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NOTE FROM THE EDITOR:
Happy end of summer!
August has been a busy month at Hurwitz Fine. We kicked off the month with a two-day Attorney Development Program in Buffalo, featuring sessions focused on substantive legal topics and practical skills, from mediation and civil depositions to legal writing and generative AI. Thank you to all of our speakers—including a few Premises Pointers subscribers and clients—for sharing their time, experience and knowledge with our team.
Following the program, we hosted our annual summer party, bringing together team members from across New York and New England. It was great to see so many familiar and new faces together!
Looking ahead to September, Buffalo and Long Island litigation attorneys Mike Williams and Patrice Melville will present our next litigation webinar, “Actual Intelligence Required: AI Hallucinations, Professional Responsibility, and the Practice of Law,” on Thursday, September 24 at 1:00 p.m.
As clients increasingly expect lawyers to use AI to deliver faster, more efficient and cost-effective legal services, how much confidence should we place in a machine that is guessing? Mike and Patrice will go beyond the familiar warning to “check your citations” to explore the less obvious risks of AI-assisted legal work, including flawed legal analysis, professional responsibility concerns, confidentiality and bias. They’ll also discuss practical strategies for determining where AI can improve efficiency—and where actual intelligence remains essential.
For more information and to register, click here.
Now, on to this month’s Premises Pointers!
-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]
8/26/2026 T.S.W. v. Dollar Tree Stores Inc.
United States District Court, Eastern District of New York
In a lead paint case against a retailer, the Magistrate Judge recommended denying plaintiffs' Motion for Class Certification.
On August 21, 2025, minor plaintiffs, through their parents and natural guardians, filed a complaint against Dollar Tree on behalf of themselves and all other Children and Parents common to the action, bringing claims of negligence, strict products liability, breach of express warranty and implied warranty, negligence per se, and gross negligence in connection with Dollar Tree's sale of lead-contaminated WanaBana Apple Cinnamon Fruit Puree Pouches. The FDA issued lead contamination alert for WanaBana pouches on October 28, 2023. Dollar Tree implemented register lock on October 30, 2023 to prevent sales. None of three named plaintiffs purchased or consumed pouches after the recall. The named plaintiffs' peak blood lead levels varied, with one diagnosed with autism but no doctor attributed it to lead exposure, another with a high blood lead level but exhibited no developmental delays or symptoms, and another with blood lead level normal after decline.
The Magistrate Judge recommended denying class certification for purchasers of lead-contaminated WanaBana pouches from Dollar Tree because the three named plaintiffs failed to establish commonality where none purchased after the October 2023 recall, their blood lead levels varied dramatically, and their health outcomes differed significantly (one autism diagnosis not medically attributed to lead, one no symptoms despite highest lead level, one moderate level deemed normal by doctor). The Magistrate Judge found typicality and predominance failed because individual inquiries into each class member's lead exposure, blood lead levels, injuries, and causation would be required, defendant Dollar Tree had unique defenses regarding genetic and environmental factors for each plaintiff, and state law variations across the proposed nationwide class created insurmountable manageability problems. Finally, the court rejected plaintiffs' request for a medical monitoring class because Dollar Tree implemented a register lock after the October 2023 recall, no named plaintiff purchased pouches after the recall, and plaintiffs' own expert Dr. Lidsky acknowledged that individualized comprehensive neuropsychological evaluations would be required as a prerequisite to any to any treatment program, making uniform classwide monitoring impossible.
8/4/2026 Bartholomew v. Walmart Inc.
United States District Court, Eastern District of New York
Retailer’s summary judgment motion was denied and the court went so far as to say that this might even be a res ipsa loquitur case though said that such a determination would require additional pre-trial briefing.
Bartholomew slipped on water puddle at Walmart on rainy February 2, 2024. The puddle was located approximately ten steps from indoor shopping cart corral. Since Walmart employees routinely return shopping carts to indoor corral, the inference was that the puddle was created by wet carts being brought inside by Walmart employees, thus further implying that the dangerous condition was created by Walmart. Walmart's Customer Incident Report also stated fall was "from water due to carts being wet from rain." A Walmart supervisor believed Bartholomew "slipped on some water from the carts." In addition, discovery revealed that Walmart failed to deploy rain mats, fans, or conduct safety sweeps per their own inclement weather policy. For all these reasons, the court denied Walmart’s motion in its entirety and even concluded that this could be a res ipsa loquitor case.
8/4/2026 McCahon v. Harbor Freight Tools USA Inc.
United States District Court, District of Connecticut
Connecticut Federal Court Remands Harbor Freight Case.
A federal district court rejected Harbor Freight’s attempt to remove a Connecticut personal injury action based on fraudulent joinder. The court held that the complaint plausibly alleged an independent negligence claim against Carmen Barrientos, a Connecticut store supervisor, defeating diversity jurisdiction. McMahon alleged that he was injured while helping load a storage cabinet at Harbor Freight’s West Hartford store after an employee dropped the cabinet. He claimed Barrientos failed to provide adequate personnel and appropriate safety measures for the task. Because Connecticut law permits individual employee liability for personal negligence, the allegations presented at least a possible basis for recovery against Barrientos. Harbor Freight’s assertions that Barrientos held a different title or lacked the alleged responsibilities merely contested the complaint’s factual allegations, which the court was required to construe in the plaintiff’s favor on remand. The court also found that arguments concerning vicarious liability and potential double recovery went to ultimate relief, not the viability of the claim.
