Kloner et al v. United States of America

Filing 51

MEMORANDUM AND ORDER denying 43 Motion for Reconsideration. For the reasons discussed in the attached Memorandum and Order, the Court denies Defendant's motion for reconsideration. Ordered by Judge Margo K. Brodie on 10/11/2016. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------WILLIAM KLONER and ELIZABETH KLONER,
Plaintiffs,
v.

MEMORANDUM & ORDER
13-CV-3171 (MKB)

THE UNITED STATES OF AMERICA,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Rabbi William Kloner and his wife, Elizabeth Kloner, commenced this action
on June 3, 2013, against Defendant the United States of America, alleging negligence in
violation of the Federal Tort Claims Act (the “FTCA”). (Compl., Docket Entry No. 1.) By
Memorandum and Order dated July 21, 2016, the Court denied Defendant’s motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (the “July 21, 2016
Decision”). Kloner v. United States, --- F. Supp. 3d ---, ---, 2016 WL 3962975, at *1 (E.D.N.Y.
July 21, 2016). On August 4, 2016, Defendant moved for reconsideration of the July 21, 2016
Decision. (Def. Mot. for Reconsideration, Docket Entry No. 43; Def. Mem. of Law in Supp. of
Def. Mot. (“Def. Mem.”), Docket Entry No. 44.) For the reasons set forth below, the Court
denies Defendant’s motion for reconsideration.
I.

Background
The Court assumes familiarity with the facts as set forth more fully in the July 21, 2016

Decision, Kloner, --- F. Supp. 3d at ---, 2016 WL 3962975, at *1–3, and provides a summary of

only the pertinent facts. 1
Plaintiffs seek damages for injuries they sustained as a result of Rabbi Kloner’s fall from
a staircase during a United States Coast Guard (“USCG”) retirement ceremony. (Compl. ¶ 14.)
The USCG retirement ceremony took place on June 24, 2010, in the music hall of the Snug
Harbor Cultural Center and Botanical Garden (“Snug Harbor”), a privately owned space in
Staten Island. (Id.) On February 18, 2010, the USCG and Snug Harbor entered into a rental
agreement that permitted the USCG to use the music hall during its upcoming New York Change
of Command and Retirement Ceremony. (Def. Statement of Undisputed Facts Pursuant to Local
R. 56.1 (“Def. 56.1”) ¶ 1, Docket Entry No. 31.) The rental agreement barred the USCG from
making alterations to Snug Harbor’s facilities and equipment. (Id. ¶¶ 6–7.)
At the time of the USCG retirement ceremony, Rabbi Kloner was an 82-year-old retired
Rear Admiral of the New York Naval Militia. (Id. ¶ 8.) The USCG asked the Rabbi to offer an
invocation at the retirement ceremony because of his contract with USCG and because he was a
personal and professional friend of the retiring captain who was being celebrated that day. (Id.
¶ 21; Compl. ¶ 15.)
Commander Carissa April, the head of planning and the primary point of contact for the
USCG event, made “four or five visits” to the Snug Harbor Music Hall while planning and
preparing for the retirement ceremony. (Statement of Carissa April (“April Statement”) 1,

1

The facts are recounted from the submissions supporting Defendant’s motion for
summary judgment, and are undisputed unless otherwise noted. The Court will refer to
Plaintiff’s responses to Defendant’s 56.1 and Plaintiff’s statement of additional facts as “Pl.
56.1”; to Defendant’s 56.1 and Defendant’s responses to Pl. 56.1 as “Def. 56.1”; and to
Defendant’s further replies to Plaintiff’s responses as “Def. Reply 56.1.”

