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NOTE FROM THE EDITOR:
I’m writing this cover note from the FDCC Annual Meeting in Lisbon, Portugal, and it has truly been a wonderful week. It has been such a pleasure to spend time with friends and colleagues from the defense bar and legal community, sharing ideas, meals, and fellowship, all with the beautiful backdrop of Lisbon. If you would like to learn more about the FDCC and how to get involved, please don’t hesitate to reach out.
In firm news, we’re excited to welcome Lauren Meksraitis-Elliott as a litigation attorney in our Buffalo office. After building her practice in Florida, she now represents clients throughout Western New York, bringing extensive experience in personal injury and trucking litigation. Welcome, Lauren!
In August, our Litigation Webinar Series continues 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.
And in case you missed our last webinar, “Too Slippery to Believe: Defending Fraudulent Slip/Trip and Fall Claims in New York,” Ashley Cuneo and Patrice Melville have created a Top 10 Key Takeaways legal alert, highlighting the practical strategies defense counsel and claims professionals can use to identify, investigate, and defend these cases.
Hope you all enjoy the rest of your summer!
-Jody
Don’t forget to subscribe to our other publications:
Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to be added to the mailing list.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at emm@hurwitzfine.com to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
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Retail, Restaurant and Hospitality Happenings in the 2nd Circuit and Beyond
By: Jody E. Briandi [email protected]
7/23/2026 Marcellin v. HP, Inc.
United States District Court, Western District of New York
Summary judgment motion was denied allowing negligence and strict product liability claims to proceed to trial against manufacturer and retailer Staples
Plaintiffs Carol Marcellin and Jessica Hollowell-McKay (co-administrators of Charles Hollowell's estate) sued HP, Inc. (manufacturer) and Staples, Inc. (retailer) after a fire at Marcellin's residence in Ceres, New York, on January 24, 2020. The fire was alleged to have started when the lithium-ion battery in an HP Pavilion DV6 laptop experienced "thermal runaway," ejecting flaming components that ignited paper in a closet, resulting in injuries to Marcellin and the death of Hollowell.
The HP laptop was purchased by Marcellin from Staples in 2011. The original battery was later replaced with an unauthorized battery manufactured in 2015, which lacked required safety features. The laptop's user manuals included warnings to use only HP-provided or authorized batteries, but HP did not implement battery authentication systems in Pavilion laptops until 2019 and did not issue post-manufacture warnings to warranty registrants about the risks of unauthorized batteries. Plaintiffs' experts attributed it to internal battery failure (thermal runaway due to overcharge), while HP's experts suggested the battery failed due to an external fire source.
Plaintiffs claimed the laptop was defectively designed because it lacked a battery authentication system to prevent use with unauthorized batteries. The court found sufficient evidence to allow this claim to proceed to trial, as Plaintiffs' expert identified feasible alternative designs available at the time of manufacture. Plaintiffs further alleged HP failed to adequately warn about the dangers of using unauthorized batteries, both at the time of sale and post-manufacture. The court found that the adequacy of the warnings and whether additional warnings would have prevented the fire were genuine issues of material fact for the jury.
Ultimately, the cause of the fire (whether it originated from the battery or from an external source) remained a disputed factual issue, precluding summary judgment.
Regarding the role of the Retailer (Staples, Inc.), Staples was named as the retailer from whom Marcellin purchased the HP laptop. The court's opinion primarily focused on the manufacturer (HP) regarding product design, warnings, and post-manufacture duties. There was no specific discussion or analysis in the provided content regarding any independent liability or actions of Staples as retailer, nor any separate legal standard applied to Staples distinct from HP. The case was allowed to proceed to trial on the issues of design defect and failure to warn, with the adequacy of warnings and the cause of the fire remaining factual questions for the jury. The retailer, Staples, was included as a defendant due to its role as the point of sale. Under strict products liability, a retailer can be held liable for injuries caused by defective products, even if the retailer was not negligent. This liability is based on the policy that those in the chain of distribution, including retailers, are in the best position to ensure product safety and bear the costs of injuries caused by defective products.
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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 July winds down, many of us are squeezing in one last beach day, firing up the grill, or trying to convince ourselves there is still plenty of summer left. While the calendar may be inching toward August, the courts have not taken a summer vacation and have continued to deliver decisions that offer valuable guidance for practitioners.
This month's roundup highlights two noteworthy cases. The first examines what it takes to establish a reasonable excuse for a default. The second case examines whether a U-boat dolly constituted an open and obvious condition.
