|
NOTE FROM THE EDITOR:
For the past year, our Insurance Coverage, Litigation Defense and New York State Labor Law teams have presented monthly educational webinars for our clients and newsletter subscribers on a wide range of timely topics.
Next up, our Medical Malpractice Team presents “Diagnosing the Difference: Nursing Home Negligence vs. Medical Malpractice Cases.”
While nursing home negligence and medical malpractice cases may involve similar underlying facts, litigating these matters requires an understanding of important distinctions in standards of care, documentation, discovery, and procedural requirements. Join Hurwitz Fine Medical Malpractice attorneys Nicole Schreib, Gabe Markle, and Noah Neale for a practical webinar examining the key differences between nursing home negligence and medical malpractice claims. The discussion will also explore how the distinctions between Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs) can impact litigation strategy and case management.
Attendees will gain practical insight into navigating these claims, identifying important procedural considerations, and developing effective defense strategies. For more information and to register, click here.
Next, our New England Insurance Coverage attorneys Barb O’Donnell and Iryna Dore present “Claims File Discovery: Attorney Client and Work Product Privilege Protections.” This webinar examines available tools to limit the scope of claims file discovery.
Drawing on instructive court decisions and real-world scenarios, this session will explore the line-drawing factors courts apply to distinguish between discoverable materials generated in the ordinary course of an insurer's claims handling responsibilities and materials protected from disclosure by the work product doctrine and/or attorney client privilege. Barbara and Iryna will discuss strategies to shield claims file materials prepared in anticipation of litigation and preserve applicable privileges, as well as the potential waiver consequences of delegating claim investigation functions to counsel.
The program will also examine emerging privilege concerns surrounding the use of artificial intelligence tools, highlighting lessons from early court decisions concerning discovery disputes over AI-generated content prepared for litigation.
Attendees will gain practical guidance on safeguarding sensitive claims file information, navigating discovery disputes, and understanding how evolving technology may impact privilege protections. For more information and to register, click here.
And in case you missed October’s “Estate Planning Strategies for Transferring Real Property” from our Trusts & Estates team, Melissa Pezzino and Lauren Meksraitis-Elliott prepared a “Key Takeaways” legal alert on the differences between Life Estate deeds, Transfer on Death deeds, and trusts, as well as important considerations involving Medicaid eligibility, probate avoidance, and property ownership across multiple states.
If you have any questions on any of our webinars or would like to propose a topic, please let me know!
Happy Halloween!
-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]
Two recent decisions from the Eastern District of New York highlight the importance of evidence in defending premises liability claims, from preserving incident materials to obtaining medical records relevant to liability and damages. In De Merino v. Best Buy Stores, L.P., the court examined negligent preservation failures while emphasizing the limits on sanctions and the need to consider less severe remedies. In Persaud v. Costco Wholesale Corp., the court compelled production of eye-care records after finding that the plaintiff’s allegations and damages claims placed her eyesight in controversy. Together, these decisions illustrate how preservation practices and targeted discovery can shape the evidence available to litigate a claim
10/2/2026 De Merino v. Best Buy Stores, L.P.
United States District Court, Eastern District of New York
Court held that Best Buy negligently failed to preserve a video and incident report concerning the plaintiff’s accident but declined to impose the severe sanctions requested by plaintiff.
The plaintiff alleged that multiple televisions fell on her at a Best Buy store. During discovery, she learned that the store manager had prepared an incident report and saved a video, despite Best Buy’s earlier representations that neither existed. The video was mailed to a third-party administrator but apparently never arrived, and the report could not be located.
Regarding the lost video, applying Federal Rule of Civil Procedure 37(e), the court found that Best Buy negligently failed to preserve the video by mailing it without retaining a copy or tracking delivery. Its loss prejudiced the plaintiff because it depicted the accident and could have supported her account. However, absent proof that Best Buy intended to deprive her of the evidence, striking its answer or imposing an adverse inference was unwarranted. The court also rejected blanket preclusion of Best Buy’s liability evidence as too severe, while allowing further briefing on lesser remedies. The court evaluated the missing physical report under its inherent authority. It found that Best Buy negligently failed to preserve the report and that eyewitness accounts supported an inference that it would have been favorable to the plaintiff. Nevertheless, the requested sanctions were unwarranted because the report likely repeated those accounts and the witnesses remained available to testify.
The court denied the motion but permitted the plaintiff to renew within fourteen days to seek less severe remedies tailored to the resulting prejudice.
10/21/2026 Persaud v. Costco Wholesale Corp.
