Diaz v. Calabrese et al

Filing 51

ORDER denying 38 Motion for Summary Judgment; denying 44 Motion for Summary Judgment. Ordered by Judge Allyne R. Ross on 12/4/2014. (Chelcun, Brian)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------ANNETTE DIAZ and WILLIAM DIAZ,
Plaintiffs,
-againstANTHONY CALABRESE, CAL6 LLC and
2 SNEDEN AVENUE, LLC,
Defendants.
--------------------------------------------------------------------ROSS, United States District Judge:

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13-CV-1531 (ARR) (MG)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

Plaintiffs, Annette and William Diaz, bring this diversity suit seeking damages for
personal injuries Ms. Diaz sustained on August 11, 2012, on the back porch of the Play Sports
Lounge, located at 2 Sneden Ave. in Staten Island, New York (“the premises”). Arguing that
Ms. Diaz’s injuries were caused by a defective condition at the premises, plaintiffs sue both
Anthony Calabrese and CAL 6 LLC (collectively, “CAL6”), the owners of the building, and 2
Sneden Avenue, LLC (“Sneden”), the tenant at the premises and operator of the sports bar where
the incident occurred. Landlord CAL6 has cross-claimed against tenant Sneden for “commonlaw indemnity and/or contribution and/or contractual indemnification.” CAL6 Answer, Dkt. #17,
¶¶ 57-59.
Before the court are all defendants’ motions for summary judgment on the plaintiffs’
negligence claim, and a motion for summary judgment by the CAL6 defendants against Sneden
on CAL6 defendants’ cross-claims. For the reasons set forth below, the defendants’ motions for
summary judgment against the plaintiffs are denied, and the CAL6 defendants’ motion on the
cross-claims is also denied.

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BACKGROUND1
Plaintiffs are residents of New Jersey. Am. Compl., Dkt. #19, ¶ 2. Defendant Anthony
Calabrese is a resident of New York, and defendants CAL6 LLC and 2 Sneden Avenue, LLC,
are New York limited liability companies that are headquartered and do business in New York.
Id., ¶¶ 1, 3-5, 9. Mr. Calabrese and his wife formed CAL6 LLC in order to acquire a building at
2 Sneden Avenue in Staten Island, New York. Deposition of Anthony Calabrese and CAL6 LLC
(“Calabrese Dep.”), Dkt. #42, Ex. J, at 7-8. In 2008, defendant Sneden rented the premises from
CAL6 and commenced operation there of the Play Sports Lounge, a sports bar. Deposition of
Carmine Gualtieri (“Gualtieri Dep.”), Dkt. #42, Ex. K, at 6; Calabrese Dep. at 8-9.
Plaintiff Annette Diaz was injured at the Play Sports Lounge on August 11, 2012, at
approximately 12:30am. Deposition of Annette Diaz (“Pl. Dep.”), Dkt. #42, Ex. H, at 11-12, 2630. The plaintiff arrived at the bar around midnight, after eating dinner and having one or more
drinks at a Staten Island restaurant. Id. at 12, 21-23. She proceeded through the back door of the
bar onto a small, raised section of the outdoor deck in the rear of the premises. Id. at 29-31, 34;
Calabrese Dep. at 14-15; Plaintiffs’ Initial Disclosure Pursuant to Rule 26, Dkt. #42, Ex. E, at
ECF 14. She then proceeded down the right-hand side of a four-step staircase leading to the
main, lower portion of the outdoor deck, holding onto the bannister with her right hand as she
descended. Pl. Dep. at 36-37, 39; Pls. 56.1 Statement Sneden, ¶ 4.
Ms. Diaz alleges that she was injured “when her right foot hit an uneven portion of

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Defendants have submitted statements of undisputed facts pursuant to Local Rule 56.1. CAL6 LLC Statement
Pursuant to Rule 56.1 (“CAL6 56.1 Statement”), Dkt. #39; 2 Sneden Ave, LLC Statement Pursuant to Rule 56.1
(“Sneden 56.1 Statement”), Dkt. #44. Plaintiffs have included paragraph-by-paragraph counterstatements in their
opposition. Plaintiffs’ Counterstatement to Rule 56.1 Statement of Defendants Calabrese and CAL6, LLC (“Pls.
56.1 Statement CAL6”), Dkt. #43; Plaintiffs’ Counterstatement to Rule 56.1 Statement of Defendant Sneden (“Pls.
56.1 Statement Sneden”), Dkt. #43. The following factual background is undisputed, unless indicated otherwise.

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decking located at the bottom of the staircase in question.” Pls. 56.1 Statement CAL6, ¶¶ 13-14;
see Pl. Dep. at 42-46.2 As she stepped onto the lower level of the deck with her right foot, with
her left foot still on the last step, she “felt the sensation that [the deck] was not flat [as] she
anticipated it would be,” heard a “snap,” “lost her footing,” and “felt immediate pain in her right
foot.” Pls. 56.1 Statement CAL6, ¶ 14; see Pl. Dep. at 45-46. Ms. Diaz regained her balance
without falling. Pl. Dep. at 45, 144-45. She did not “snag” or “stub” her foot on the deck, nor did
she “slip” on the deck. Id. at 45. She was not obstructed in any way as she descended the stairs.
Id. at 42-43.
At his deposition, Mr. Calabrese testified that when he purchased the premises in 2004, a
wood deck had been attached to the building. Calabrese Dep. at 14. He replaced that deck
sometime between 2004 and 2008, before Sneden became a tenant, but performed no repairs to
the deck since 2008, when Sneden’s tenancy commenced. Id. at 23, 26-27; Gualtieri Dep. at 33.
Carmine Gualtieri, the owner of Sneden, testified that he had performed cosmetic repairs to the
deck, including painting, power washing, and installing handrails. Gualtieri Dep. at 11-12.
According to all defendants, there had been no prior trip and falls on the deck or the staircase
leading to the lower deck area. Id. at 34; Calabrese Dep. at 29, 31-32. Gualtieri attested that he
had never complained to CAL6 about the condition of the deck or the stairs, Gualtieri Dep. at 33,
and Calabrese confirmed that he had never received any complaints about the condition of the
deck or the stairs, Calabrese Dep. at 28, 32. Ms. Diaz never complained of uneven decking at
the premises prior to the occurrence of the incident. Pl. Dep. at 119.
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The defendants characterize the plaintiff’s testimony regarding the location of the injury as the “last and final
step,” presumably before the deck. CAL6 56.1 Statement, ¶ 13; Sneden 56.1 Statement, ¶ 5. However, in their
memoranda of law they appear to agree with the plaintiffs’ interpretation that the injury occurred as Ms. Diaz
stepped onto the lower deck. Pls. 56.1 Statement CAL6, ¶¶ 13-14; Pls. 56.1 Statement Sneden, ¶¶ 5-6;
Memorandum of Law In Support of the CAL6 Defendants’ Motion for Summary Judgment (“CAL6 Mem.”), Dkt.
#41, at 9; Memorandum of Law Supporting [2 Sneden Ave, LLC’s] Summary Judgment [Motion] (“Sneden
Mem.”), Dkt. #45, at 2.

