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NOTE FROM THE EDITOR:
Happy fall!
We are pleased to welcome several new attorneys who have recently joined Hurwitz Fine in our Buffalo and Long Island offices:
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Erick D. Kraemer joins the firm as a Member in our Buffalo office, focusing his practice on Business & Commercial Litigation and Labor & Employment, with extensive experience representing businesses in complex commercial, employment and regulatory matters. He works closely with clients to evaluate legal risks and develop strategies that align with their broader business goals.
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Sarah K. Hyman joins as Special Counsel in our Buffalo office, focusing on Economic Development & Public Incentives, Business Services and Commercial Real Estate. With more than a decade of experience in corporate, transactional and real estate matters, she has advised businesses, nonprofit organizations and governmental entities and supported significant development projects and transactions.
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Alice J. Cunningham joins our Buffalo office as an Associate with a diverse practice that includes general liability defense, municipal litigation, condominium and homeowners association matters, environmental claims, and mediation & arbitration. She represents municipalities, school districts, contractors, insurance carriers, associations and individuals in civil and commercial matters in state and federal court and also serves as a trained mediator.
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Cheryl D. Kennedy joins our Buffalo office as an Associate, focusing on litigation matters, including premises liability, motor vehicle accidents and medical malpractice. She brings experience representing both plaintiffs and defendants, as well as a background in regulatory compliance and risk management within the insurance industry.
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Vashti A. Persaud joins our Melville office as an Associate, concentrating her practice on civil litigation and personal injury defense, including automobile liability, construction accidents, general liability and premises liability. She represents clients across a range of personal injury matters and supports the firm’s expanding litigation practice on Long Island.
We also welcome Associates-Pending-Admission, Ethan A. Berg and Ann Marie E. Marseglia to our Insurance Coverage area in Buffalo and Rochester. We are excited to welcome these seven individuals to our team across the state!
As October is Estate Planning Awareness Month, join our Trusts & Estates team for a practical webinar exploring strategies for transferring real property. Hurwitz Fine attorneys Melissa A. Pezzino and Lauren Meksraitis-Elliott will discuss planning for properties in multiple states, the use of trusts, and Transfer on Death and Life Estate deeds in New York. Register here to learn more about the options and key considerations when incorporating real property into an estate plan.
Also on the estate planning horizon is a significant change coming to New York. Beginning December 12, 2027, New York will recognize properly executed electronic wills under the new Electronic Wills Act. In our recent legal alert, “New York’s Electronic Wills Act: A New Option on the Horizon for Estate Planning,” Attorney Melissa Pezzino looks at what the new law will allow, its execution and filing requirements, and what clients should know as electronic wills become a new estate planning option in New York. Read the full article here.
Now, onto this month’s cases and the latest Premises Liability developments.
-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]
Three recent federal decisions show how threshold procedural questions can determine where a case proceeds. One transferred a product liability suit to a more convenient district and two sent removed actions back to state court because the defendants had not established federal jurisdiction.
9/15/2026 Briley v. Century Arms, Inc.
United States District Court for the District of Vermont
A pistol purchased from a retailer in North Carolina allegedly malfunctioned on a hunting trip resulting in injuries and a lawsuit filed in the District of Vermont—the case was ultimately transferred to North Carolina because the accident, witnesses, medical treatment, and governing law were all centered there, making Vermont an inconvenient forum.
Plaintiff (a resident of North Carolina), filed suit in the U.S. District Court for the District of Vermont against Century Arms, Inc., Century International Arms, Inc., and Canik USA, LLC (corporations with principal places of business in Florida). The lawsuit asserted claims for negligence, strict products liability, and vicarious liability after a 9mm pistol and holster kit—manufactured and distributed by the defendants and purchased by a retailer in North Carolina. The pistol allegedly malfunctioned during a North Carolina hunting trip, causing a strap to loop through the trigger guard and discharge twice into the plaintiff's leg and foot. The key legal issues before the court were whether the action should be dismissed on forum non conveniens grounds or, alternatively, transferred to the Eastern District of North Carolina under 28 USCS § 1404(a). The doctrine provides for a transfer of venue rather than dismissal when another federal court is the more convenient forum. The court denied the motion to dismiss, but granted the motion to transfer the case to the Eastern District of North Carolina, finding that the convenience of the witnesses, the North Carolina locus of operative facts, the applicability of North Carolina law, and trial efficiency heavily favored transfer, while denying the defendants' remaining motions to dismiss or strike certain claims as moot.
