Jeffery Samel & Partners

Retail

JEFFREY SAMEL & PARTNERS represents a wide variety of retail establishments, including hotels, restaurants, drug stores, and other businesses. We defend such clients against claims of slip and fall incidents on debris, defective sidewalks, snow and ice, false arrest and false imprisonment claims, product liability, accidents involving merchandise delivery, and employee or third-party assault cases.

Summary Judgment & Dispositive Motions

Crook v. Wendy’s Int’l. [Supreme Suffolk] Plaintiff, an elderly woman, claimed she slipped and fell on the floor of our client’s restaurant due to spilled liquid. Plaintiff testified that she had observed a restaurant employee mopping the floor shortly before her accident. As a result of the occurrence, she had to undergo a total hip replacement, and was eventually forced to live in a nursing home. We moved for summary judgment, based upon plaintiff's inability to establish actual or constructive notice of the spilled liquid. The court agreed with our position that plaintiff's claims were purely speculative, and that there was no evidence establishing that the restaurant created the condition or had actual or constructive notice of it. (Judah Z. Cohen)

Hyman v. Baldwin Bowling Center, Inc. [Supreme Kings] Plaintiff claimed that he was seriously injured when he fell into an open stairway located immediately outside our client’s bowling alley. He presented evidence from an expert engineer, alleging that the steps failed to comply with the local building code or with ANSII standards. We moved for summary judgment on behalf of our client, producing documentary proof that the building and the subject staircase were constructed in 1938, some 35 years prior to the building code which plaintiff’s expert claimed had been violated, and that such staircase was built in accordance with the standards in effect at that time. The lower court agreed, dismissing the complaint in its entirety. Plaintiff then filed a Notice of Appeal, and his first motion to enlarge the time to perfect such appeal was granted without opposition. However, when plaintiff allowed the new deadline to pass, and moved for a second enlargement, we opposed. The Appellate Division agreed with our position that there was no reasonable excuse for the plaintiff’s delay in prosecuting her appeal, and dismissed such appeal. (Judah Z. Cohen/Melissa Johnson)

Tocco v. Rite Aid [Supreme Nassau] Plaintiff tripped and fell over a merchandise bin that had been left in the aisle of our client’s drug store. We moved for summary judgment, arguing that the brightly colored bin was both open and obvious and not inherently dangerous. Plaintiff alleged that there was a question of fact as to whether he tripped over one bin or three bins. The court agreed with the position we asserted in our Reply, holding that it was irrelevant whether plaintiff tripped over one bin or three, since the condition was open and obvious and not inherently dangerous in either instance. (Judah Z. Cohen)

Ilyas v. Hilt-Hunt, LLC & Hilton Huntington [Supreme Queens] Plaintiff claimed that he slipped and fell at night in the parking lot of the Huntington Hilton due to inoperative lighting. We argued on behalf of the hotel operators that there was no proof of notice of the allegedly insufficient lighting conditions. We produced maintenance records for six months prior to the date of accident, which did not reveal any complaints concerning inadequate lighting conditions in the parking lot. The court, in dismissing the complaint upon our motion for summary judgment, agreed that proof of notice was insufficient and that plaintiff had also failed to establish that inadequate lighting was the proximate cause of his accident. (David Samel)

Vazquez v. Genovese Drug Stores [Supreme Bronx] Plaintiff claimed to have tripped and fallen at the entrance of our client’s drug store, and that she realized a weather mat was askew immediately after her fall. Following the completion of pre-trial discovery, we moved for summary judgment, arguing that plaintiff’s claim that she tripped and fell as a result of the mat being askew was speculative, since the condition could have arisen as a result of the fall. We also argued that she could not prove actual or constructive notice of any defective condition of the weather mat prior to the occurrence. The court agreed, and dismissed the complaint against our client. (David Samel)

Dawson v. Rite Aid [Supreme Kings] Plaintiff was wheelchair-bound, due to pre-existing diabetes and arthritis. She was in our client’s drug store, utilizing a motorized wheelchair, when she claims that she fractured her ankle while trying to navigate around boxes of merchandise that had been left unattended in the store aisles. The court granted our summary judgment motion, dismissing the complaint against our client, agreeing with our argument that the merchandise boxes were open and obvious and that a safe, alternative path in the aisle was present. The court also rejected plaintiff’s claim that our client could be held liable for allegedly violating the Americans with Disabilities Act (ADA), by failing to provide a path wide enough for her wheelchair. (Judah Z. Cohen)

Muhammad v. Rite Aid [Supreme Queens] Plaintiff alleged to have been injured because of a trip and fall incident on a public sidewalk abutting our client’s drug store in Queens. He testified at a deposition that he stubbed his foot on an elevation between two sidewalk flags that he estimated was approximately two inches. However, his scene photographs showed no significant difference in elevation between the adjacent sidewalk slabs. We moved for summary judgment, asking the court to consider only the photographs that showed no height differential, and reject the plaintiff’s self-serving testimony to the contrary. The court agreed, ruling that the plaintiff’s photographs did not depict an actionable defect of the sidewalk, and that the plaintiff’s testimony was insufficient to raise a triable issue of fact. (Judah Z. Cohen)