2

annexed to Decl. of Steven S. Honigman (“Honigman Decl.”) as Ex. E, Docket Entry No. 37.) 2
The day before the ceremony, the USCG held a “full rehearsal” at the Music Hall with all
ceremony participants except Rabbi Kloner and the other clergy member participant, Monsignor
Dorney. (Id.) During the rehearsal, members of the ceremony’s “Official Party” were escorted
to the stage by ushers, in part because of the bridge-like structure of the staircase that crossed
over the musician’s pit. (Statement of Kenneth Schnetzler (“Schnetzler Statement”), annexed to
Honigman Decl. as Ex. H.) Commander April and her colleagues decided to provide the clergy
with an unofficial escort, “New York Sector VIP Coordinator” Ydania Matos, “as a measure of
safety and comfort” at the event. (Dep. of Carissa April (“April Dep.”) 75:2–14, annexed to
Honigman Decl. as Ex. C, Docket Entry No. 36.) According to Commander April, “[the
clergy’s] path to the stage [via the main staircase] was assumed,” (Id. at 45:18–19), because they
had Matos as an escort and because, as more informal members of the ceremony, they would be
seated on the stage before the ceremony began, (id. at 45).
The main staircase was configured as a stand-alone unit without hand rails, and it
ascended over an orchestra pit and onto the theater stage. (Def. 56.1 ¶ 12.) The stair structure
consisted of two three-riser staircases to the left and right sides of a platform, leading to a
platform landing. (Sector New York Admin. Investig. (“USCG Investigation”) 4, annexed to
Compl. as Ex. F.) 3 That landing, approximately four feet wide, then turned toward the stage.

2

Plaintiffs’ exhibits A–J, annexed to the Declaration of Steven S. Honigman, are
grouped and docketed as Docket Entries No. 35–38. The Court cites to the docket entry for each
exhibit referenced.
3

Plaintiffs’ Exhibit F, the USCG Investigation, is paginated by hand and annexed to the
Complaint as four documents. (See Docket Entry No. 1.) The Court refers to the hand-written
page numbers on each page of Exhibit F.

3

(Id. at 12.) The next stair led to another platform that appeared to cross the majority of the
orchestra pit, and the final stair was steeper than the platform step before it. (Id. at 4; Pl. Reply
56.1 ¶ 11.) The final stair also had a walking surface with a five-inch “lip” or drop-off, which
required a person to step down onto the stage floor. (USCG Investigation 6, 8.)
When Rabbi Kloner arrived, he was greeted by Matos, who escorted him to the wooden
staircase in front of the stage, (Def. 56.1 ¶ 11), and accompanied him up the staircase and on to
the stage, (id. ¶ 15). There, Matos showed Rabbi Kloner his seat and podium assignment for the
ceremony. (Id. ¶ 16.) Rabbi Kloner then expressed a desire to descend the stage staircase to the
ground floor in order to meet with acquaintances in the audience before the start of the
ceremony. (Id. ¶ 17.) Matos escorted Rabbi Kloner down the stage staircase and left him on the
ground floor while she attended to official duties at the VIP check-in table. (Id. ¶ 18.) Matos
testified during her deposition that she had informed Rabbi Kloner that she would “come and get
[him] when it’s time to start,” (Dep. of Ydania Matos (“Matos Dep.”) 24:13–18, annexed to
Honigman Decl. as Ex. A, Docket Entry No. 35), and that he “acknowledged” her statement by
nodding, 4 (id. 24:19–25:6).
Shortly thereafter, the Master of Ceremony proceeded to the main stage to announce the
“officer’s call,” requesting that all standing guests take their seats. (Id. ¶ 19.) Rabbi Kloner
made his way to the stage staircase and began to ascend on his own, as Matos helped the justarrived Monsignor to his seat on the stage. (Id. ¶ 26.) As the Rabbi approached the final step
near the top of the staircase, he lost his balance and fell to his left, into the open-air orchestra pit.
(Id. ¶ 28.) He fell six and a half feet to the bottom of the pit. (Id. ¶ 29.) Two USCG medical
4

Plaintiffs dispute Matos’ account, noting that when she gave a statement to the Coast
Guard Investigating Officer four days after Rabbi Kloner’s fall, she did not report her instruction
to Rabbi Kloner. (See Pl. 56.1 ¶ 25 (citing Matos Dep. at 24–25).)

