EP06 S02: What Is Premises Liability?

Today we discuss about premises liability, when a New York City premises liability attorney gets a case, what type of investigation does he or she do? What is the investigation that a really good trip and fall, slip and fall lawyer is going to do once he or she gets that premises case?

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 Full Transcript:

Welcome to Trial Stories an informative discussion of civil justice with a focus on the human story. I’m your host. Arkady Frekhtman a New York City trial lawyer passionate about helping serious injury victims and their families.

So today is Friday the 13th, in 2020. And our law firm is building out a new CRM and a new relationship management project for all our clients. And so we completed some educational videos about car accidents, and today we switched gears a little bit and we started to build out the same thing, but for premises liability.

So a lot of people ask like, “What is premises liability?” And basically, it just means that you’re on the premises and you get injured. So it could be a slip and fall, a trip and fall, an apartment building accident, a ceiling collapse, slip and fall on an icy sidewalk. Basically, any type of accident or injury that happens in a building, could be a single-family house as well.

So today I wanted to talk about something that’s very interesting, could be interesting for other lawyers. It could be interesting for clients as well. And basically, it deals with New York City and it answers the question of, when a New York City premises liability attorney gets a case, what type of investigation does he or she do? What is the investigation that a really good trip and fall, slip and fall lawyer is going to do once he or she gets that premises case?

So here’s an example of what we do in our firm. For example, if somebody contacts us and says, “I fell inside my apartment building, I had a trip and fall on the stairs. The stair was sagging. The stair was wet. I think that the edge of the step was miss leveled. It was like a concave step,” any kind of defect. What we do is we, obviously we go to the scene, we take photographs, we take measurements. When we take measurements, we take one close up and one a little bit further away to give context.

If necessary, if we think it’s warranted, we hire an expert. So there are different kinds of experts you could hire in premises cases. The most obvious one would be like an engineer or a safety expert. They would go in and they would do their own examination. And then that expert would give you the building code violations. And if the case goes to trial, the expert could testify in court and he could talk about, or she could talk about the ASTM standards or the A-N-S-I, ANSI standards that were violated and talk about these fun expert topics. As the coefficient of friction, what’s slippery and what’s not, and things like that.

So the other thing we do is we interview witnesses. Sometimes there’s a witness who saw the accident, and other times there’s a witness that didn’t see the actual fall or the traumatic event itself, but could testify about the notice. And notice just basically answers the question of, did anyone know about this? Did the defendant know about this defective condition? If we can prove the defendant knew about the defective condition, now we’re going to be able to prove the defendant was at fault and we’re going to establish what’s known as liability. And that’s an important aspect of these cases.

So, but when we get into the real investigation, a lot of the investigation could be done online and you can do it quickly with your computer. And that’s what I wanted to show you right now. So for example, let’s say somebody got into a slip and fall on a staircase inside their apartment building while walking up to the second floor, or while walking to the elevator, those three or four steps leading to the elevator in most New York City, Brooklyn apartment buildings.

So the first thing you would do is you could check something known as ACRIS, A-C-R-I-S. It’s free, you could just type in ACRIS into Google. And when you use ACRIS, you put in the address, it gives you the block and lot, and you search. And here’s an example of a case we did for one of our clients. You could see here it tells you what the results are. So there could be like the assignment of leases, agreements, mortgages, but usually what you need as an attorney is the deed, because the deed will tell you who the owner is, and you’d want to sue the owner, because that would be a defendant in the lawsuit. And here you could see the most recent deed was from 2013, and we just settled this case in 2020. So this would be the most recent deed. And it even tells you the purchase price that they purchased the property for, 6.5 million and tells you who the owner is.

You could actually pull up the deed just by clicking the button and you could pull up the deed itself. And then you could actually read the deed. You could zoom in, you could print it out, whatever you need to do, it’s pretty cool. And you have the owner information. And then you’d also want to find out who the management is. Some buildings have management, and then you could sue the management as well, because oftentimes the owner is just the owner of the property, but the manager is the one who actually controls, hires the super and manages the safety aspects of the property.