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Defendants contend that plaintiffs do not know how long the unevenness in the decking
had existed. CAL6 56.1 Statement, ¶ 21; Sneden 56.1 Statement, ¶ 10. Plaintiffs counter that
while they have no specific knowledge of when the condition first appeared, the testimony of
their expert engineer supports their contention that “the condition existed over a period of many
months prior to the accident.” Pls. 56.1 Statement CAL6, ¶ 21; see Letter of Joseph A. Pasaturo
dated Feb. 11, 2013 (“Pasaturo Report”), attached as part of Plaintiffs’ Expert Witness
Disclosure (“Pls. Exp. Discl.”), Dkt. #44, Ex. H, at 2. According to defendant Sneden, the height
differential between the uneven deck planks was less than one centimeter. Gualtieri Dep. at 44.
Plaintiffs disagree, citing a report by their private investigator who “measured the height
differential of the defect and found [it] to be approximately two (2) inches.” Pls. 56.1 Statement
CAL6, ¶ 29; Letter of Stuart Schwartz dated Jan. 18, 2013 (“Schwartz Report”), attached as part
of Pls. Exp. Disc., Dkt. #44, Ex. H, at 2.
A five-year lease between CAL6 and Sneden, executed in October of 2008, was in force
on the date of the incident. Lease Agreement (“Lease”) and Rider to Lease (“Rider”), Dkt. #42,
Ex. L; Gualtieri Dep. at 7. The lease required Sneden, as tenant, to “make all repairs of every
kind,” Lease, ¶ 2, except for “structural repairs to the premises” to be done by CAL6 as landlord,
Rider, ¶ 28.3 If Sneden failed to make any required repairs, CAL6 reserved the right to access
the premises “for the purposes of making repairs,” Rider, ¶ 57, and to do so at Sneden’s expense,
Rider, ¶ 36. The Rider also required Sneden to “maintain, for the benefit of the Landlord,
liability insurance in the sum of $1,000,000.00,” Rider, ¶ 30; to name CAL6 as “an insured in the
said policy,” id.; and to deliver “copies of all insurance policies . . . to the landlord prior to the
execution of the lease,” Rider, ¶ 45. It provided, further, that, “[s]hould the Tenant fail to obtain

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Pursuant to Paragraph 50 of the Rider, “[a]ll provisions in any Rider hereto, are agreed to supersede and void
similar provisions in the preprinted lease.”

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the aforesaid insurance . . . Landlord may do so and charge the cost thereof as rent.” Rider, ¶ 32.
On August 11, 2012, the date of the incident, Sneden had no liability insurance policy covering
the premises. Gualtieri Dep. at 10.
On March 22, 2013, plaintiffs brought this suit alleging that defendants “caused and
allowed the premises . . . to be and remain in a negligent condition,” which resulted in physical
injuries to Ms. Diaz and loss of consortium to Mr. Diaz. Am. Compl., ¶¶ 44-48. By answer filed
July 1, 2013, Calabrese and CAL6 asserted cross-claims against Sneden for contribution,
common-law indemnity, and contractual indemnity. CAL6 Answer, Dkt. #17, ¶¶ 57-59.
Following discovery, including expert reports and depositions of the parties, defendants brought
the instant summary judgment motions.
DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The function of the court is not to resolve disputed factual issues but to determine
whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “While genuineness runs to whether disputed factual issues can reasonably be resolved in
favor of either party, materiality runs to whether the dispute matters, i.e., whether it concerns
facts that can affect the outcome under the applicable substantive law.” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996))
(internal quotation marks and ellipses omitted).
In assessing whether summary judgment is appropriate, the court considers “the
pleadings, depositions, answers to interrogatories and admissions on file, together with any other

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firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156
(2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003)); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party carries the burden of
proving that there is no genuine dispute respecting any material fact and “may obtain summary
judgment by showing that little or no evidence may be found in support of the nonmoving
party’s case.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994). Once this burden is met, in order to avoid the entry of summary judgment, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for
trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). In reviewing the record before it,
“the court is required to resolve all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is sought.” McLee v. Chrysler Corp., 109
F.3d 130, 134 (2d Cir. 1997).
“Summary judgment is difficult to obtain in negligence actions because whether conduct
is ‘negligent’ is a factual determination in all but the most extreme situations.” Ortiz v. Rosner,
817 F. Supp. 348, 350 (S.D.N.Y. 1993). However, “[t]hough courts are hesitant to grant
summary judgment in negligence cases, the mere fact that a case involves a claim of negligence
does not preclude a granting of summary judgment.” Hood v. Regency Maritime Corp., No. 99
Civ. 10250(CSH), 2000 WL 1761000, at *2 (S.D.N.Y. Nov. 30, 2000) (internal citation and
quotation marks omitted).
II.

Admissibility of Plaintiffs’ Witnesses
As a preliminary matter, defendant Sneden contends that the evidence offered by two of

plaintiffs’ proposed witnesses – a private investigator who took photographs of the deck at Play
Sports Lounge and an expert engineer who analyzed the photographs and also visited the bar –