9/24/2026 Aljoe v. Advantagecare Physicians, P.C.
United States District Court, Eastern District of New York
A federal judge sent the case back to state court, holding that the plaintiff’s employment claims—even though they referenced federal law and HIPAA—did not create federal jurisdiction because she pleaded only state and local causes of action. References to federal law alone do not establish federal question jurisdiction.
The court granted the pro se plaintiff’s motion to remand her employment discrimination and retaliation lawsuit back to New York state court after finding that the federal court lacked subject matter jurisdiction. The plaintiff originally filed her suit in state court alleging violations of New York Labor Law, the New York State Human Rights Law, and the New York City Human Rights Law, though her complaint also made reference to federal employment laws and potential patient privacy violations under HIPAA. The defendant removed the case to federal court, asserting that these federal references established federal question jurisdiction under 28 USCS § 1331. The court rejected the defendant's jurisdictional arguments, explaining that under the well-pleaded complaint rule, a plaintiff is the master of her complaint and can choose to avoid federal jurisdiction by pleading only state claims, which the plaintiff did by repeatedly stating she was not asserting standalone federal causes of action.
Furthermore, the court determined that the federal issues in her state law retaliation claim under NY CLS Labor § 740 were not "substantial" enough to trigger federal question jurisdiction. Because Section 740 only requires that an employee "reasonably believe" a federal statute was violated, the resolution of the claim is inherently fact-bound and specific to the parties, rather than presenting a pure issue of federal law that would have a broader effect on the federal system as a whole. Consequently, because the defendant failed to meet its burden of showing proper federal jurisdiction, the court granted the motion to remand.
9/23/2026 Bailey v. Ritz-Carlton Hotel Co., LLC
United States District Court, Southern District District of New York
Action was remanded back to state court after finding that the removing defendants failed to adequately allege both complete diversity of citizenship and that the amount in controversy exceeded $75,000.
At issue was a notice of removal filed by Defendants The Ritz-Carlton Hotel Company, LLC, Marriott Hotel Services, LLC, and Marriott International, Inc. The Defendants sought to remove the action from state court to federal court, asserting federal diversity jurisdiction under 28 USCS § 1332. However, the court determined that the Defendants failed to adequately establish both diversity of citizenship and the required amount in controversy. Regarding citizenship, the court noted that a limited liability company (LLC) is deemed a citizen of every state of which its members are citizens. While the Defendants alleged the citizenship of "all members" of Marriott LLC, they only alleged the citizenship of "all corporate members" of Ritz LLC, creating an unresolved ambiguity as to whether Ritz LLC possessed non-corporate members whose citizenships were omitted.
Regarding the amount in controversy, the court ruled that the Defendants' reliance on the state court pleadings which alleged that the plaintiff sought damages in excess of the jurisdictional limits of lower New York courts and sustained "severe and permanent personal injuries" was insufficient. Under New York law, specifically NY CLS CPLR § 3017(c), stating that damages exceed lower-court limits is merely a pleading requirement and does not independently satisfy the federal threshold. Furthermore, generalized, boilerplate allegations of severe and permanent injuries do not permit the court to reasonably infer that the $75,000 jurisdictional threshold has been met. Consequently, the court vacated a prior mediation referral and remanded the case back to the New York State Supreme Court, Bronx County, without prejudice to a future notice of removal that provides an adequate jurisdictional basis.