The other thing you can do is you can go to the New York City Department of Buildings, which you see right here. You type in the address and it pulls up a lot of information here, like complaints, violations. Like this building actually had a violation, a failure to certify a correction of a class one violation. So pretty serious violation on the property. If you click on complaints, you could see the types of complaints that are in the building. For example, this one has a lot about boilers. Now, our case did not involve boilers, so that would be inapplicable.

But very often I do find, like my case is about something and that particular issue that my case is about is also in the violations. And then it’s obviously relevant and it could be used at trial. It could be very powerful. So this is the Department of Buildings and yeah, you could even see like OATH, O-A-T-H, that’s like trials that they have, little hearing trials. You see, they’ve had trials and they’ve had violations for this boiler. But despite that, they haven’t, even though there was an adjudication and they were told by the judge, “Hey, you got to fix this boiler,” or whatever it was, they didn’t do it. So it continued, that’s why they have the red marking, and then they have some other information here.

The other thing you can do is HPD searches. So HPD searches are basically the Housing and Preservation Development, which is an organization in the City of New York. And it’ll tell you about different investigations, different inspections that they did and different findings. So here you could see there are violations of the administrative code. Things like specifics, like apartment B11, second story. The second department from the south at the west had an infestation consisting of mice. So if your case involves mice or something, you could use this. Obviously, if your case is about something else, then it wouldn’t be applicable, but you just have to kind of go through this and read through it. You see it. Sometimes it gets lengthy. They have all the violations for the building, and they also have violations from the prior year.

You could also just paste it into a document and then do a find and replace, so you don’t have to read every violation. Because it could get kind of tedious, but that’s what we do. And very often we find the violation for that apartment. Like for example, if our client complained of a ceiling collapse and we’ll see that a year before there was a violation for a leaking ceiling in their apartment, HPD came out. And then if you find it here online, you could do a FOIL, which is a Freedom of Information Law request, it’s free. And they’ll mail you, or they’ll email you all the information. About the inspection, whatever information this department, the Housing and Preservation Department has. So this is a very interesting tool as well.

So the next one is even cooler. This one is called DAP. It’s like a portal displacement website, it’s also free. You go to this link and we’ll include all the links on this trial stories podcast as well as on the video, so you could have access to the links. And you type in the address, and then it’ll actually tell you a lot of information. It’ll tell you all the sales and financing, as you could see here on the top left corner. It’ll give you a photo of the property and a street view, a map of the property in Google Maps. It’ll give you all the deed information, the mortgages, you can export it to Excel or Google Docs.

You can have all this information right away. It’ll tell you if the Marshall has had to evict people, all the HPD complaints and problems, the HPD violations, the Department of Building complaints, violations, ECB, environmental violations, permits for construction, litigations against the landlord.

It’ll actually tell you if anybody has sued the landlord before, and you could see here that they have been sued for heat and hot water, which is a landlord-tenant issue. So if your case involves heat or hot water, it could be relevant. Another way to search this would be to go to E-Law, E-Law, and then type in whether that landlord was sued for personal injury. And you could also go to E-Courts and that’ll tell you that information. So there’s a lot of information here on this placement.

The next thing you could do is there’s a site called Who Owns What in New York City. And so you type in the same address. It’ll tell you who owns the property, the LLC. And it’ll also tell you the people involved like here it’s a Mr. DiMaggio. I don’t know if that’s Joe DiMaggio, the baseball player’s relative. But it tells you who the owner is. It tells you when it was last sold. And see, on the map here it’s telling you all the properties that this particular individual owns. So he owns a bunch of properties throughout Brooklyn. And you can go through the map. I don’t think he owns anywhere else. It looks like just Brooklyn, but a lot in Brooklyn, 22 I believe properties.

And then here on the right, you could see, you could view the documents on ACRIS, which will give you all the information about deeds and mortgages. You can get that HPD information, the Department of Building profile, the Department of Finance, all the tax bills. And then you can go to that DAP portal that we just looked at. So this site is really cool because actually, you could do everything, pretty much everything from this one site, just by this Who Owns What site. It gives you an overview. It gives you a timeline where you could see the history of the complaints here, how the complaint’s been going.

