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.

Security Company Not Liable For New Year’s Eve Elevator Attack (NY)

Excessive drinking by “amateurs” on New Year’s Eve often leads to trouble, and intoxication appeared to be an issue in Coons v. Hotel Gansevoort Group, LLC and Security Services, Inc.,  which involved a plaintiff hotel patron who had travelled to New York City to attend a ritzy New Year’s Eve party at the penthouse bar at the Hotel Gansevoort. He was in the elevator on his way to the lobby at about 1 a.m. after ringing in the New Year, along with two men being escorted by a security guard hired by Security Services Inc. (“SSI”).  The two men appeared intoxicated and looked like they had been in a fight as there was blood on their clothes. As the elevator door opened in the lobby and plaintiff walked out, he was struck from behind by one of the men and fell to the ground.

Plaintiff sued the Hotel Gansevoort, SSI and the security guard individually. SSI moved for summary judgment, arguing they did not owe plaintiff a duty of care as he was a stranger to their contract with the hotel to provide security. The trial court denied the motion, holding that the hotel was aware of the patrons’ dangerous propensities since they had been in a fight and were being escorted off the premises. The court also found that the danger of placing the men in an elevator cab with other hotel guests should have been obvious to security personnel, and therefore SSI could be found to have created or exacerbated a dangerous condition, giving rise to a tort duty of care.

SSI appealed the decision, and the First Department found that SSI, an independent security contractor for the defendant hotel, did not owe plaintiff a duty of care. The Court held that the oral contract for security services did not extend to plaintiff. Because SSI owed no duty to the plaintiff, SSI was entitled to summary judgment and the First Department reversed the lower court’s decision and dismissed the case against SSI.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono if you would like more information.

NY High Court Takes Common Sense Approach to Additional Insured Coverage

For years parties have disputed just how far “caused in whole or in part” stretches in the context of coverage afforded an additional insured for the acts or omissions of a named insured. New York’s highest court settled the dispute and decreed “caused” refers to proximate, rather than the impermissibly broad “but for,” causation.

The Court of Appeals decided Burlington Ins. Co. v. NYC Tr. Auth., on June 6, 2017, and was presented with a familiar fact pattern in the world of coverage:  a coverage dispute over the scope of additional insured coverage afforded in the scope of construction project.

Burlington insured Breaking Solutions, Inc. (“BSI”), which supplied equipment and personnel for the project. Plaintiff, a Transit Authority employee, fell from scaffolding after BSI equipment came into contact with a live electrical cable that was under concrete.  Burlington initially recognized a duty to defend the Transit Authority, subject to a reservation of rights, based on the Transit Authority’s status as an additional insured.  Burlington reserved its right to deny coverage based on the limitations of the pertinent additional insured endorsements, which afforded coverage:

…only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury cause, in whole or in part, by:

  1. Your acts or omissions; or
  2. The acts or omissions of those acting on your behalf.

Subsequent discovery revealed internal Transit Authority memos admitting they were solely at fault, and BSI neither operated the machinery improperly, nor knew of the existence of the cable. Based on these admissions, Burlington disclaimed coverage.

The Court of Appeals held the plain language of the endorsement, including the reference to “liability,” calls for proximate causation. Significantly, the Court rejected the argument that “caused by” is equivalent to “arising out of,” the latter of which signals but for causation.  In the end, the Transit Authority’s sole negligence was not covered under the Burlington policy’s additional insured endorsement.

The Court’s plain language interpretation reflects the common sense recognition that additional insured endorsements are meant to apportion loss to the party with the most control over the risk. In the real world construction context, the endorsement is meant to create a coverage chain in parallel to the contractual chain of indemnification running from the bottom rung subcontractor to the property owner at the top.  Sole acts of negligence of entities higher up the chain always break the liability and indemnification chain in New York, and coverage is no different.

Thanks to Chris Soverow for his contribution to this post.



Terms Used in the Complaint Determine Defense Coverage to the Insured

In Hillcrest Coatings Inc v Colony Ins Co, the Appellative Division recently affirmed the trial court’s order requiring Colony Insurance provide a defense to its insured in an underlying environmental tort action despite the CGL policy’s hazardous materials exclusion.

The allegations in the underlying environmental action stated that Hillcrest Coatings operated their glass and recycling facility in a negligent manner, causing hazardous materials to contaminate the surrounding areas.  The underlying complaint also alleged that Hillcrest’s negligent actions “caused a malodorous condition to be created in the surrounding neighborhood.”

In disclaiming coverage to Hillcrest, Colony relied upon an exclusion that excepts from coverage all bodily injury and property damage resulting from “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.”  ‘Hazardous materials’ was defined by the policy as “pollutants” including any “solid, liquid, gaseous or thermal irritant or contaminant…” The court found that ‘Malodorous’ is not necessarily ‘Hazardous,’ and Colony owed a duty to defend its insured.