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Patrice C.S. Melville [email protected]
Hi Readers,
This month’s offerings address two recurring premises liability questions: when a contractor’s work may create a duty under Espinal, and when the “storm-in-progress” rule warrants summary judgment. In Macri, evidence that a contractor may have improperly applied a nonslip coating and created visually indistinguishable surfaces was enough to raise a triable issue. In Batista, factual questions about whether the ice predated the storm and whether the defendants had notice of it kept the case alive. As the Fall settles in and we start thinking about the first icy morning, both decisions remind us to look closely at how a hazard arose—and whether the summary judgment record resolves the facts that matter.
9/16/2026 Batista v. Allerton Ave. Ests., LLC
Appellate Division, Second Department
An Ongoing Storm Doesn’t End the Inquiry: Prior Ice May Keep a Sidewalk Claim Alive
The plaintiff alleged that she slipped on snow and ice on a sidewalk abutting the defendants’ premises at approximately 12:10 p.m. on February 7, 2021. She claimed that the defendants negligently maintained the sidewalk and created a dangerous condition through improper snow removal. The defendants moved for summary judgment, arguing that the storm-in-progress rule barred the claim because a snowstorm was underway when the plaintiff fell. The lower court granted the motion.
On appeal, the Second Department reversed and denied summary judgment, holding that the defendants failed to meet their initial burden. Although their evidence showed that a storm was in progress, it did not eliminate triable issues as to whether the ice came from an earlier storm and whether the defendants had constructive notice of that preexisting condition. Because the defendants did not establish their prima facie entitlement to judgment, the court denied the motion without considering whether the plaintiff’s opposition was sufficient.
The decision underscores that proof of an ongoing storm alone may not establish entitlement to summary judgment. A property owner relying on the storm-in-progress rule must also address whether the condition resulted from the current storm or predated it, and whether the owner had notice of any preexisting hazard.
9/16/2026 Macri v. Fluor Enters., Inc.
Appellate Division, Second Department
Same Dock, Different Surfaces: When an Invisible Transition Can Keep a Slip-and-Fall Case Alive
The plaintiff slipped and fell on a loading dock at an IBM-owned facility operated by Fluor Enterprises. The fall occurred in October 2014, about a month after Certa Pro Painters installed a Citadel flooring system. At IBM’s direction, Certa Pro applied additional nonslip material only to the area primarily used by IBM’s chief executive officer. The plaintiff fell near the transition between the treated and untreated areas, which allegedly appeared identical. He claimed that Certa Pro improperly applied the coating and that the defendants created and failed to correct a dangerous floor condition.
The Supreme Court granted summary judgment dismissing the claims against Certa Pro, IBM, and the Fluor defendants. On appeal, the Second Department modified the order, reinstating the claims against Certa Pro, IBM, and Fluor Enterprises. It left dismissal in place as to Fluor Corporation. The cross-appeal by IBM and Fluor Enterprises was deemed dismissed under 22 NYCRR 1250.10(a).
As to Certa Pro, the court applied the general rule of Espinal v. Melville Snow Contractors that a contractor’s agreement alone does not create a duty to third parties, but the contractor may be liable if its negligent performance launches a force or instrument of harm. A contractor seeking summary judgment where that theory is alleged must eliminate material factual issues and establish that it did not negligently create the claimed defect. Although Certa Pro showed that the Citadel system was marketed as meeting minimum friction standards and that it lacked actual, constructive, or imputed knowledge that the product could make the floor dangerously slippery, the plaintiff’s experts raised triable issues. Relying on Citadel training materials, they opined that Certa Pro may have failed to apply the nonslip aggregate properly, failed to test the floor’s slip resistance after installation, and created a hazard by leaving two different walking surfaces visually indistinguishable and without a warning. The court reiterated that a floor’s slipperiness alone does not establish negligence; here, the expert evidence provided a basis to find negligent application and creation of a dangerous condition.