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Ashley M. Cuneo [email protected]
Hi Readers,
This month’s cases were a mix of decisions regarding snow/ice and leaves – just intime for fall and winter. However, all dealt with the same premise – the movant is required to establish a prima facie entitlement to summary judgment before the burden shifts to the opposing party.
8/19/2026 Schultze v AKI Acquisition Corp.
Appellate Division, Second Department
Neither conclusory and speculative affidavits, nor affidavits of individuals that didn’t witness the accident will be sufficient to create a question of fact in opposition to a motion for summary judgment.
Plaintiff was allegedly injured when she slipped and fell on leaves on the front steps of her workplace. Plaintiff sued AKI, the owner of the premises. The Trial Court granted defendant’s motion for summary judgment; which was affirmed by the Appellate Division.
The Court held that although a property owner has a duty to maintain its premises in a reasonably safe condition, there is no duty to protect against an open and obvious condition that, as a matter of law, is not inherently dangerous.
The Court, in determining whether a condition is not inherently dangerous, looks at the totality of the specific facts. The Appellate Division found that the defendants established their prima facie entitlement to summary judgment. However, the Plaintiff failed to raise a triable issue of fact with its witness statements of individuals that didn’t witness the accident and the facilities maintenance consultant’s affidavit was conclusory and speculative.
8/19/2026 Melia v Greentree Condominium
Appellate Division, Second Department
The property owner must eliminate that it was free of fault for Plaintiff’s accident to establish a prima facie entitlement for summary judgment.
Plaintiff was allegedly injured when she slipped and fell on an icy grate outside of a garage, owned by defendant Parmel, that was located beneath the owner of the condominium, King-Seng, and maintained by Greentree. The grate became icy when a pipe burst in the condo unit that leaked onto the grate.
The Appellate Division held that King-Seng’s motion should have been denied, regardless of the sufficiency of Greentree’s opposition, as it failed to establish a prima facie entitlement to summary judgment. King-Seng failed to eliminate trial issues of fact as to whether it was responsible for the pipe that burst or that it was free of fault.
Regarding Greentree’s motion, the Appellate Division held that the Trial Court properly denied Greentree’s motion on the ground that Plaintiff couldn’t identify the cause of her fall as it didn’t establish a prima facie entitlement to summary judgment. The Appellate Division also held that Plaintiff sufficiently identified the cause of her fall.
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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,
Summer is sadly packing its bags, football is warming up, and suddenly everyone has somewhere to be on Sunday afternoon. Here in Western New York, our flip-flops are not quite ready to go into storage, but our jerseys are coming out as us Bills fans are already convinced this is our year. This month, I analyze a new case out of the Second Department involving an out-of-possession landowner.
8/12/2026 Bonilla v. 702 Rockaway Ave, LLC
Appellate Division, Second Department
“’An out-of-possession landlord and its agent are generally not responsible for injuries that occur on the subject premises unless the landlord has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct.’ ‘While reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition . . . control refers to the ability of an out-of-possession landlord to remedy dangerous conditions.’"
The plaintiff, a beer delivery worker, was allegedly injured while making a delivery at the property owned by the defendant 702 Rockaway Avenue (“landlord”) and leased to the defendant Livonia Deli Corp. (“tenant”). The plaintiff claimed to have been struck on his head by closing cellar doors as he ascended from the basement the of the property. The landlord moved for summary judgment to dismiss the complaint and all cross-claims and counterclaims arguing it was an out-of-possession landlord. The Kings County Supreme Court granted the motion and the tenant appealed.
On appeal, the Second Department determined the lower court properly granted the branches of the landlord’s motion for summary judgment to dismiss all cross-claims and counterclaims asserted against it. The Court explained that the lease and testimony established, prima facie, that the landlord was an “out-of-possession landlord that had relinquished control of the property to [the tenant] and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct.” The landlord demonstrated it did not create the alleged dangerous condition or have actual or constructive notice of it. Specifically, the testimony confirmed that the tenant periodically maintained the cellar doors. Further, the tenant secured the cellar doors with a padlock and was the only one who had the key. In opposition the tenant failed to raise an issue of fact.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hi readers,
As summer begins to wind down, we hope everyone has had a chance to enjoy the warmer weather, longer days, and some well-deserved time away. With fall just around the corner, we’re back with another monthly update.
8/12/2026 Matter of Cataldo v. Town of East Hampton
Appellate Division, Second Department
Petitioner was not entitled to serve a late notice of claim where the Town’s knowledge of the accident and injury did not provide actual knowledge of facts connecting the accident to the Town’s alleged negligence.