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are inadmissible on these motions under Rules 402 and 702 of the Federal Rules of Evidence.
Sneden Mem. at 12-15.4
Stuart Schwartz, a licensed private investigator, visited the premises on January 19, 2013,
and prepared a report and affidavit that are part of the record on this motion. Pls. Exp. Discl. at
ECF 5; Schwartz Report. During that visit, he made various observations and took photographs
and measurements of the area of the deck where Ms. Diaz claims she sustained her injury, as
well as of the steps and the surrounding area. Schwartz Report. In his report, Mr. Schwartz
described his visit to the Play Sports Lounge. He observed that, after stepping onto a small
platform area of the deck, there were four steps with a “handle/banister on the western side of the
staircase, which was loose and not very secured.” Id. at 2. He further noted that “the composite
plastic ‘wood look’ decking planks [at] the bottom of the steps, throughout the deck and
including the stairs,” were uneven. Id. More specifically, he observed that the first deck plank at
the bottom of the steps was approximately two inches higher than the elevation of the rest of the
decking. Id. He also noted that there were areas of unevenness beneath a nearby rubber floor
mat. Id. Schwartz appended to his report eight photographs documenting his observations of the
stairs and the deck.
Joseph Pasaturo is plaintiffs’ expert engineer. According to his affidavit and report, he
analyzed the photographs taken by Mr. Schwartz and, on that basis, opined that “the condition
[of the deck] shown in the photographs was a dangerous and defective condition constituting a
violation of the [New York City] Building Code.” Pls. Exp. Discl. at ECF 7. In his report dated
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Plaintiffs argue that this objection is beyond the scope of the present motions. Memorandum of Law in Opposition
to Defendants’ Respective Motions for Summary Judgment (“Pls. Mem.”), Dkt. #43, at ECF 25. Under Rule 56(c)
of the Federal Rules of Civil Procedure, however, only admissible evidence may be considered when ruling on
summary judgment motions. District courts may thus exclude irrelevant evidence, see Tretola v. First Unum Life
Insurance Co., No. 13 Civ. 231, 2014 WL 2815586, at *4 (S.D.N.Y. June 23, 2014), and also “screen out
inadmissible expert testimony on summary judgment,” Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d
334, 350 (S.D.N.Y. 2005); see also Raskin v. Wyatt Co., 125 F.3d 55, 66-67 (2d Cir. 1997).

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February 11, 2013, Mr. Pasaturo stated that the photographs “show a section of the decking
material to be significantly damaged [and] not level with the rest of the decking.” Pasaturo
Report at 2. He expressed his professional opinion that “the damage noted in the photos appears
to be deterioration that took place over a significant period of time, such as many weeks or
months and not something that could [have] happened suddenly.” Id. He further stated that it was
his professional opinion that the damage to the deck “created an unsafe condition” that could
cause an injury “if someone were to trip and fall while walking on the damaged decking or while
coming down the uneven staircase onto the lower damaged decking,” and that the conditions of
the decking at the premises violated New York City building codes. Id. Mr. Pasaturo also visited
the bar several months after Mr. Schwartz’s visit and observed that repairs had been made to the
deck since the Schwartz pictures were taken. Pls. Exp. Discl. at ECF 7.
Sneden argues that the court should not consider on these motions the evidence offered
by either witness. First, Sneden claims that the Schwartz and Pasaturo reports are “irrelevant”
because they focus on an area of the deck that is “some distance” from the precise location where
Ms. Diaz injured herself. Sneden Mem. at 13. Under Rule 401 of the Federal Rules of
Evidence, evidence is relevant if it has “any tendency to make a fact more or less probable than it
would be without the evidence,” and that fact is “of consequence in determining the action.”
According to Sneden, observations about areas of the deck other than the precise location where
the incident occurred neither make the existence of the defect in question more or less probable,
nor do they have any consequence as to whether that specific defect existed. Sneden Mem. at 14.
Sneden’s argument overlooks, however, that Mr. Schwartz specifically observed that there was
unevenness between the two deck planks at the bottom right of the stairs, the precise location
that Sneden identifies as the relevant one. That Schwartz also photographed and observed other

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areas does not make this portion of his testimony any less relevant. Furthermore, drawing all
reasonable inferences in plaintiffs’ favor, analysis of similar, nearby defects may, as plaintiffs
argue, be indicative of “general neglect of care and maintenance,” Pls. Mem. at ECF 26, and
assist the trier of fact in determining the origin and duration of the specific defect in question.
The testimony of Mr. Schwartz and Mr. Pasaturo regarding both the general area and specific
location of the accident is relevant to determining the nature of the alleged defect and whether it
caused Ms. Diaz’s injury. See, e.g., Melini v. 71st Lexington Corp., No. 07 Civ. 701, 2009 WL
413608, at *5 (S.D.N.Y. Feb. 13, 2009) (understanding general condition of ramp “contributes to
determining whether the ramp’s condition caused [plaintiff’s] fall”).
Sneden also argues that Mr. Pasaturo’s testimony is unnecessary because it does not
assist the jury in understanding any of the fact evidence at issue in this case, as required by Rule
702 of the Federal Rules of Evidence.5 Specifically, Sneden argues that a jury should be able to
consider available photographic evidence and determine, without the specialized knowledge of
an expert engineer, whether the defect in the deck existed and whether it caused Ms. Diaz’s
accident. Sneden Mem. at 14-15. Sneden does not dispute the expert engineering qualifications
of Pasaturo, nor does it raise any questions concerning the reliability of Pasaturo’s observations
and methodology. Here, plaintiffs offer Pasaturo’s expertise to help establish the origin and
duration of the defect, Pls. Exp. Discl. at ECF 6-7, which Sneden itself places at issue by denying
that it could have known about the defect for a long enough time such that it could have repaired
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Although plaintiffs refer to Mr. Schwartz as a “security expert” who will “offer an opinion” based on his
observations as well as “all of the evidence admitted during trial of this matter; depositions, diagrams, photographs,
and his professional knowledge and experience,” Pls. Exp. Discl. at ECF 5, Schwartz, a private investigator, does
not have expertise to opine about “defects” or “negligent conditions.” See, e.g., Brady v. Chemical Construction
Corp., 740 F.2d 195, 200-201 (2d Cir. 1984) (noting that investigator who testified regarding facts he personally
learned during investigation was properly admitted as lay, not expert, witness). However, he is a competent fact
witness who may testify about his observations, measurements, and other first-hand factual knowledge. The report
presently before the court on these motions contains only such factual observations made by Mr. Schwartz, namely,
measurements and photographs of the deck, and does not include any “expert” opinions or conclusions. It will thus
be considered as fact evidence presented by a lay witness competent to report on such observations.

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it, Sneden Mem. at 10, 12. Pasaturo’s report is also offered to establish that the defects violated
various building codes, an analysis that falls outside the scope of an ordinary juror’s
understanding and requires professional knowledge. It is well established that engineering
expertise may be helpful and admissible to shed light on the existence of a defective condition
and whether it is causally related to a particular accident. See, e.g., Melini, 2009 WL 413608, at
*5 (finding that expert’s “education and experience in engineering and building code compliance
give him an adequate background to offer his opinion” in a structural defect matter); McHale v.
Wescott, 893 F. Supp. 143, 148 (N.D.N.Y. 1995) (holding that expert testimony regarding
existence of alleged structural defect created issue of fact precluding summary judgment);
Manning v. Tracy J’s, Inc., No. 06 CIV. 956, 2008 WL 1780048, at *6 n.7 (S.D.N.Y. Apr. 17,
2008) (considering expert opinion of structural engineer regarding existence of handrail defect in
denial of summary judgment motion). Thus, Pasaturo’s testimony may be of assistance to the
jury, and his opinion may be considered by this court in determining the existence and nature of
the defect and whether it caused plaintiff’s injury.
Sneden’s objections to the Schwartz and Pasaturo Reports are therefore without merit; the
witnesses’ reports and affidavits will be considered as part of the record in determining these
summary judgment motions.
III.