It gives you a portfolio of all their properties. When you click on the portfolio, all their properties, and you can get links to their deeds. You can get a lot of information here. It’s pretty cool. And then you can get a summary here as well of what’s going on with the property. So let me show you how you can use this. So this is how I used it one time. I wrote a letter, a demand letter to try to settle a case. It was a case like we talked about today. It was when a lady was walking up the stairs in the apartment building and she had a trip and fall because … Well, first of all there was wetness. So she slipped, but also the step had a defect.

And so when we researched it, we found that it was a 42 unit apartment building in Brooklyn. It was purchased for $6.5 million back in 2013. It had 189 violations, complaints from the Housing and Preservation Department, which were things like the mice or the slippery floors, broken windows. Those are the ones where people call 311 and the HPD comes out and they respond. It had like 243 problems, 111 HPD violations, 64 of which were still open and active, meaning most of the violations, like 60 out of 100 weren’t even fixed. Despite the HPD and the investigators from the city coming out and issuing the violations. And then they had these OATH trial adjudications.

So we looked at all the data from New York City. This is actually a portion of the letter here on the screen. And we were telling the insurance company for this building, “This is truly scary. This is frightening because the public data for your building shows that this landlord is affiliated with 22 other properties. And the portfolio has 1.1 open HPD violations per residential unit, which is much, much worse than the city average. So basically the available data is telling us that your buildings have a total of 2,160 violations. And we believe a Brooklyn jury, if they hear this information, is not going to be very sympathetic to a wealthy landlord who owns 22 buildings. Each building is like 7 million or more, and he’s neglecting the hardworking tenants. People who are suffering just to get enough money to pay the rent every month. And he’s neglecting them with 2,000 violations across all his properties.”

So this is very powerful data that an attorney can use to then get the insurance company to pay fair value for your seriously injured clients so you can get justice for your clients. And that’s exactly what we did in this case. This was actually a tough case, but we ended up settling it for a pretty good amount because we think because of this letter.

And you know, the next thing you could use are this digital tax maps where you could go in, and this is just from the city where they tell you the tax information, there’s a map and they’ll link you back to ACRIS and then you can also use something known as OpenRecords. What OpenRecords does is it’s a FOIl request. So it’s a Freedom of Information Law request, and you make the request online. You have to wait for about two, three months usually to get a response from most of the departments. So it’s good to do it early in your case, when you sign up the client. And you could do it again when you file a lawsuit perhaps because usually, litigation takes a long time. So you’ll definitely have two to three months if you’re filing a lawsuit.

But it’s really cool for attorneys to do it. And you just have to be a little bit creative when you do it. Because when you go to the category, it gives you a bunch of different categories. So depending on what type of case you have, it could be education, which we used. We had a case against the Department of Education where somebody slipped and fell. So we were actually able to get all the FOIL information through using this. And one of the FOIL things was a policy from 1974, saying that, “You have to have these rubber mats on the staircase, on the landings every time it rains.” And this was like a policy that was there since 1974 for like 40 years. And they violated it in our case. So we use that at trial and it was very successful. We ended up getting 1,400,000 for that client.

So it’s very powerful stuff. You just have to be a little bit creative and open-minded, and take the time to really search and explore. It’s almost like you’re wandering. So you don’t know what you’re going to find, but it’s fun sometimes just to wander around if you have the time to spend to really build up your client’s case to get them the most money possible. So you see here you can go and ask for things from a lot of different agencies. So sometimes you have a case and you wouldn’t even think that another agency might have information. And most premises cases it would be something like the Department of Buildings, but you could also get information from the Department of Consumer Affairs. For example, if it’s a slip and fall inside a store, the Department of Consumer Affairs would regulate the store.

It could be the Department of Education, like in our case, because we had a mother who fell inside a school. It was a rainy day, but she fell well inside the school, right? So the rainwater shouldn’t be going so far inside the building. So that was the Department of Education, their permits, their collective bargaining agreement with their teachers and all the union information was really helpful because it was saying that everybody agreed. It was collective bargaining. They all sat down at a table. They all agreed, the teachers, the janitors, the owners of the school, which is the City of New York ordered that everyone agreed, “We have to have these mats,” and yet they didn’t have the mats. And it’s been like a policy for 40 years.