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officers and Sector New York medical staff provided emergency medical services to the Rabbi
“within seconds of the fall.” (USCG Investigation 15.) Police and emergency medical service
technicians arrived approximately fifteen minutes later, and within minutes of one another. (Id.)
Rabbi Kloner was transported to a waiting ambulance approximately eighteen minutes after his
fall. (Id.)
Rabbi Kloner suffered severe injury from his fall, including acute intracranial
hemorrhaging and multiple rib fractures and lacerations. (Compl. ¶ 21.) At home, the Rabbi
requires twenty-four-hour nursing care and cannot perform basic activities of daily life without
aid from several caretakers. (Id. ¶ 25.) Mrs. Kloner incurred medical and other expenses for
Rabbi Kloner’s treatment, loss of employment opportunity while she cared for her husband, and
loss of consortium. (Id. ¶¶ 42–55.)
II. Discussion
a.

Standard of review

The standard for granting a motion for reconsideration is strict, and “[r]econsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Cedar Petrochem., Inc. v. Dongbu Hannong Chem. Co., Ltd.,
628 F. App’x 793, 796 (2d Cir. 2015) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995)); Bank of Am. Nat’l Ass’n v. AIG Fin. Prods. Corp., 509 F. App’x 24, 27 (2d Cir.
2013) (“The standard for granting such a motion is strict . . . .” (quoting Shrader, 70 F.3d at
257)); see also Local Civ. R. 6.3 (The moving party must “set[] forth concisely the matters or
controlling decisions which counsel believes the Court has overlooked.”); Smith v. N.Y.C. Dep’t
of Educ., 524 F. App’x 730, 734 (2d Cir. 2013) (“To warrant reconsideration, a party must ‘point

5

to controlling decisions or data that the court overlooked — matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.’” (quoting Shrader, 70 F.3d
at 257)).
It is thus “well-settled” that a motion for reconsideration is “not a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998)). A motion for reconsideration is “neither an occasion for repeating old arguments
previously rejected nor an opportunity for making new arguments that could have previously
been made.” Simon v. Smith & Nephew, Inc., 18 F. Supp. 3d 423, 425 (S.D.N.Y. 2014) (citations
and internal quotation marks omitted). In order to prevail on a motion for reconsideration, “the
moving party must demonstrate that the Court overlooked controlling decisions or factual
matters that were put before the Court on the underlying motion.” Lichtenberg v. Besicorp Grp.
Inc., 28 F. App’x 73, 75 (2d Cir. 2002) (citations and internal quotation marks omitted); see also
Stoner v. Young Concert Artists, Inc., No. 11-CV-7279, 2013 WL 2425137, at *1 (S.D.N.Y. May
20, 2013) (“A motion for reconsideration is an extraordinary remedy, and this Court will not
reconsider issues already examined simply because [a party] is dissatisfied with the outcome of
his case. To do otherwise would be a waste of judicial resources.” (alteration in original));
Henderson v. City of New York, No. 05-CV-2588, 2011 WL 5513228, at *1 (E.D.N.Y. Nov. 10,
2011) (“In order to have been ‘overlooked,’ the decisions or data in question must have been put
before [the court] on the underlying motion . . . and which, had they been considered, might have
reasonably altered the result before the court.” (alterations in original) (citations omitted)).

6

b.

The July 21, 2016 Decision

In the July 21, 2016 Decision, the Court denied Defendant’s motion for summary
judgment. Kloner, --- F. Supp. 3d at ---, 2016 WL 3962975, at *1. The Court held, as a
preliminary matter, that Plaintiffs’ recovery was not barred under the Feres doctrine, 5 which
precludes recovery against the United States under the FTCA for injuries that occur incident to
military service. Id. at *7. The Court next considered Plaintiffs’ negligence claim under the
FTCA, noting that although the parties agreed that the USCG did not owe Plaintiffs a duty of
care arising from the USCG’s use of the Snug Harbor facility or creation of a dangerous
condition, Plaintiffs argued that the USCG had assumed a duty of care to Rabbi Kloner and
subsequently breached that duty of care. Id. at *8. The Court summarized Plaintiffs’ argument
that the USCG assumed a duty of care to Rabbi Kloner when it (1) assigned Matos to escort him
to the stage via the main stairway, and (2) instituted a set of instructions known as the
Operational Risk Management (“ORM”) procedures, which required the USCG to detect
hazards, assess risks and institute risk controls at events like the retirement ceremony. Id.
The Court first considered Plaintiffs’ argument that the USCG assumed a duty of care
when it assigned Matos to escort Rabbi Kloner to the stage via the main stairway. Id. at *8–9.
Explaining the assumption-of-duty doctrine, the Court analogized to cases in New York state and
federal district courts in which a defendant who owed no general duty of care to the plaintiff was
nevertheless found to have assumed a duty of reasonable care. Id. at *9. The Court noted that,
contrary to Defendant’s argument that it was absolved of liability because it lacked control over
the Snug Harbor premises, multiple cases involved “third-party tour operators or guides on
properties they neither own nor occupy regularly but with which they are more familiar than
5