General Municipal Law § 50-e generally requires a notice of claim to be served within 90 days after the claim arises. In deciding whether to permit a late notice of claim under § 50-e(5), courts consider, among other factors, whether the municipality had actual knowledge of the essential facts constituting the claim, whether the claimant had a reasonable excuse for the delay, and whether the delay substantially prejudiced the municipality.
Petitioner suffered a severe spinal cord injury after a wave forced him into the ocean floor while he was floating approximately 100 yards beyond the designated swimming area at South Edison Beach. Town lifeguards assisted him, and his family returned one week later to question the lifeguards about the accident. More than ten months later, Petitioner served a notice of claim alleging that the Town’s lifeguards negligently failed to warn him that he was outside the designated swimming area and that it was dangerous to float with his back to the ocean.
The Second Department reversed the order permitting the late notice of claim. Although the Town knew of the accident and Petitioner’s serious injury, it lacked actual knowledge of facts connecting the accident to any alleged negligence by the Town. Any knowledge acquired by the lifeguards could not be imputed to the Town because they were not in a position to investigate the potential claim. The Court also found that Petitioner lacked a reasonable excuse for the delay and that the Town demonstrated substantial prejudice because the lifeguard captain’s memory had faded concerning Petitioner’s statements about alcohol consumption and other details of the accident.
8/14/2026 Oakley v. MSG Networks, Inc.
United States District Court, Southern District of New York
Defendant was entitled to renew its summary judgment motion after discovery where newly developed video and testimonial evidence eliminated the factual disputes that had previously required reversal of pre-discovery summary judgment.
Former New York Knicks player Charles Oakley asserted assault and battery claims against Madison Square Garden (“MSG”) arising from his removal from Madison Square Garden during a 2017 Knicks game. MSG had previously obtained pre-discovery summary judgment based primarily on video footage of the incident, but the Second Circuit reversed because the footage was unclear and additional discovery could provide other camera angles and eyewitness testimony bearing on whether security personnel used excessive force. On remand, the parties conducted extensive discovery, including fifteen fact-witness depositions, two expert depositions, additional videos, and sworn eyewitness statements. MSG then renewed its motion for summary judgment.
The Court granted MSG’s renewed motion. It rejected Oakley’s argument that the Second Circuit’s prior decision required the case to proceed to trial, reasoning that the earlier reversal addressed only the underdeveloped pre-discovery record and did not bar a renewed summary judgment motion based on newly obtained evidence. Indeed, the Second Circuit had expressly contemplated that additional discovery could resolve the factual uncertainty. The completed record did exactly that: multiple videos showed that Oakley slipped rather than being pushed to the ground, eyewitnesses consistently testified that security personnel did not use excessive force, and portions of Oakley’s own testimony and prior statements conflicted with his litigation position. The Court therefore concluded that no rational jury could credit Oakley’s account and granted summary judgment to MSG.
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Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
As summer recess comes to an end and the 2026-2027 academic year begins, municipalities and school districts once again welcome increased numbers of students, staff, parents, and community members to their properties. With this heightened activity comes renewed exposure to premises liability claims arising from alleged dangerous or defective conditions on public property. From sidewalks, parking lots, and athletic facilities to school grounds and municipal buildings, even routine maintenance issues can lead to significant litigation and potential liability.
In this month's newsletter, we examine recent developments and emerging trends in premises liability litigation affecting municipalities and school districts. As public entities prepare for the busy fall season, proactive attention to property conditions remains one of the most effective tools for minimizing claims and protecting public resources.
8/19/2026 Kerner V. City of New York
Appellate Division, Second Department
New York City Department of Transportation regulation 34 RCNY § 2-07(b) requires owners of street covers and gratings, including those on sidewalks, to maintain the hardware and the surrounding area within twelve (12) inches of its perimeter and ensure the hardware remains flush with the surrounding surface.
This case involved a plaintiff who sustained personal injuries after tripping on a metal sidewalk grate. On appeal, the Appellate Division reversed the lower court’s order granting defendant’s motion for summary judgment dismissing plaintiff’s complaint in which they argued a private utility company owned and was responsible for the sidewalk grate that caused plaintiff’s injuries. The Court found that defendants failed to eliminate all triable issues to fact as to whether the City or utility company owned the sidewalk.
In support of their position, defendants submitted an affirmation of a Department of Transportation (“DOT”) employee stating she inspected the sidewalk grate more than seventeen months after the alleged incident. However, the Court held the affirmation was conclusory and lacked proper foundation because the employee failed to set forth any specific details regarding the inspection process and her specific observations regarding the grate. Most importantly, the defendant’s employee failed to set forth a factual basis for the conclusion that the utility company owned the sidewalk grate at the time of plaintiff’s accident.
8/12/2026 Donohue v. City of Long Beach
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 he slipped and fell on ice while crossing a crosswalk in the City of Long Beach. The Supreme Court, Nassau County granted defendant’s motion to dismiss on the grounds that the City lacked prior notice of the hazardous condition.
On appeal, the Appellate Division, Second Department 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 the affidavit from the Commissioner of Public Works established that the City had no prior written notice of the alleged condition as required by the statute. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City received prior written notice of the alleged condition or created the condition themselves through an act of negligence or a special use that conferred a special benefit.
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