
Appellate Division, Second Department
A defendant moving for summary judgment dismissing a cause of action alleging negligence may generally sustain his or her prima facie burden by negating a single essential element of that cause of action. Such a motion "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility."
This case involved a plaintiff who sustained personal injuries in a hallway of the Suffolk County Supreme Court building when a desk that she was leaning on purportedly collapsed. The Supreme Court, Suffolk County, denied defendants’ motion for summary judgment dismissing the complaint.
On appeal, the Appellate Division unanimously affirmed. The Court found that the City had failed to demonstrate that it did not cause or create the allegedly dangerous condition or have actual or constructive notice of the alleged condition.
In support of their motion, the defendant submitted, among other things, transcripts of the deposition testimony of its employee and two employees from the State of New York Unified Court System regarding the collapsed desk. However, the testimony, which ultimately led to the denial of defendant’s motion, failed to eliminate all triable issues of fact as to whether the defendant or the State of New York had the duty to maintain the desk and when the desk was last inspected.
6/5/2026 Hurst v. State of New York
Appellate Division, Fourth Department
Under the assumption of risk doctrine, snow piles may not be considered conditions that are concealed or that unreasonably enhance the risk of the sport or recreational activity if they constitute an open and obvious condition.
This case involved a plaintiff who sustained personal injuries following a snow tubing accident in a state park. The Court of Claims, dismissed plaintiff’s claim on the grounds that plaintiff assumed the risk of injury and that the defendant was immune from liability under General Obligations Law § 9-103.
On appeal, the Appellate Division unanimously affirmed. The evidence at trial established that claimant had sledded at the park several times prior to the date of the accident. On the day of the accident, claimant went down the hill on a snow tube without incident. On her second run, which she took with her daughter, the snow tube veered toward the left and struck a pile of snow at the bottom of the hill, adjacent to a paved turnaround circle for vehicular traffic. The snow piles had been created by the plowing of a turnaround circle.
“Under the primary assumption of risk doctrine, a person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport and flow from such participation.” In actions involving the primary assumption of risk doctrine, the injured party does not have to foresee the manner in which their injury occurred so long as they are aware of the potential for injury of the mechanism from which the injury results. However, a party is not deemed to have assumed the risk of a sport or recreational activity if the “risks are concealed or unreasonably enhanced.”
Here, the Court found that the risk of hitting a snowbank and being propelled into the air was a “reasonably foreseeable consequence” of plaintiff’s participation in sledding. Furthermore, the Court found the snow piles that gave rise to the injury to be an open and obvious condition, contrary to plaintiff’s argument that they unreasonably enhanced the risk of sledding.
|
|
Hurwitz Fine P.C.
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
25 Melville Park Road, Suite 260, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Rochester
100 Office Park Way, Pittsford, NY 14534
Phone: 585-454-6850, Fax: 585-270-4572
New Hampshire
11 South Main Street, Suite 200, Concord, NH 03301
Massachusetts
444 Washington St., Suite 506, Woburn, MA 01810
Albany
Phone: 518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Englewood, NJ | Niagara Falls
Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
www.hurwitzfine.com
© 2026, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
|
|
|
|
|