IBM and Fluor Enterprises established that they did not know, and had no reason to know, that the flooring system might be dangerously slippery or that prior accidents had occurred. But the plaintiff raised a separate triable issue as to whether they created the hazard by directing Certa Pro to install two different walking surfaces on the same dock without making them visually distinct. The court therefore reinstated the claims against those defendants. The plaintiff’s argument that Fluor Corporation exercised dominion and control over Fluor Enterprises was raised for the first time on appeal and was not considered.
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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,
Fall is in full swing here in Western New York with cooler temperatures and the emotional roller-coaster of each Bills game. This month’s article explores two new decisions, one case involves falling merchandise and the other pertains to an open and obvious condition.
9/16/2026 Abdelrahman v. Stop & Shop
Appellate Division, Second Department
The happening of a merchandise-related accident does not establish a defective or dangerous display, and a speculative safety-expert affidavit cannot defeat summary judgment.
The plaintiff commenced a personal injury action against Stop & Shop Supermarket Company, LLC, and Cross Path Rlty and the defendant Coca-Cola Refreshments USA, Inc. after he was allegedly struck by bottles of soda. The plaintiff claimed that while obtaining a bottle of soda from a display created by Coca-Cola, he was struck when other bottles fell from the display. All three defendants moved for summary judgment to dismiss the amended complaint and argued a dangerous condition did not exist.
The Kings County Supreme Court granted each of the defendants’ motions. On appeal, the Second Department held the lower court properly granted the defendants’ motions. The Court explained the defendants established that a dangerous condition did not exist and the plaintiff failed to raise a triable issue of fact. In addition, the Second Department determined the affidavit from the plaintiff’s safety expert was “speculative and insufficient to defeat summary judgment.”
9/16/2026 Bautista v. Spervalu, Inc. et al.
Appellate Division, Second Department
“Photographs of a condition, as well as video surveillance footage, may be used to show that a complained-of condition was open and obvious and not inherently dangerous.”
The plaintiff allegedly tripped and fell on a wooden pallet at the defendants’ store. The defendants moved for summary judgment to dismiss the amended complaint and argued the pallet was open and obvious and not inherently dangerous. The Orange County Supreme Court granted the defendants’ motion.
On appeal, the Second Department affirmed. The Court explained the defendants established with surveillance footage and testimony that the plaintiff was familiar with the aera, the lighting was good, and the corners of the pallet were marked with arrows. In opposition, the plaintiffs failed to raise an issue of fact and their expert’s opinions were speculative, conclusory, and not supported by the record.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hello readers,
Fall has arrived, bringing cooler mornings, changing leaves, and, of course, Bills football! With summer officially over and another winter approaching, I hope everyone enjoys their fall season before we are once again reaching for the snow shovels.
Go Bills!
9/16/2026 Alvarez v 100-10 67th Rd. Condominium
Appellate Division, Second Department
Failure to preserve surveillance footage warranted a spoliation sanction, but precluding defendants from presenting any evidence or defense on liability was too severe. Instead, an adverse inference charge was the appropriate remedy.
Plaintiff alleged that she slipped and fell on water at the bottom of a staircase in the defendants’ apartment building. The parties disputed whether the water resulted from a recurring leak or an emergent broken skylight, as well as whether the defendants had actual or constructive notice of the condition.
The building’s surveillance system retained approximately three weeks of footage before automatically overwriting it. Less than two weeks after the accident, plaintiff’s counsel served the defendants with a notice directing them to preserve any video footage depicting the incident. Although the building superintendent had recorded a one-minute-and-seven-second portion of the surveillance footage on his cell phone, that recording captured only the moments after plaintiff’s fall and did not depict the accident itself or the conditions preceding it. The remaining surveillance footage was not preserved.
Plaintiff moved pursuant to CPLR 3126 for spoliation sanctions. The Trial Court ultimately precluded the defendants from offering any testimony, evidence, or defense concerning their liability at trial. The Second Department agreed that a spoliation sanction was warranted. The defendants had an obligation to preserve the surveillance footage, were at least negligent in failing to do so, and the missing footage was relevant to Plaintiff’s claims. However, the Court held that completely precluding the defendants from defending themselves on liability was too severe a sanction.