Defendants’ Liability
Under New York law, a landowner must maintain its property in a reasonably safe

condition, taking into consideration the possibility of injuries resulting from foreseeable and
reasonable use of the property. Basso v. Miller, 352 N.E. 2d 868, 872 (N.Y. 1976). To establish
a negligence claim against a landlord or tenant for injuries sustained on the leased premises, the
plaintiff must demonstrate “that the landowner [or tenant] controls the property, that a defect

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exists, and that the defect causes plaintiff’s injuries.” McHale, 893 F. Supp. at 147 (citing Turrisi
v. Ponderosa, Inc., 578 N.Y.S.2d 724, 726 (App. Div. 1992)). On a motion for summary
judgment, the court must make “the threshold determination as to whether the plaintiff, by
introducing adequate evidence on each element, has made out a case sufficient in law to support
a favorable jury verdict.” Basso, 352 N.E.2d at 873.
A.

Defendants’ Control of Leased Premises

Plaintiffs have established that at the time of the incident, Calabrese and CAL6 were the
owners of the premises and Sneden was the tenant operating Play Sports Lounge. None of the
defendants assert that they cannot be held liable because they did not have control over the
premises on the date of the incident. CAL6 does contend, however, that it “played no role
whatsoever in connection with the Plaintiff’s alleged accident.” CAL6 Mem. at 22. CAL6
argues that it did not have a presence on the premises on the night of the incident, did not have
any actual or constructive notice of the alleged defect, did not perform any repairs to the deck
after Sneden became a tenant in 2008, and was “not required to maintain and/or repair the deck
area.” Id. As will be addressed below, CAL6 has moved for summary judgment on its crossclaims for “common-law indemnification and/or contribution” from Sneden, alleging that it was
not negligent and that, if there was negligence, Sneden was the only negligent party. CAL6 does
not argue, however, that it did not have a duty of care towards the plaintiff and other patrons at
the premises.
Plaintiffs have introduced adequate evidence of both defendants’ control over the
premises to support a jury verdict in plaintiffs favor. Sneden’s principal, Mr. Gualtieri, testified
that he managed the bar on a regular basis, and was present on the evening of the incident.
Gualtieri Dep. at 18-19, 31. Sneden was clearly an active tenant with control over the premises

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on the night in question. Pls. Mem. At ECF 23.
As to CAL6, under New York law, an out-of-possession landlord is not liable for
personal injuries sustained on the property unless the landlord retains control over the leased
premises. Dominguez v. Food City Markets, Inc., 756 N.Y.S.2d 637, 639 (App. Div. 2003). A
landlord’s obligation to maintain and repair the premises can establish control over the property.
Taylor v. Lastres, 847 N.Y.S.2d 139, 140 (App. Div. 2007) (“Control may be evidenced by lease
provisions making the landlord responsible for repairs or by a course of conduct demonstrating
that the landlord has assumed responsibility to maintain a particular portion of the premises.”).
Where a landlord retains control over the leased premises, it has a duty to exercise reasonable
care to protect people on the property from dangerous conditions. Tagle v. Jakob, 763 N.E. 2d
107, 108-09 (N.Y. 2001) (citing Basso, 352 N.E. 2d at 872).
Plaintiffs point to the lease agreement between CAL6 and Sneden, which includes
language that reserves “structural repairs” as an obligation of the landlord. Pls. Mem. at ECF 24;
Rider, ¶ 28. Plaintiffs’ expert engineering witness has opined that the unevenness of the deck
planks was a “structural” defect that violated New York City building codes. Pls. Mem. at ECF
24; Affidavit of Joseph A. Pasaturo, attached as Ex. B to Pls. Mem., at ECF 32. A reasonable
jury considering this evidence could find that “the lease provides [CAL6] with a right of entry”
to make these obligatory structural repairs. Pls. Mem. at 24. This is sufficient to establish
CAL6’s control over the premises and potential liability for dangerous defects.
B.

Existence of Defect

“[W]hether a dangerous or defective condition exists on the property of another so as to
create liability depends on the peculiar facts and circumstances of each case and is generally a
question of fact for the jury.” Trincere v. Cnty. of Suffolk, 688 N.E. 2d 489, 490 (N.Y. 1997)

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(internal citations and quotation marks omitted); accord Alig v. Parkway Parking of N.Y., Inc.,
829 N.Y.S.2d 242, 244 (App. Div. 2007). Nevertheless, Sneden argues that plaintiffs have failed
to identify the specific defect that caused Ms. Diaz’s injury, Sneden Mem. at 4-7, and CAL6
argues that the defect identified by plaintiffs is trivial and not actionable, CAL6 Mem. at 15-17.
Resolving ambiguities and drawing inferences in plaintiffs’ favor, neither of these arguments has
merit.
1. Identifiable Defect
Sneden argues that it is entitled to summary judgment on plaintiffs’ negligence claim
because the “record is devoid of evidence identifying the alleged defect” and plaintiffs have
failed to “identify the specific defect that allegedly caused the subject accident.” Sneden Mem. at
4-5. In a trip and fall case, a “plaintiff’s inability to identify the cause of his or her fall is fatal to
his or her cause of action” because any finding of causation would be based on speculation.
Jackson v Fenton, 831 N.Y.S. 2d 260, 261 (App. Div. 2007) (collecting cases); see also Ash v.
City of New York, 972 N.Y.s. 2d 594, 596 (App. Div. 2013) (plaintiff could not identify what
caused her to fall and only speculated that it was a tuft of grass); Rajwan v. 109-23 Owners
Corp., 919 N.Y.S.2d 385 (App. Div. 2011); Louman v. Town of Greenburgh, 876 N.Y.S.2d 112
(App. Div. 2009). Here, however, drawing all inferences in their favor, plaintiffs have “clearly
identified the cause of [Ms. Diaz’s] fall,” Jackson, 831 N.Y.S. 2d at 261, through her testimony
and other admissible evidence.
Sneden’s initial arguments – that plaintiffs did not clearly identify the defect in the
pleadings, Sneden Mem. at 5, and that they provided insufficiently detailed interrogatory
responses, id. at 6 – are neither timely nor relevant on a motion for summary judgment. Nnebe,
644 F.3d at 156 (summary judgment record not limited to pleadings or interrogatories). In any