So it looks really bad that they don’t follow their own policies. How can they themselves say all agree and say, “Hey, this is what we have to do, and then not do it.” That looks really bad and very damning. And you could get them to pay a lot of money like what we saw with that case. We also do a lot of litigation where we have to get information from the Department of Homeless Services, because a lot of the incidents happen either at shelters or they happen in affordable housing, which is housing that receives any kind of money.

The Department of Homeless Services has so many regulations. It’s very, very in-depth. They actually do an inspection every January. And then also every, I believe June, and it’s a 348 point inspection of these buildings because they’re funded by the federal government and by the state government. They’re subsidized, right? So they do these inspections. And we had a case where someone fell in one of these buildings. And then we find that the common area of that property had a violation for slippery lobby floors. And he fell on a slippery, slippery lobby floor. So exactly on point, boom, and then you made your case.

So yeah, you just have to get creative with this. Like if you had something with the parks, obviously you can go to the parks department. Whatever it’s about, there’s a lot of different agencies you could search for. So this is really cool. I really like this one. This is one of the best ones.

So just to summarize, I think like every attorney, when you get one of these premises cases, what you have to do is you have to have an open mind. You have to be willing to search a little bit and explore. And there’s a lot of cool things you can find. I mean, obviously, the most important thing is you go to the scene and you take your own photographs. You have your client tell you where they fell. Take photographs, take measurements, you get an expert. But a lot of the things you could do yourself online, like we’ve seen here with these, with these free resources, this is all free of charge. And I’m sure there are probably some other investigatory websites where you pay a fee and they’ll find more information for you. Like I heard of one guy, a very cool service. What he’ll do is he’ll find former employees of the defendants that you’re suing. So say for example I’m suing a building, right? He’ll find the former super, the guy who no longer works there. And then that’s super will then become my witness, right?

To prove the case, to say how bad they are, because he’ll probably have a lot of fun dirt to share because he no longer works there. Maybe he got fired, he’s upset. So that’s a pretty cool service. But that gets expensive. I think that’s like a few thousand dollars because they have to do a full private investigation. But if it’s worth it, you could totally do it. So there’s a lot of resources available. And the main point is, if you have that truly injured individual, where you as a lawyer, see, “Hey, this client really needs help. This client has been wronged.” Then it’s your job to get that client justice. And it’s your job to really sit down with that client, speak with that client, get to know them, go to their house, get on a Zoom, have them show you how their life has changed, how their family’s life has changed.

Then you could really get involved, get into the nitty-gritty, get into those details, help tell their human story. But then you have all these resources to prove liability. Because the first thing you really have to do is prove liability, right? Liability doesn’t change. If they fell in a hole, they fell in that hole. You can’t really change liability. You can change damages. You can always build up damages. Clients go for, first they go for an injection. Then later on they may need surgery. So damages can always get bigger, get more serious. And then by getting to know them and how the traumatic event has impacted their life, that’s telling their human story. So that’s really, really powerful.

So yeah, I hope this has been helpful. I think this is a really cool way to do it. When you’re a New York City trip and fall lawyer or a premises liability lawyer, and you’re looking to investigate a case, use these free resources. These are all really, really cool.

And if you’re a client, you might be wondering, “Yeah, I signed up with a lawyer. What’s the lawyer doing on my case? Are they just sitting there letting it linger?” They shouldn’t be, they should be using all of these resources. I mean, it does take time, but this is really good stuff. If you have a serious case, like with a surgery, a fracture, if your lawyer isn’t doing all this, that’s a real problem because there are so many gold nuggets here that you could be missing. So I hope this has been helpful.

Happy Friday the 13th, everybody. Have a great weekend and I’ll see you next time on Trial Stories. Bye-bye, everyone.

Okay. I hope this has been helpful. Please drop us a comment, subscribe to our podcast, let us know what other topics you’d like to hear about. We have a lot of trial stories from all types of cases, construction, work accidents, slip and falls, premises, ceiling collapses. We have brain injuries. We have spinal cord injuries. Medical cases with medical mistakes. All types of cases. So whatever you’re most interested in is what we’re going to talk about.

Have a great day, everyone. Bye-bye.