Instead, the Second Department modified the order and directed that an adverse inference charge be given against the defendants at trial with respect to the missing surveillance footage. The Court reiterated that the appropriate sanction for spoliation depends upon factors including the spoliator’s knowledge and intent, any explanation for the loss of evidence, and the degree of prejudice suffered by the opposing party.
Therefore, as a helpful reminder, when an accident occurs on a property with surveillance cameras, potentially relevant footage should be preserved before it is overwritten, particularly once litigation is reasonably anticipated, although Alvarez confirms that any spoliation sanction should remain proportionate to the culpability involved and the resulting prejudice.
9/22/2026 Berardi v 900 Third Ave., L.P.
Appellate Division, First Department
An untimely summary judgment motion may still be considered where it is nearly identical to a timely motion already before the Court, and CPLR 3212(b) permits the Court to search the record and grant summary judgment to a nonmoving party.
Plaintiff, a carpenter working on an office renovation project, alleged that he was injured when he tripped over a torn and crumpled portion of tarp covering a corridor while pushing an A-frame cart loaded with glass windows.
Plaintiff sought summary judgment on his Labor Law § 241(6) claim through what was denominated a cross-motion. Although Plaintiff’s application was untimely, the First Department held that the Court could nevertheless consider it because the motion was nearly identical to the timely motion of Plaintiff’s employer, a third-party defendant, seeking dismissal of the same claim. The Court further noted that CPLR 3212(b) independently permits a court, in its discretion, to search the record and grant summary judgment to any party without the necessity of a separate cross-motion.
Berardi is a useful reminder that missing the summary judgment deadline does not necessarily prevent the granting of relief where the untimely application addresses issues already placed before the Court by a motion that was timely. Where the issues are sufficiently identical, the Court can consider the untimely motion and may also invoke its authority under CPLR 3212(b) to search the record and award summary judgment to a party that did not timely move for that relief.
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Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
As summer gives way to fall across Western New York, the changing season brings more than cooler temperatures and colorful foliage—it also brings a new set of premises liability considerations for school districts and municipalities. With students and families returning to school, increased pedestrian and bicycle traffic, changing weather conditions, and shorter daylight hours, this is an important time for property owners and public entities to take a fresh look at the safety of their premises.
This month we highlight practical considerations for school districts and municipalities and examine recent developments in premises liability law that may affect public entities across New York.
9/23/2026 Hoefler v. Shoreham-Wading River Central School District
Appellate Division, Second Department
A property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous.
This case involved a plaintiff who sustained personal injuries after striking her head on an air conditioning unit protruding from a window in a courtyard of a school. The Supreme Court, Suffolk County denied defendants’ motion for summary judgment dismissing plaintiff’s complaint.
On appeal, the Appellate Division, Second Department reversed the lower court’s ordering denying defendant’s motion for summary judgment and dismissed the complaint. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. The court held defendants demonstrated that the air conditioning protruding from the window was open and obvious and not inherently dangerous. In opposition, plaintiffs failed to raise a triable issue of fact.
9/16/2026 J.H. v. South Country Central School District
Appellate Division, Second Department
Schools are under a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. A school, however, is not an insurer of its students’ safety and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision.
This case involved an infant plaintiff who sustained a shoulder injury when trying to intercept a football that students were using during an ultimate frisbee gym class unit. The Supreme Court, Suffolk County granted defendant’s motion for summary judgment dismissing plaintiff’s complaint.
On appeal, the Appellate Division, Second Department affirmed the lower court’s decision. The mere happening of an accident, in and of itself, does not establish liability of a defendant. Moreover, where an accident occurs in so short a spam of time that even intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the defendant school district is warranted.
The court held that the deposition testimony of plaintiff’s gym teacher, the General Municipal Law § 50-h hearing testimony, and plaintiff’s deposition established that defendants provided adequate supervision and instruction during plaintiff’s gym class and the alleged inadequacy in the level of supervision was not the proximate cause of plaintiff’s injuries.
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