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event, plaintiffs provided clear and detailed descriptions through deposition testimony, expert
reports, and photographs that identify the alleged defect – uneven decking at the bottom of the
staircase, with a two-inch height differential between the first and second planks of wood on the
lower deck, at the bottom of the stairs on the right hand side. Schwartz Report at 2; Pl. Dep. at
42-44, 169-70.
Finally, Sneden argues that the photographs submitted by plaintiffs’ witness do not depict
a defect in the first two planks of the deck at the bottom of the staircase, and that there is no
evidence of a defect at this location. Sneden Mem. at 6-7. Regardless of which defects are
visible in the various photographs, however, Ms. Diaz’s deposition testimony and Mr.
Schwartz’s findings provide sufficient evidence that the deck planks were uneven at the location
where Ms. Diaz alleges her injury occurred.6 The weight of the photographic evidence and
credibility of the witnesses are determinations for the factfinder at trial; for the purposes of
summary judgment, plaintiffs have offered sufficient evidence, photographic and otherwise, such
that a reasonable trier of fact could identify the alleged defect and proceed to consider whether it
caused Ms. Diaz’s injury.
2.

Trivial Defect

CAL6 argues that the alleged defect was trivial in nature, as Ms. Diaz did not stub her toe
or slip, but merely sensed that the decking was uneven. CAL6 Mem. at 16. CAL6 also points to
Mr. Gualtieri’s testimony that any unevenness at the bottom of the stairs on the deck area was
less than one centimeter. CAL6 Mem. at 17.
A property owner may not be held liable for “trivial defects on a walkway . . . as a

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Though evidence of repair is inadmissible under Federal Rule of Evidence 407 to prove Sneden’s negligence,
Sneden’s claim that its own photographs show no defect, Sneden Mem. at 7, is undercut by the observations of
plaintiffs’ expert witness, who noted that the defective portion of the deck appeared to have been repaired in the
months following the accident. Pasaturo Report; Pls. Mem. at ECF 19.

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consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised
projection.” Trincere v. Cnty. of Suffolk, 648 N.Y.S. 2d 126, 128 (App. Div. 1996) (internal
quotation marks omitted). Whether a defect is trivial is not subject to a per se rule based on the
size of a defect; rather, the size, irregularity, and appearance of the defect must be considered
“along with the ‘time, place and circumstance’ of the injury.” Trincere, 688 N.E.2d at 490
(quoting Caldwell v. Village of Island Park, 107 N.E.2d 441, 443 (N.Y. 1952)). Assessing the
triviality of the defect is appropriate on a motion for summary judgment. Natijehbashem v.
United States, 828 F. Supp. 2d 499, 507 (E.D.N.Y. 2011) (“Where the dangerous or defective
condition alleged by a pedestrian is a height differential of approximately one inch (1”), New
York courts, and courts applying New York law, generally grant summary judgment dismissing
the case.”); see also Losito v. JP Morgan Chase & Co., 899 N.Y.S.2d 375, 376 (App. Div. 2010)
(dismissing as trivial and non-actionable claim where photographs showed that the alleged defect
was “slight and [ ] there was no elevation differential” and where the accident occurred “during
daylight hours on a clear day with nothing obstructing [plaintiff’s] view”); Zalkin v. City of New
York, 828 N.Y.S.2d 485, 486 (App. Div. 2007) (granting summary judgment against plaintiff
who alleged a “3/4 of an inch difference in the height elevation between the edge of the concrete
slab which had caused the plaintiff to fall and the adjacent concrete slab”); but see Habecker v.
KFC U.S. Properties, Inc., 928 F. Supp. 2d 648, 655 (E.D.N.Y. 2013) (collecting cases denying
summary judgment on motions alleging trivial defects); D’Nelson v. Costco Wholesale Corp.,
2006 WL 767866, at *6 (E.D.N.Y. Mar. 24, 2006) (denying summary judgment and submitting
case to jury “to determine whether the defect was so trivial as to not be actionable,” given
disputed issues of fact regarding the height differential and circumstances of plaintiff’s fall);
Sanna v. Wal–Mart Stores, Inc., 706 N.Y.S.2d 156, 157 (App. Div. 2000) (finding triable issue

15

of fact as to whether color of carpet and poor lighting created a trap, despite alleged defect of
only 1/2 inch). This review often requires an examination of photographs to determine “whether
a defect is trivial as a matter of law.” Czochanski v. Tishman Speyer Properties, Ltd., 45 F.
App’x 45, 47 (2d Cir. 2002) (applying the trivial defect analysis to stairways).
Here, plaintiffs have submitted evidence indicating that the uneven planks in the deck
constituted a defect that was more than trivial. First, plaintiffs’ investigator observed that the
height differential between the uneven planks was two inches. Schwartz Report at 2. This rebuts
CAL6’s reliance on Mr. Gualtieri’s testimony that the difference was only one centimeter, or less
than half an inch. CAL6 Mem. at 17; Gualtieri Dep. at 44. Plaintiffs have thus presented a
disputed issue of material fact that precludes a determination on triviality at the summary
judgment stage.
Furthermore, a jury could find that the defect was not trivial based on its appearance and
the time, place, and circumstance of the injury. For example, CAL6 acknowledges that the
incident occurred around midnight, when it was likely dark on the deck, and the defects not
readily apparent. Cf. Tzul v. United States, No. 12 CV 804, 2014 WL 4773972, at *5 (E.D.N.Y.
Aug. 14, 2014), report and recommendation adopted, 2014 WL 4773974 (E.D.N.Y. Sept. 24,
2014) (fact that incident occurred during daylight hours weighs in favor of triviality); Shiles v.
Carillon Nursing & Rehab. Ctr., LLC, 864 N.Y.S.2d 439, 439 (App. Div. 2008) (finding defect
trivial where “[the injury] occurred during daylight hours on a clear day with nothing obstructing
[plaintiff’s] view”). Additionally, a jury could find that the location of the alleged defect, at the
bottom of a staircase, presented a greater risk of injury than a comparable defect on regular
ground. See, e.g., D’Nelson, 2006 WL 767866, at *6 (considering location of defect at bottom
of escalator in determining triviality). Finally, plaintiffs’ expert opines that the uneven decking

16

violated building codes and created an unsafe condition for falls, providing further evidence that
the defect was more than trivial. Pasaturo Report; see McHale, 893 F. Supp. at 148 (finding
testimony from plaintiff’s structural engineer that stairs did not comply with building code
“sufficient to raise an issue of fact regarding the existence of a longstanding structural defect”). 7
Plaintiffs have provided enough evidence suggesting that the defect was not trivial,
including the disputed issue of fact regarding the size of the defect, that the issue of triviality
must be determined by the factfinder and not on summary judgment.
C.