7/15/2026 Ferere v. Saks Fifth Ave., LLC
Appellate Division, Second Department
“‘A party seeking to vacate a default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion . . . While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse.’”
The plaintiff commenced an action after she allegedly sustained injuries following a slip and fall. During discovery, the defendants repeatedly sought records and responses, and in July 2022 the court ordered the plaintiff to comply with outstanding discovery demands. The plaintiff failed to do so. The plaintiff also failed to oppose subsequent motions by the defendants seeking to dismiss the complaint under CPLR § 3126(3) for noncompliance with discovery obligations and court orders. As a result, the Queens County Supreme Court granted those branches of the defendants’ motions. In August 2023, the plaintiff moved under CPLR § 5015(a)(1) to vacate the orders and the lower court denied the motion.
On appeal, the Second Department affirmed the lower court’s holding. The Court held the plaintiff did not establish a reasonable excuse for her defaults. “The plaintiff’s conclusory and unsubstantiated assertions that the attorney assigned to the case ‘inexplicably’ failed to take required actions with regard to the case were insufficient to establish a reasonable excuse for the defaults.”
7/22/2026 Baute-Mestre v. Stop & Shop Supermarket Co., LLC
Appellate Division, Second Department
“‘The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case.’”
The plaintiff commenced an action against the defendant Stop & Shop after she allegedly tripped and fell over a U-boat dolly in the frozen foods aisle. Stop & Shop moved for summary judgment to dismiss the complaint and argued, among other things, that the dolly was an open and obvious condition and was not inherently dangerous. The Nassau County Supreme Court granted that branch of Stop & Shop’s motion for summary judgment to dismiss the complaint.
On appeal, the Second Department affirmed the lower court’s holding. The Second Department determined that the evidence submitted, including surveillance video, established that the dolly was open and obvious and not inherently dangerous. The plaintiff failed to raise a triable issue of fact in opposition.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hello readers,
I hope everyone is enjoying their summer. Although the temperatures have been rising, New York’s appellate courts have not taken the summer off. This month’s cases offer timely reminders about preserving a fair trial, avoiding default judgments, and recognizing when a motion to reargue is simply an attempt to take another bite at the apple.
7/22/2026 Sahl v. Rodriguez
Appellate Division, Second Department
A jury verdict will not be set aside in the interest of justice based on isolated remarks during closing arguments unless the challenged conduct likely affected the verdict or deprived a party of a fair trial.
The plaintiff commenced this personal injury action after the van he was driving collided with a bus. Following a trial limited to liability, the jury returned a verdict in favor of the defendants.
The plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict and for a new trial. He argued that the trial court improperly sustained an objection during his counsel’s closing argument when counsel discussed the observations of an accident witness. He also contended that defense counsel improperly suggested during summation that the plaintiff had an ulterior motive for commencing the lawsuit.
The 2nd Department affirmed the denial of the motion. The Court held that the plaintiff’s counsel’s remarks were not supported by the trial record and were therefore properly limited. The Court further found that defense counsel’s comments concerning the plaintiff’s motivation were isolated and not so prejudicial as to deprive the plaintiff of a fair trial or substantial justice.
7/9/2026 G-Unit Books, Inc. v. Tompkins
Appellate Division, First Department
New York courts generally prefer to decide cases on their merits rather than by default, particularly where the delay is relatively short, the opposing party is not prejudiced, and there is a reasonable explanation for the failure to respond.
The plaintiff moved for a default judgment after the defendant failed to answer the complaint for approximately four months. The defendant opposed the motion and requested additional time to answer, explaining that she had never received the summons and complaint.
The record supported that explanation. The plaintiff’s process server attempted service at several addresses, but there was no evidence that the defendant lived at any of them. At one location, building security stated that she no longer lived there. At another, a tenant said he did not know her. The defendant also submitted an affidavit stating that she had not lived at one address since 2015 and had not received any lawsuit papers at a mailbox she maintained at a UPS Store.
The plaintiff argued that the defendant must have known about the lawsuit because it received online media attention. The 1st Department rejected that argument, finding that media coverage and a report that TMZ sought comment did not establish that the defendant actually knew about the case.
The Court affirmed the denial of the default judgment and permitted the defendant to serve a late answer. Because no default order or judgment had previously been entered, the defendant was not required to prove that she had a winning defense. Instead, she only needed to show that her defenses were potentially valid, not that she was certain to prevail.
