Ski Shop Prevails in Battle of Meteorologists (NY)

In Griguts v. Alpin Haus Ski Shop, Inc. plaintiff fractured her left wrist after she slipped and fell on snow and ice while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc. and sued claiming that the defendant did not maintain the premises in a reasonably safe condition.

The lower court granted defendant summary judgment on the “storm in progress doctrine.”  Although a landowner has a duty to maintain their premises in a reasonably safe condition, a landowner “has no duty to remedy a dangerous condition resulting from a storm while [that] storm is in progress and has a reasonable amount of time after the storm has ended to take corrective action.”

On appeal, the ski shop relied on the affidavit and report of its expert meteorologist with weather data that concluded the snow accumulation, “combined with very cold ground and air temperatures, caused very slippery, dangerous and icy surfaces to develop when compacted down.” The Appellate Division, Third Department, held that this evidence was sufficient to satisfy defendant’s initial burden of establishing that plaintiff sustained her injury as a result of a dangerous condition created by the ongoing winter storm.

Plaintiff had her own expert meteorologist who had testified he observed untreated patches of black ice on the sidewalk where plaintiff fell and that he himself had slipped; however, the expert acknowledged that he did not know when or how the ice patches had formed. He opined that the untreated patches of black ice observed by the witness were the result of several days of melting and refreezing.

Ultimately, the Court held plaintiff’s own deposition testimony established that she had visited the plaza in the week before her fall — and after the earlier snow event — and had not observed any snow or ice conditions on the sidewalk or in the parking lot and her fall was due to the recently fallen snow. Thus, plaintiff’s submissions were insufficient to defeat defendant’s motion for summary judgment dismissing the complaint.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono if you would like more information

Prior Accidents Admissible In School Gate Mishap (NY)

In Martin v Our Lady of Wisdom Regional Sch. New York’s  Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party’s negligence.

In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers.

At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff.

The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same.”

The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

“Child’s Play”: Second Department Upholds Defendants’ SJ in After School Accident (NY)

There is an old adage that, “hard cases make bad law.”  But, the reverse is also true, bad law makes hard cases.  On occasion the Court is swayed, or at least influenced, by tertiary, extra-legal considerations.  One of the more prevalent considerations is undue sympathy towards a child claimant.  Whereas the law recognizes certain legal distinctions in regards to a child’s course of conduct and prosecution of a lawsuit, the sympathy-factor of an infant plaintiff can color the determination of fact.

In Grigorian v. City of NY, NY Slip Op 04102, the Second Department affirmed the lower court’s granting of summary judgment in favor of defendants despite injuries sustained by an infant plaintiff.

The infant plaintiff Robert Grigorian slipped and fell off a snow mound.  On the day of the accident, the infant plaintiff was released from school at 3:00 P.M., and went home.  He returned to the school at 5:00 p.m. to pick up his younger sister from an after-school program.  The two began to walk home and has they were walking, they passed a snow mound, located between the infant plaintiff’s school and sister’s school on a street that was closed to traffic and used as a parking lot for teacher.  The sister climbed up the snow mound and the infant plaintiff climbed up the mound to retrieve her.  He slipped and fell in so doing, injuring himself.

The Appellate Division held that the City defendants established their entitlement to summary judgment, because the infant plaintiff and his sister passed out of the “orbit of the authority” of their respective schools at the time of the incident and the schools no longer had control over them.   Further, the area where the incident occurred was maintained in a reasonably safe condition and the snow mound did not constitute a dangerous condition.

In the case, the Court was able to separate liability and sympathy in its analysis as to issues of fact and theories of liability.  Plaintiff attorneys will often attempt to use the fact that the plaintiff is a child as leverage in negotiations, confounding liability and potential damages.  There are times, when such extra-legal considerations should be factored into the defense of the matter — making SJ motion practice critical.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY)

A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge  that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf.

In Turano v. Two Hillside Avenue Realty Corp., 2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building.  The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises.

One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion.