Defendants’ Actual or Constructive Notice of Defect

In addition to establishing the existence of a defective condition on the premises,
plaintiffs must also show that defendants had actual or constructive notice of that defect. Taylor
v. United States, 121 F.3d 86, 89-90 (2d Cir. 1997) (citing Gordon v. Am. Museum of Natural
History, 492 N.E.2d 774 (N.Y. 1986)). “A defendant has actual notice of a defect if he created
the condition or received reports of it such that he has actual knowledge of the defect’s
existence.” McHale, 893 F. Supp. at 148. Even if defendants lacked actual notice of a structural
defect, however, plaintiffs could still recover if a jury concluded that defendants should have
known about the defect. “To constitute constructive notice, a defect must be visible and apparent
and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to
discover and remedy it.” Gordon, 492 N.E.2d at 775; accord McHale, 893 F. Supp. at 148.
The defendants argue that they did not create the defect; CAL6 states that it did not
perform any work on the deck since 2008, and Sneden claims that it did only cosmetic repairs

7

CAL6 notes that the plaintiff had consumed “alcoholic beverages” on the evening of the incident, apparently
suggesting that her state of mind should be considered in assessing whether the defect was trivial. CAL6 Mem. at
16. It is unclear whether this fact is disputed, as CAL6’s Rule 56.1 Statement refers only to “an” alcoholic beverage
consumed earlier that evening, CAL6 56.1 Statement, ¶ 4, and there is no testimony or evidence alleging that Ms.
Diaz was intoxicated as a result of the drink. In any event, the other evidence and circumstances provide a sufficient
basis to conclude that the defect was not trivial, regardless of whether plaintiff had consumed a drink.

17

such as painting or power washing. CAL6 Mem. at 17-18; Sneden Mem. at 10. Plaintiffs do not
allege that defendants created the defect in the decking. Rather, their expert opines that the
damage “appears to be deterioration that took place over a significant period of time, such as
many weeks or months and not something that could [have] happened suddenly.” Pasaturo
Report at 2. Nor do plaintiffs challenge the testimony of CAL6 and Sneden representatives that
they received no complaints about the stairs or deck, nor reports of people falling or injuring
themselves on the stairs or deck. CAL6 Mem. at 18; Sneden Mem. at 11. Instead, plaintiffs
focus on whether defendants had constructive notice of the defect that would trigger a duty to
repair. Pls. Mem. at ECF 22-25.
Defendants argue that they did not have constructive notice because the alleged defect
was not visible and apparent for a sufficient length of time such that they should have been able
to discover and correct it. CAL6 Mem. at 19-20; Sneden Mem. at 12. Sneden claims that it was
not “visible and apparent” at all, noting that Ms. Diaz herself did not observe the uneven
decking. Sneden Mem. at 12. This confuses the question, which is not whether plaintiff saw the
defect – presumably plaintiffs in most cases do not, or they would not have tripped and fallen –
but rather whether defendants could or should have seen the defect and thus had notice of its
existence. Indeed, Ms. Diaz would have had greater difficulty observing the defect given that
she was on the outdoor deck in the middle of the night and it was her first visit to the premises,
Pl. Dep. at 26, whereas Sneden’s owner and employees observed the deck on a regular basis,
including during daylight hours, Pls. Mem. at 23. Ms. Diaz’s failure to observe the defect carries
little weight in determining whether Sneden’s representatives should have seen it.
Sneden also alleges, again, that plaintiffs’ photographs of the deck do not show a
noticeable defect at the specific site where Ms. Diaz testified that she placed her foot on the

18

deck. Sneden Mem. at 12. As discussed above, however, the location of that site has been
sufficiently identified and described in the record, such that a jury could find that a two-inch
differential in the height of the planks at that location was not trivial and, by extension, that such
a defect would have been visible and apparent to defendants. Furthermore, a jury could
reasonably find that the photographs show clearly that nearby defects in the decking were visible
and apparent, and that defendants should therefore have been on notice of the specific defect in
question located only a foot or two away. Sneden argues that evidence of any “awareness of a
general dangerous condition is not enough to charge a defendant with constructive notice of the
particular dangerous condition that caused the injury.” Taylor, 121 F.3d at 90 (citing Gordon,
492 N.E.2d at 774). A court must “examine the facts of each case,” however, to “determine
whether the plaintiff has proven notice of a dangerous condition at a level of specificity
sufficient to support liability.” Id. In Taylor, constructive notice required defendant’s awareness
that a door was slamming, not merely that it was generally malfunctioning, id. at 91; in Gordon,
where the plaintiff slipped on a piece of paper, it was required that there be constructive notice of
the specific litter involved in the incident, not merely notice that there was dangerous litter
located on the premises more generally, Gordon, 492 N.E.2d at 775. In this case, plaintiffs have
alleged that the accident was caused by visible and apparent unevenness in the decking on the
lower deck at the bottom of the stairs, and have submitted photographs of other defects in that
immediate area. This is specific enough that a jury considering the photographic evidence, along
with the other evidence discussed above, could reasonably conclude that the defendants had
constructive notice of the entire defective area, including the uneven planks that allegedly caused
plaintiff’s injury.8 See also McHale, 893 F. Supp. at 149 (citing Putnam v. Stout, 345 N.E.2d

8

CAL6 does not argue that the defect was not apparent, only that it is unclear how long it was there. As discussed
above and argued by plaintiffs, Pls. Mem. at ECF 24, there is a dispute of fact as to whether the provisions of the

19

319 (N.Y. 1976), for proposition that constructive notice of defect may be based in part on
knowledge of similar nearby defect).
Whether or not the alleged defect in the deck existed for a sufficient length of time prior
to the accident is also a material fact that is disputed by the parties. Defendants charge that
plaintiffs have failed to state how long the uneven decking existed prior to Ms. Diaz’s injury, and
assert that the lack of prior falls suggests the defect was not present for a significant length of
time. CAL6 Mem. at 19-20; Sneden Mem. at 12. However, plaintiffs’ expert, Mr. Pasaturo,
reported that, in his opinion, the nature of the defect “appears to be deterioration” and that it
“took place over a significant period of time, such as many weeks or months and [was] not
something that could [have] happened suddenly.” Pasaturo Report at 2; Pls. Mem. at ECF 23.
Viewing the record in the light most favorable to plaintiffs, the evidence raises triable
issues of fact regarding whether defendants had constructive notice of a structural defect in the
deck boards at the base of the stairs, specifically, whether the defect was visible and apparent and
whether it existed for a sufficient period of time. A jury could credit testimony that there was a
two-inch gap in decking, supported by photographic evidence of similar unevenness, and that
this unevenness constituted a visible and apparent defect. It could also reasonably conclude that
the slowly deteriorating condition existed for a sufficient period of time such that the defendants
knew or should have known about it and taken steps to correct it. Therefore, defendants are not
entitled to summary judgment on the issue of constructive notice.
D.