7/22/2026 Mrkulic v. Peters
Appellate Division, Second Department
A motion for leave to reargue must identify matters of fact or law that the court overlooked or misapprehended. It cannot be used to repeat arguments already considered, present new arguments, or obtain successive opportunities to relitigate an unsuccessful position.
The plaintiff commenced a legal malpractice action and obtained an unopposed default judgment against the defendants. The defendants thereafter moved pursuant to CPLR 5015 to vacate the default. The Supreme Court granted the motion and directed that the defendants’ answer be deemed timely served and filed.
The plaintiff moved pursuant to CPLR 2221(d) for leave to reargue his opposition to the defendants’ motion. The Supreme Court granted reargument, reinstated the default, and entered judgment against the defendants in the principal sum of $255,405.86.
The 2nd Department reversed, holding that the plaintiff failed to demonstrate that the Supreme Court had overlooked or misapprehended any relevant fact or misapplied any controlling principle of law when it originally vacated the default. Accordingly, the plaintiff was not entitled to reargument, and the order vacating the default and permitting the defendants’ answer was reinstated.
The Court also dismissed the direct appeal from the reargument order because the right to appeal from an intermediate order terminates upon entry of a final judgment. Under CPLR 5501(a)(1), however, the issues raised concerning that order were reviewable on the appeal from the judgment.
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Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
As we reach the midpoint of another beautiful summer in Upstate New York, schools are preparing for the return of students and municipalities continue the responsibility of maintaining safe public spaces for summertime activities. This month, we focus on developments in claims against schools and municipalities, with a focus on the legal challenges and opportunities that arise when dangerous property conditions cause injury.
7/24/2026 Sterk v. State of New York and State of New York Canal Corporation
Appellate Division, Fourth Department
“A condition as a public way that is properly designed at the time of its construction is not rendered dangerous merely because of later changes in design standards.”
This case involved a plaintiff who sustained personal injuries while riding her bicycle on the Erie Canal Heritage trail. She allegedly struck a wooden bollard placed in the middle of the trail near a road crossing which was to prevent unauthorized vehicular access to the shared use path and bikeway.
On appeal, the Appellate Division unanimously affirmed the lower court's order denying both the plaintiff's and the defendant's motions for summary judgment. The Court found that the plaintiffs failed to meet their burden of establishing that the bollard plaintiff struck was a dangerous condition even though there had been changes in the design standards. Although later standards discouraged bollards on bicycle paths, the Court held they were inapplicable because the path had not been significantly repaired or reconstructed.
In further support of their argument that the bollard created a dangerous condition, the plaintiffs submitted evidence of two prior accidents involving bollards on different portions of the canal trail. However, the Court found this evidence insufficient because the prior accidents did not involve the same or similar contributing factors as the plaintiff’s accident.
With respect to the defendant’s motion, the Court ruled they failed to establish the bollard was not a dangerous condition. In support of their motion, the defendants submitted safety guidelines and design standards warning that bollards may be struck by bicyclists and the plaintiff’s deposition testimony that she did not see the bollard while riding her bike. However, the Court held that an open and obvious nature of the condition “bears only on the injured person’s comparative fault and does not negate a defendants’ duty to maintain their property in a reasonably safe condition.”
7/15/2026 Hinds-Pearl v. County of Westchester
Appellate Division, Second Department
Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where there is a local law requiring such notice so long as the municipality did not create the condition through an act of negligence or a special use that resulted in a special benefit to the municipality.
This case involved a plaintiff who sustained personal injuries when the bicycle she was riding hit a height differential between a curb and asphalt walkway in front of the east parking lot at the Westchester County Center. The Supreme Court, Westchester County dismissed the plaintiff’s claim on the grounds that the County had no prior notice of the defect.
On appeal, the Appellate Division affirmed the lower court’s ruling. Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where there is a local law requiring such notice. When a municipality has adopted a prior written notice law, the municipality cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. Once a municipality establishes a lack of prior written notice, the plaintiff must show either that the municipality created the defect through negligence or that a special use conferred a special benefit on the municipality.
The Court held that affidavits from the Clerk of the County Board of Legislators and the Commissioner of the County Department of Public Works and Transportation established that a search of the relevant records revealed no prior written notice of a defective condition at the subject location. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County received prior written notice of the alleged defect condition or that the County affirmatively created the alleged condition through an act of negligence.
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