The Hillcrest decision serves to underscore the breadth courts attribute to the insurer’s duty to defend.  The Court stated that Colony had failed to meet the high burden of establishing that the hazardous materials exclusion precluded coverage in this instance because, despite the fact that the underlying complaint specifically alleged that the “malodorous condition” resulted from hazardous materials, “foul odors are not always caused by the discharge of hazardous materials.”  Thus, because “malodorous” may not be hazardous, Colony was ordered to provide a defense and to reimburse its insured for costs expended.

This decision is a reminder that in terms of coverage, courts can find even an unlikely possibility of coverage to be “reasonable” when assessing the insurer’s duty to defend.

Thanks to Vivian Turetsky for her contribution to this post.

Property Damage Claim Goes Up In Smoke (NY)

The question of whether the contents of a disclaimer letter could limit an insurer in a later denial of a property damage claim was addressed recently by the Second Department in Swanson v. Allstate.  Therein, the court determined that an insurer does not waive its right to rely on an exclusion in the policy if that exclusion was not cited in the initial disclaimer letter.

 Swanson owned commercial property that was vacant for six months before a fire damaged the building.  Swanson made a claim for loss with its carrier, Allstate.  Allstate’s initial disclaimer letter failed cite to the policy’s “vandalism” exclusion that excluded fire damages if caused by vandalism in a building left vacate for more than 90 consecutive days.  Based upon the town fire investigator’s report, the fire was intentionally set, and the owner had admitted to the vacancy in excess of 90 days. 

A lower court denied Allstate’s summary judgment motion finding that the exclusion was waived under Insurance Law 3420(d) because it was not mentioned in the disclaimer letter.   However, the Second Department reversed finding that Section 3420(d) only applied to claims involving death and bodily injury, and hence, not applicable to a pure property damage claim.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at


WCM Wins Dismissal Involving Overseas Trip Sponsored By Charitable/Religious Organization (NY)

Senior Partner Paul Clark and Associate Peter Luccarelli III successfully convinced the Appellate Division, First Department to reverse a New York County trial court’s decision denying our client’s motion for summary judgment in an alleged sexual assault case. Lerner involved a claim of a 19 year old participant in an overseas trip by our client, a charitable and religious organization. At the end of the day’s sponsored activities, plaintiff and several other trip participants, all of whom were of legal drinking age, retired to the hotel bar. At the hotel bar, plaintiff met, and later left with other male hotel guests who were not members of the trip. Hotel personnel later found plaintiff disoriented in a hallway, and the investigating officers determined that she may have been sexually assaulted and possibly drugged by her assailants. Plaintiff filed suit against our client for allegedly failing to properly supervise her and prevent her assault at the Hotel after all sponsored activities were over.

We moved for summary judgment on the basis that there was no duty to supervise an adult who drank in a hotel bar not owned, maintained, or controlled by our client. We further argued that any duty of care owed by our client to plaintiff was severed by the acts of the criminal third-parties who were unknown to our client. The trial court initially denied our motion on the basis that our client failed to prevent plaintiff from drinking excessively. On appeal, the First Department unanimously reversed the trial court order and granted our motion for summary judgment. The First Department held that even assuming a duty to prevent an adult plaintiff from drinking excessively, there was nothing our client could have done to prevent plaintiff’s alleged assailants from perpetrating an unforeseeable—and unfortunate—criminal act against her.

If you have any questions about this post, please email Paul at

Willful Disregard of So-Ordered Stipulation Results In Preclusion (NY)

The First Department recently struck the answers of the City of New York and Metropolitan Transportation Authority for ignoring multiple court orders and then producing a witness who was unable to answer questions at a deposition in McHugh v. City of New York.  The Court established defendants as automatically liable, with damages being the only remaining issue to be established.

McHugh arose in 2012, when plaintiff was injured while constructing the second Avenue Subway in Manhattan.  Plaintiff brought suit in 2014 against both the City and the MTA.  During the course of litigation, the defendants ignored two so-ordered-stipulations to produce a witness “with knowledge,”  so plaintiff moved to strike defendants’ answer.  After the Court order, defendants produced an employee who was “admittedly unprepared,” and could not answer any questions regarding the City and the MTA, or ownership of the tunnel and the ground on which it was built.

Defendants refused plaintiff’s demand to produce an additional witness.  In response, plaintiffs again moved to strike defendant’s answer. Although the lower Court denied plaintiff’s motion, on appeal, the appellate Court found that the trial court improvidently exercised its discretion in failing to strike defendants’ answers. The Court found that defendants’ noncompliance constituted “willfull and contumacious behavior, warranting the striking of their answer.”  The Court highlighted the fact that not only did the defendants fail to provide a timely response but also failed to address plaintiff’s requests meaningfully or with a good-faith effort.

As it goes without saying, the Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition and sufficiently preparing that witness but of paying close attention to the course of litigation and being “reasonable” with the opposing counsel’s demands.  Playing “hardball” too often may have unintended and sometimes harsh consequences.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

“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.