United States District Court, Eastern District of New York
Court granted Costco’s motion to compel the plaintiff’s pre- and post-accident eye-care records in slip and fall case where the visibility of the area where plaintiff fell was an issue.
The plaintiff alleged that she slipped on juice at Costco, injuring her lumbar spine, left knee, and left shoulder. After disclosed medical information revealed treatment for eye conditions, Costco sought her pre- and post-accident eye-care records. The court explained that placing a medical condition in controversy waives the physician-patient privilege as to that condition, but does not permit unrestricted medical discovery. The requesting party must still establish relevance and proportionality under Federal Rule of Civil Procedure 26(b)(1). The court found that the plaintiff placed her eyesight in controversy because her allegations implied that the liquid could not be seen, while her medical information showed treatment for nearsightedness. The records were relevant to whether her vision contributed to the accident and whether an eye condition caused or contributed to her claimed damages, including loss of enjoyment of life. Finding the request relevant and proportional, the court granted Costco’s motion to compel the records.
|
|
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 case is a reminder on what is needed to succeed on a motion for summary judgment where a transient condition, in this case black ice, is involved.
10/26/2026 Brown v Parkchester Preserv. Mgmt.
Appellate Division, First Department
To succeed on a motion for summary judgment, Defendant must demonstrate it wasn’t on notice of the alleged dangerous condition; when the last time prior to the accident the loss location was inspection; snow removal efforts, if any, did not exacerbate the alleged dangerous condition.
Plaintiff was allegedly injured when she slipped and fell on black ice that was the result of a freezing-rain storm. In support of its motion for summary judgment, Defendant attached certified weather records and an affidavit from a meteorologist stating there was a storm in progress at the time of Plaintiff’s accident.
The Trial Court denied Defendant’s motion; the Appellate Division affirmed.
The First Department found several reasons for denying Defendant’s motion:
-
Plaintiff’s testimony that the freezing rain stopped prior to her fall, and a video of the accident that did not show any precipitation despite pedestrians holding umbrellas and wearing hoods, was sufficient to defeat Defendant’s motion;
-
The Trial Court properly declined to disregard Plaintiff’s errata sheet that changed her initial testimony from it was raining to it wasn’t raining as questions regarding credibility is left to the trier of fact;
-
The records present triable issues of fact as to whether the black ice existed prior to the storm, and whether Defendant had constructive notice of same and Defendant failed to submit evidence establishing when the walkway was inspected last prior to the subject accident; and,
-
The property manager’s testimony did not conclusively establish that the Defendant’s snow and ice removal work did not exacerbate the alleged icy condition.
|
|
|
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 always one of my favorite times of year! This month, I had the opportunity to visit Lake Placid, NY, to enjoy the spectacular fall foliage. There is something special about the vibrant reds, oranges, and yellows set against the Adirondack Mountains that makes this season so enjoyable!
This month’s article examines two recent decisions from the First Department addressing causes of action against out-of-possession landlords and the circumstances under which liability may attach. So, grab a cup of coffee or cider, enjoy the beauty of the season, and let’s take a closer look at what these decisions have to say.
10/13/2026 Cutter v. Bayard’s Ale House
Appellate Division, First Department
“While an out-of-possession landlord is generally not liable for negligence with respect to the condition of the property after transfer of possession and control to a tenant, one exception to the general rule arises when the landlord has a right of reentry under the lease to make needed repairs and liability is based upon the breach of a specific statutory design safety provision.”
The plaintiff was injured after allegedly falling down basement stairs at the defendant Bayard's Ale House. The basement was accessed through doors that laid flush with the floor when closed. When opened, the doors stood upright and narrowed the passageway. The plaintiff’s incident allegedly occurred when a Bayard's employee left one of the doors open while going downstairs.
The Bayard defendant leased the premises from out-of-possession landlord, defendant Nevins Realty (“landlord). The lease agreement gave the landlord defendant the requisite right of reentry to make “repairs, replacements and improvements for the purpose of complying with laws, regulations and other directions of governmental authorities.” The landlord defendant made a motion for summary judgment to dismiss the complaint as against it and on its cross-claim for contractual indemnification against defendant Bayard. The New York County Supreme Court denied the landlord defendant’s motion.
On appeal, the First Department unanimously affirmed. The Court held the landlord defendant failed to establish entitlement to summary judgment because it did not adequately address the building-code and safety-code violations alleged by the plaintiff or explain why those alleged violations were not a proximate cause of the plaintiff’s accident. The First Department rejected the landlord defendant’s argument that the employee's conduct was the sole cause of the accident. The Court emphasized that an accident may have more than one proximate cause. The plaintiff's expert raised factual issues regarding alleged structural and design defects in the stairway configuration and their compliance with the New York City Building Code.