The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue.

This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be.  One assumes the defendant will opt to re-move, with the easement as an additional exhibit — unless the Court denies leave to re-move.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Put Me in Coach – But Only on a Regulation Field (NY)

In Legac v South Glens Falls Cent. Sch. Dist, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations.

In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed.

On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court’s focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk.

Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground.  Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk.

A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Gap In Treatment Not a Toll for Limitations Statute (NY)

The New York statute of limitations for a medical malpractice action is two and a half years. The time begins to accrue either from the date of the malpractice or from the time of last treatment.  So what if a plaintiff stops treating and then goes back to the doctor more than 2 ½ years later?

In Clifford v Kates  plaintiff commenced an action against Dr. Stephen Kates and the various medical institutions with which he was affiliated.  Plaintiff underwent a total hip replacement with Dr. Kates to treat her right hip pain in 2008.  After the surgery, plaintiff was experiencing pain, and followed-up with Dr. Kates for a period of approximately six months into January 2009.  She became disillusioned with the Dr. Kates and sought treatment with various other doctors.  She also consulted with an attorney who sent authorizations to the hospital and Dr. Kates for her medical records for litigation purposes.  In 2011, approximately two years after her last appointment with Dr. Kates, she returned to him once more.

Plaintiff then commenced an action against Dr. Kates in 2013 alleging medical malpractice. Defendants moved for summary judgment, claiming that the action did not fall within the statute of limitations, since it was brought more than 2 ½ half years after plaintiff’s post-surgical treatment with Dr. Kates in 2009.   Plaintiff argued that her visit in 2011 established that the physician-patient relationship was still in effect, and thus her treatment was ongoing until that date.

The Court ruled that the gap called into question the “continuous” nature of the relationship, and in particular held that the service of authorizations stopped the tolling of the statute. As such, the Court granted defendants’ motion for summary judgment.

Thanks to Christopher Gioia for his contribution.

For more information contact Denise Fontana Ricci at


Court Finds Water Unavoidable in Shower (NY)

The question of what is open and obvious would seem to be straight forward, but that does not always prevent a plaintiff from testing the waters, so to speak.  In Barron v Eastern Athletic, the plaintiff slipped when he entered a shower stall at his gym.  Specifically, the plaintiff testified that he fell after he stepped on water in the stall, which he had seen before entering the stall.  

 The lower court granted the gym’s summary judgment motion, and the Second Department affirmed.  The Appellate Division noted that property owners had a duty to maintain their property in a reasonably safe condition “in view of all the circumstances.”  The Court further concluded that the presence of water in a shower stall was not enough to find liability against the gym, especially when water on the stall floor was an obvious and unavoidable result of using the shower.  In other words, “there was no rational process by which a factfinder could base a finding in favor of plaintiff.” (citing Noboa-Jaquez v. Town Sports Int’l, 138 A.D.3d 493 (1st Dep’t   2016)).

 Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at



Better Customer Service Does Not Impose a Higher Duty of Care (NY)

To succeed in a negligence action, the plaintiff must show that the defendant owed a duty of care to prevent or minimize the risk of harm that allegedly injured plaintiff. Any defendant who does not legally owe plaintiff a duty of care would therefore be entitled to summary judgment. But what happens when the accident allegedly occurs because of defendant’s failure to adhere to its own internal operating guidelines?

In Ziman-Scheuer v Golden Touch Transp. of NY, Inc., the elderly plaintiff alleged that she was injured when she fell while exiting a bus operated by defendant. As is common in many industries, Golden Touch maintained a series of internal rules that its drivers were required to follow. One of those rules required drivers to personally assist passengers when exiting the bus if they had difficulty doing so. The driver did not assist plaintiff as she exited the bus, and she argued that by failing to do so he had breached the duty of care owed to her.

The First Department reversed the trial court’s denial of defendant’s motion for summary judgment. The court held that defendant had no duty to assist plaintiff as she exited the bus. As a matter of law, internal rules of conduct by a corporation that go beyond the ordinary standard of care cannot serve as the basis for imposing liability. Thus, the bus company’s policy of providing assistance to passengers could not create a duty a legal sense.