Proximate Cause

Finally, plaintiffs must establish that the alleged structural defects in the decking
proximately caused Ms. Diaz’s injuries. To demonstrate proximate cause, a plaintiff must show
lease agreement between CAL6 and Sneden required CAL6 to make “structural repairs” on the premises, which
would establish CAL6’s control over the deck. Plaintiffs have thus provided sufficient evidence that CAL6 was not
an out-of-possession landlord, and had reason to be present on the premises and constructive notice of the defect.

20

that the injury was “a natural and probable consequence of the conditions present.” Gordon, 492
N.E.2d at 775. “Although proximate cause can be inferred from circumstances underlying the
accident and need not be demonstrated by direct evidence, mere speculation as to the cause of
injury is insufficient.” Ascher v. Target Corp., 522 F. Supp. 2d 452, 456 (E.D.N.Y. 2007)
(collecting cases); see also Ellis v. Cnty. of Albany, 613 N.Y.S.2d 983, 984-85 (App. Div. 1994)
(finding proximate cause without direct evidence is appropriate so long as based on “logical
inferences to be drawn from the evidence”). “Although it is ordinarily for the trier of fact to
determine legal cause, where only one conclusion may be drawn from the established facts the
question of legal cause may be decided as a matter of law.” Howard v. Poseidon Pools, Inc., 72
N.Y.2d 972, 974 (1988) (internal quotation marks and alterations omitted) (finding that
plaintiff’s conduct, rather than any negligence by defendants, was sole proximate cause of
injuries).
Defendant Sneden argues that plaintiffs cannot establish proximate cause because they
can only speculate, not prove, that it was the uneven planking that caused Ms. Diaz’s injury.
Sneden Mem. at 8. Sneden cites several cases for the proposition that causation cannot be based
on speculation, but in those cases plaintiffs could not identify the supposed defect that caused
their injuries. Costantino v. Webel, 869 N.Y.S.2d 179 (App. Div. 2008) (insufficient evidence of
causation where no connection made between unsafe building code violations in a doorway and
accident occurring in the doorway); Luciano v. Trans World Airlines, Inc., No. 96 CV 3999,
1998 WL 433808, at *3 (E.D.N.Y. July 28, 1998) (plaintiff did not know what caused accident
and no evidence supported theory that she fell over a suitcase).

21

Here, plaintiffs have alleged that as Ms. Diaz stepped onto the lower deck, she sensed
that it was not flat, lost her balance, heard a snap, and felt pain.9 This testimony is supported by
photographic and other evidence that there were uneven planks and other defects at the bottom of
the stairs where plaintiffs claim the injury occurred. Even if the precise location or nature of the
defect is not certain, plaintiffs have adduced evidence of a tangible, identifiable, and nonspeculative potential cause of Ms. Diaz’s injury. McHale, 893 F. Supp. at 150 (“[Plaintiff] need
not prove the precise step on which [she] fell or the precise condition of that step in order to
show proximate cause.”). Hearing this evidence, and drawing logical inferences in plaintiffs’
favor, a jury could find that it was the defective condition in the decking that proximately caused
her injury.
Defendant Sneden also notes that Ms. Diaz admitted that she had worn wedge or platform
shoes at the time of the incident, apparently suggesting an alternative potential cause for the
injury. Sneden Mem. at 9; Pl. Dep. at 146. However, plaintiffs need not exclude other possible
causes. Plaintiffs must adduce evidence showing only that it was “more likely or more
reasonable that the alleged injury was caused by the defendants’ negligence than by some other
agency.” Ascher, 522 F. Supp. 2d at 456; see also Scala v. Scala, 818 N.Y.S.2d 151, 152 (App.
Div. 2006) (noting that there may be more than one proximate cause of an accident). While
plaintiffs may not ultimately be able to establish that the defective decking was the proximate
cause of Ms. Diaz’s injury, the evidence in the record at this stage rises beyond mere speculation.
A reasonable jury could conclude, after examining the evidence and drawing all inferences in
plaintiffs’ favor, that it was the defective deck planks that caused Ms. Diaz’s injury.
9

Sneden argues that the planking could not have contributed to Ms. Diaz’s injury because she was already
“standing” on the lower deck when she lost her footing and did not trip or stumble. Sneden Mem. at 8. Plaintiffs,
however, have adduced evidence disputing that characterization, which is sufficient to support an inference that she
was in motion when the injury occurred. Pls. Mem. at ECF 22; Pl. Dep. at 42-46. This dispute raises an issue of
fact to be tried by the jury.

22

IV.

CAL6’s Cross-Claims Against Sneden
CAL6 moves for summary judgment against Sneden on its cross-claims for “common-

law indemnification and/or contribution and/or contractual indemnification.” CAL6 Mem. at 2021. It argues that there is not a “shred of evidence that would support the conclusion that the
CAL6 Defendants were negligent in any manner,” and that if anyone is held liable for Ms. Diaz’s
injury it should be Sneden, because the tenant failed to properly repair or maintain the deck.
CAL6 Mem. at 22; Reply Memorandum of Law in Further Support of the CAL6 Defendants’
Motion for Summary Judgment on its Cross-Claims for Common-Law Indemnification,
Contribution and/or Contractual Indemnification as Against 2 Sneden Avenue, LLC (“CAL6
Reply”), Dkt. #50, at 8.
In order to prevail on summary judgment on its claim for common-law indemnification,
the moving party must establish (1) that it was not negligent and (2) that the proposed
indemnitor’s negligence was a cause of the injury for which the indemnitee has been held liable.
Amusement Indus., Inc. v. Stern, 693 F. Supp. 2d 319, 326 (S.D.N.Y. 2010). Such a claim is
barred when both parties are “tortfeasors [who] violated the same duty to the plaintiff.” Gabriel
Capital, L.P. v. Natwest Financial, Inc., 137 F. Supp. 2d 251, 269 (S.D.N.Y. 2000). Thus,
common-law indemnification is typically available in cases where a party is held liable solely by
operation of law or vicarious liability. McCarthy v. Turner Construction, Inc., 953 N.E.2d 794,
798-99 (N.Y. 2011); see, e.g., Firestone v. Berrios, No. 12-CV-0356, 2013 WL 297780, at *16
(E.D.N.Y. Jan. 22, 2013) (“[I]n order for [claimant] to be entitled to indemnification, it would
have to be alleged that she committed no wrong, but only by virtue of her relationship with the
torfeasor, she is nevertheless potentially liable to [plaintiff].”).