With regard to contractual indemnification, the First Department determined the lower court properly denied summary judgment on the cross-claim even though the request for the relief was unopposed. The Court explained “the lease for the premises requires Bayard's to indemnify [the landlord] only upon a showing that Bayard's breached a covenant or condition of the lease, or a showing of ‘carelessness, negligence, or improper conduct’ by Bayard's.” The defendant Bayard’s duty to indemnify the landlord was not triggered as liability as against Bayard had not yet been established.
10/20/2026 Mella v. Russian Samovar, Inc.
Appellate Division, First Department
An out-of-possession landlord will not be liable simply because an accident occurred on the premises; the plaintiff must connect the accident to a defect the landlord was actually responsible for under the lease.
The plaintiff commenced an action against the defendant restaurant Russian Samovar, Inc. after she allegedly fell and sustained injuries. The defendant restaurant commenced a third-party action as against the landlord, Alvin Nederlander Associates, Inc. and the plaintiff amended the complaint to add the landlord. The primary theory advanced against the landlord was that inadequate lighting in the restaurant contributed to the accident. The landlord defendant moved for summary judgment on its cross claim for contractual indemnification against the restaurant and dismissal of the third-party complaint and amended complaint. The New York Supreme Court granted the landlord’s motion.
On appeal, the First Department unanimously affirmed. The Court held that the landlord, as an out-of-possession landlord, was not responsible for the alleged low lighting conditions. Under the lease, the landlord was obligated only to make structural repairs to the premises. The evidence demonstrated that the lighting level was controlled by restaurant employees and was not attributable to a failure by the landlord to maintain the electrical system. The Court thus determined, the lighting condition was not a structural defect for which the landlord could be held responsible. The “plaintiff's vague allegations in the bill of particulars and expert affidavit listing defects other than the low lighting were insufficient to raise a triable issue of fact as to the proximate cause of the accident.” The Court further held the landlord was entitled to contractual indemnification from the restaurant per the lease as there were no questions of fact as to the landlord’s negligence.
|
|
Municipal Matters & Schoolyard Stakes
By: James J. Crowley [email protected]
Hello Readers,
10/21/2026 Young v. City of New York
Appellate Division, Second Department
Administrative Code of the City of New York § 7-201(c) limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified existed at a specified location.
This case involved a plaintiff who was walking along the Riegelmann Boardwalk in Brooklyn when his foot allegedly became stuck in a damaged or defective board which caused him to fall and sustain injuries. The Supreme Court, Kings County granted defendants motion for summary judgment dismissing plaintiff’s complaint on the grounds that the defendant lacked prior written notice of the defect.
On appeal, the Appellate Division, Second Department reversed the lower court’s order granting defendant’s motion for summary judgment. Where a locality has enacted a prior notification law and is alleged to be liable for personal injuries sustained as a result of the defective condition, the locality establishes a defense as a matter of law by demonstrating that it did not receive prior written notice of the defective condition.
The Court held that the defendant failed to establish that it lacked prior written notice of the alleged defect. In support of their motion defendants submitted an affidavit from the Legal Liaison for the Parks Department, indicating they conducted a search of the relevant records related to the subject boardwalk over a period of two years prior to the accident. However, the affidavit failed to assert that the search revealed no prior written notice of the alleged defect on the boardwalk. Additionally, the defendant failed to demonstrate that all relevant records had been searched, as the affidavit did not include copies of the records purportedly searched.
10/22/2026 Maldonado v. City of New York
Appellate Division, First Department
A municipal defendant may move for summary judgment if they can show (1) they had no prior written notice of the defect or (2) that they did not create the alleged defective condition.
This case involved a plaintiff who tripped and fell on a two or three inch high bump in an asphalt pathway inside Van Cortland Park. The Supreme Court, Bronx County granted the defendants motion for summary judgment dismissing the plaintiff’s complaint.
On appeal, the Appellate Division, First Department unanimously affirmed the lower court’s order. The plaintiff failed to raise a triable issue of fact concerning whether the defendant had prior written notice of the defect or that its employees created an immediate dangerous condition by improperly cold patching the pathway before the accident. The Court held that the defendant cold-patching the walkway prior to the fall did not by itself provide a basis for an inference that the repair immediately resulted in a hazardous condition. Additionally, thirteen photographs taken by the defendant’s employees labeled “asphalt cracked, uplifted or deteriorated at [the park] were insufficient to prove prior written notice of the defective condition.
|
|
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.
|
|
|
|
|