This decision clarifies that the standard of care cannot be influenced or expanded by creative arguments based upon a company’s operating procedures and policies.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at

Wedding Videographer Deemed Independent Contractor (NY)

In Weinfeld v HR Photography, Inc. a videographer knocked a wedding guest to the ground with his video equipment during a wedding reception, resulting in a lawsuit where the issue of the videographer’s employment status was at issue.

HR photography Inc. was hired to provide photography and video services at the wedding. In turn, HR Photography hired a videographer to handle the video aspect of the work.

The plaintiff, the injured wedding guest, filed suit in Nassau County Supreme Court against the individual videographer under a theory of negligence, and against the photography company claiming negligent hiring, negligent retention, and negligent supervision.

The Nassau County Supreme Court granted HR Photography’s motion for summary judgment, concluding that the videographer was an independent contractor and that there was no evidence that HR Photography was negligent in hiring, supervising, or retaining the videographer.

On appeal, the Appellate Division discussed the status of the law and the rule for liability based upon negligent hiring. The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts. The key consideration in determining whether an employer-employee relationship exists is whether the alleged employer exercises control over the means used to achieve the results.

Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule.

In this case, the Court looked to the deposition testimony, which showed this wedding was the first time HR Photography hired the videographer, did not provide the videographer with health insurance, did not provide the videographer with a W-2 form, and the videographer used his own equipment at the wedding. Further, the Court ruled that HR Photography demonstrated, prima facie, that it did not know and that it did not have reason to know of any propensity on the part of the videographer to engage in the conduct that allegedly caused the accident.   As such, the trial court’s decision was affirmed.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Lender Beware– Suit Against Motorcycle Owner Survives MSJ (NY)

The Tompkins County Supreme Court recently denied summary judgment to a motorcycle owner in Perkins v. Cnty of Tompkins, 2014-0037 (March 2017) because of an issue of fact as to the owner’s entrustment to the operator of her motorcycle.

Perkins arose in 2012 when a motorcycle owner lent her motorcycle to her 30 year old brother, an experienced rider.  She also spent 10 minutes showing her brother how to operate that specific motorcycle.  Shortly thereafter, the operator’s brother collided with another motorist.

The motorcycle operator brother brought suit against the other motorist claiming negligence.  The motorist then brought a third party action against the motorcycle owner, seeking contribution/indemnification claiming the operator negligently entrusted the motorcycle to her brother.

The motorcycle owner moved for summary judgment arguing that the motorist lacked standing for his claims since the operator is not a third party injured by the entrustment. The court found that “unquestionably the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments.”  Id.  But that the financial harm resulting from potential liability of a ‘concurrent tort-feasor’ is sufficient to give rise to a cause of action for indemnification.  Here, the operator had standing to bring a claim against the motorcycle owner.

The court found that although most cases of negligent entrustment involve an adult entrusting a dangerous instrumentality to a minor,  negligent entrustment can be based upon “the degree of knowledge the supplier had concerning the entrustee’s propensity to use the chattel in an improper fashion.” The Owner argued that the operator was not a minor and she was aware that the operator had previously owned and operated a motorcycle.  Unfortunately, she denied knowledge of knowing whether the operator had a license to operate a motorcycle or whether the operator had undergone any training or instruction on the motorcycle.  The court found that as a matter of law, it cannot be said that Owner exercised reasonable care in determining whether the operator possessed the requisite intelligence and training, finding at a minimum she should have inquired as to the status of his license.

The Court’s ruling demonstrates the extreme importance of taking precaution before lending your vehicle — especially a motorcycle.  Frankly, the ruling is not surprising, considering that motor vehicle owners are often kept in lawsuits under similar circumstances.  Thanks to Patrick Burns for his contribution to this suit.  Please email Brian Gibbons with any questions.