23

CAL6 has not alleged such a relationship here, nor has it made clear how any liability it
might incur would be based on anything other than its own wrongdoing. In any event, it is not
entitled to summary judgment on its cross-claim for common-law indemnification because, as
discussed above, whether CAL6 or Sneden are liable for Ms. Diaz’s injury depends on material
issues of disputed fact that must be resolved by the trier of fact. A reasonable jury may conclude
that CAL6 was negligent because it had constructive notice of a non-trivial defect in the outdoor
decking but breached its duty to make structural repairs, causing plaintiff’s injury. Alternatively,
now drawing inferences in favor of non-moving party Sneden, a jury might consider the disputed
issues of fact – including the credibility of plaintiffs’ expert and the nature of the defect – and
find that Sneden was not negligent or did not cause Ms. Diaz’s injury, precluding CAL6’s claim
for indemnification.
The parties also advance conflicting interpretations concerning who was responsible for
“structural repairs” under the Lease and Rider contracts, although their motion papers fail to
adequately address this issue. See CAL6 Mem. at 22, 24; CAL6 Reply at 8; Sneden
Memorandum of Law Opposing Summary Judgment (“Sneden Opp.”), Dkt. #49, at 9-10. CAL6
argues that Sneden created the defective condition by failing to repair or maintain the deck, but
does not respond to the assertion that it was responsible for “structural repairs” under paragraph
28 of the Rider. CAL6 Reply at 8; Sneden Opp. at 9. This dispute further precludes a
determination at the summary judgment stage as to defendants’ negligence.10

10

Unlike common-law indemnification, the right to contribution arises where one tortfeasor seeks to recover against
other tortfeasers. Firestone, 2013 WL 297780 at *15 (“The right to contribution generally arises when multiple
wrongdoers . . . each owe a duty to plaintiff or to each other and by breaching their respective duties they contribute
to plaintiff's ultimate injuries.” (internal quotation marks omitted) (alteration in original)); Amusement Industries,
693 F. Supp. 2d at 325-27 (“Where a party seeking to recover against other tortfeasors is at fault, New York . . .
relegates such a party to the remedy of contribution.”). CAL6 does not address its cross-claim for contribution in its
motion for summary judgment. It focuses instead on indemnification, arguing that it was not negligent and Sneden
was negligent, not that it is entitled to contribution in the event both are found to be liable. Because the parties do
not do so, I decline to address the cross-claim for contribution at this stage, particularly considering that such a

24

CAL6 also alleges entitlement to contractual indemnification from Sneden. CAL6 Mem.
at 23-24; CAL6 Answer, ¶ 59. In order to succeed on this claim, CAL6 must show (1) that it
was not negligent and (2) that a “promise to indemnify . . . can be clearly implied from the
language and purpose of the entire [contractual] agreement and the surrounding circumstances.”
George v. Marshalls of MA, Inc., 878 N.Y.S. 2d 143, 148-49 (App. Div. 2009). As discussed
above, there are disputed issues of material fact regarding CAL6’s negligence; these issues
preclude a finding of summary judgment in its favor on this cross-claim. As to the second
element of contractual indemnity, there does not appear to be any language in the Lease or Rider
promising or even suggesting indemnification. CAL6 nevertheless argues that the lease is
“unequivocal and unambiguous” in requiring Sneden to indemnify CAL6 for liability stemming
from plaintiff’s accident, based on the clause in the Rider requiring that Sneden maintain a $1
million liability insurance policy for the benefit of CAL6 as landlord. Rider, ¶ 30; CAL6 Mem.
at 23. Under New York law, however, “[a]n agreement to procure insurance is not an agreement
to indemnify or hold harmless, ” Kinney v. G.W. Lisk Co., 556 N.E.2d 1090, 1092 (N.Y. 1990),
and courts consistently distinguish between the two, see, e.g., Town of Hempstead v. E. Coast
Restaurant Group, LLC, 889 N.Y.S.2d 88, 90 (App. Div. 2009); McNamee Const. Corp. v. City
of New Rochelle, 817 N.Y.S.2d 295, 296 (App. Div. 2006); Boyle v. City of New York, 655
N.Y.S.2d 23, 24 (App. Div. 1997); Spencer v. B.A. Painting Co., 638 N.Y.S.2d 37, 38 (App.
Div. 1996) (holding that “insurance procurement clauses are entirely independent of
indemnification provisions”); Macri v. Park S. Associates, 604 N.Y.S.2d 92, 93 (App. Div.
1993). Whether Sneden breached its contractual obligation to procure liability insurance is

determination is premature given that neither party has been held liable or paid more than its share of a judgment
against it. See, e.g., Board of Trustees of S. Cal. IBEW-NECA Defined Contribution Plan v. Bank of N.Y. Mellon
Corp., No. 09 Civ. 6273, 2011 WL 6130831, at *2 (S.D.N.Y. Dec. 9, 2011) (dismissing counterclaim as premature
absent finding of liability).

25

relevant only to a breach of contract claim, which CAL6 did not plead, and is not relevant to
CAL6’s cross-claim for contractual indemnification. CAL6’s motion for summary judgment on
its contractual indemnity cross-claim is therefore denied.11
CONCLUSION
The record reflects triable issues of fact regarding whether the outdoor deck at Play
Sports Lounge had a structural defect that was not trivial, whether the defendants had
constructive notice of the defective condition of the deck, and whether the defective condition
was the proximate cause of Ms. Diaz’s injury. Accordingly, plaintiffs have adduced sufficient
evidence to proceed to a jury on each of the elements of their negligence claim, and defendants’
motions for summary judgment are denied. The record also reflects that there are issues of fact
regarding CAL6 defendants’ liability for negligence that preclude summary judgment on their
cross-claims; the CAL6 motion for summary judgment on these cross-claims is also denied.

SO ORDERED.

__/s/___________________________
Allyne R. Ross
United States District Judge
Dated:

December 4, 2014
Brooklyn, New York

11

Although this analysis demonstrates that there is no evidence in the record supporting CAL6’s cross-claim against
Sneden for contractual indemnification, Sneden has not itself moved for summary judgment on this claim.

26