See generally Feres v. United States, 340 U.S. 135, 146 (1950).

7

their patrons,” and in such cases, “where the third party assumes a duty of the plaintiff, such as
where one of its employees directs the participant to proceed in a particular matter, the third
party may be held liable if its conduct placed the plaintiff in a more vulnerable position.”
Id. at *10 (citations and internal quotation marks omitted). The Court held that, on the facts
before it, whether Defendant assumed a duty of care to Plaintiffs depended on whether Matos
had, in fact, directed Rabbi Kloner up the main staircase to the stage and whether Rabbi Kloner
had relied on Matos in choosing to take the main staircase to ascend the stage thereafter. Id.
Thus, the Court could not hold, as a matter of law, that Defendant had not assumed a duty of care
to Rabbi Kloner. Id.
Because the Court had already identified a genuine issue of fact as to Defendant’s duty, it
declined to reach the parties’ arguments regarding the ORM manual and process, which
Plaintiffs had set forth as an alternative argument for Defendant’s assumption of a duty of care.
Id. at *10. The Court then addressed the elements of breach and proximate cause, noting that “in
New York, a breach is necessarily implied where a defendant is found to have assumed a duty of
care” because the assumption-of-duty inquiry requires that a defendant’s failure to exercise care
increase the risk of harm to a plaintiff by inducing a plaintiff’s reliance. Id. at *11. The Court
therefore denied Defendant’s motion because “a reasonable jury could find that the USCG
assumed and breached a duty of care to Rabbi Kloner, which resulted in his injury.” Id. at *12.
c.

Defendant’s motion for reconsideration

Defendant argues on reconsideration that the Court erred when it (1) permitted Plaintiffs
to “raise a new cause of action in their opposition briefs,” (2) decided the motion based on a duty
of care without considering the law of premises liability and (3) held that there was a genuine
issue of fact as to whether the USCG assumed a duty toward Rabbi Kloner. (Def. Mem. 2–3.)

8

Plaintiff opposes the motion, arguing that the Court correctly decided the motion for summary
judgment and that Defendant is merely relitigating issues that it has already raised. (Pl. Mem. in
Opp’n to Mot. for Reconsideration (“Pl. Opp’n”) 4, 7, 9, Docket Entry No. 47.) The Court
addresses each of Defendant’s arguments in turn.
i.

New cause of action

Defendant argues that the Court overlooked “controlling case law” from the Second
Circuit that “demonstrates that [P]laintiffs should have been precluded from raising and
prosecuting a new cause of action in their opposition brief,” (Def. Mem. 8), and argues that the
Court “compounded [its] error in considering this unpled claim” when it “found that this very
issue precluded summary judgment in favor of [Defendant],” (id. at 2). Defendant argues that
the Court’s consideration of this “new cause of action” led to “manifest injustice.” (Id.) Plaintiff
argues that Defendant’s argument on reconsideration “fails the reconsideration standard” because
“it is an argument that Defendant could have made but neglected to make in support of its
motion.” (Pl. Opp’n 4.)
1.

Plaintiffs’ assumption-of-duty theory is not a “cause of action”

Defendant argues that the Court erred in “permitting [P]laintiffs to assert, for the first
time, a new cause of action in their opposition” to summary judgment — “namely, that
[Defendant] ‘voluntarily assumed the duty of guiding Rabbi Kloner to his seat on the stage by a
safe pathway away from a dangerous condition.’” (Def. Mem. 2 (alteration and citation
omitted).) Defendant contends that the Second Circuit has “long held that ‘it is inappropriate to
raise new claims for the first time in submissions in opposition to a summary judgment motion.’”
(Id. at 8 (quoting Thomas v. Egan, 1 F. App’x 52, 54 (2d Cir. 2001).) In support of this
proposition, Defendant cites Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701 (2d Cir. 2010);

9

Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006); and Syracuse Broad. Corp. v.
Newhouse, 236 F.2d 522, 525 (2d Cir. 1956). Far from establishing the rule articulated by
Defendant, the cited cases stand for the more nuanced proposition that it is not an abuse of
discretion for a district court judge to disregard new claims brought for the first time in an
opposition brief. See Lyman, 364 F. App’x at 701 (“Accordingly, we cannot conclude that the
district court abused its discretion in failing to consider plaintiff’s new theories of liability.”
(citing Greenidge, 446 F.3d at 361)); Greenidge, 446 F.3d at 361 (holding that, where the
plaintiff had not provided the defendant with notice of the new theory being asserted, “the
district court did not abuse its discretion when it determined that [the new theory] was
untimely”); Thomas, 1 F. App’x at 54 (affirming on the merits a district court’s grant of
summary judgment on a retaliation claim alleged for the first time in an opposition brief, but
noting that “[o]rdinarily, a district court presented with such a situation could grant plaintiff
leave to amend her complaint, incorporating these new claims”); Syracuse Broad. Corp., 236
F.2d at 525 (holding that the district court judge was “justified” in “brush[ing] aside a further
charge, made in the briefs and affidavits, but not alleged in the complaint or subsequent
statement of claims, nor in any way substantiated”).
Notwithstanding Defendant’s characterization of the Second Circuit law, Plaintiffs did
not “prosecute a cause of action . . . for the first time in a brief in opposition” to Defendant’s
motion for summary judgment. (Def. Mem. 8.) As the Court explained in the July 21, 2016
Decision, the assumption-of-duty negligence doctrine was articulated by Justice Cardozo in
H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167 (1928). In H.R. Moch, the New
York Court of Appeals affirmed the New York Appellate Division’s decision to dismiss an
action against Rensselaer Water Company for its failure to extinguish a fire before the fire

10

reached the plaintiff’s property. See H.R. Moch, 247 N.Y. at 163. The Court of Appeals
identified an assumed “duty to go forward” that may arise as part of an “action . . . for a
common-law tort.” Id. at 168. The court explained that if a plaintiff could establish a “relation
[between the plaintiff and the defendant] involving in its existence a duty of care irrespective of a
contract, a tort may result . . . from acts of omission as of commission in the fulfillment of the
duty.” Id. at 167. Based on the Court of Appeals’ reasoning, a plaintiff’s ability to establish that
the defendant owed a duty of care did not itself constitute a cause of action, but required a further
showing of “negligent performance” of that duty in order to allege an action in tort. Id. at 168.
More recent New York Court of Appeals and Second Circuit cases reflect this understanding of
the assumption of duty as a theory that satisfies one of the multiple elements a plaintiff must
allege to plead a claim for negligence. 6 See Tavaris v. Lelakis, 143 F.3d 733, 736 (2d Cir. 1998)
(describing the assumption of duty as a theory that plaintiffs argued to support their negligence
action); Heard v. City of New York, 82 N.Y.2d 66, 72 (1993) (referring to an assumed-duty
“theory of reliance” that exposes a defendant to liability in a negligence action); Nallan v.
Helmsley-Spear, Inc., 50 N.Y.2d 507, 520–22 (1980) (considering plaintiffs’ “theory” that the
defendant “had assumed a duty, the negligent performance of which could lead to liability, even
if there was no legal obligation in the first instance” (emphasis added)).
Defendant does not explain why Plaintiffs’ argument regarding the assumption of a duty
of care should be considered a “cause of action” or a “claim” rather than an argument or theory
in support of Plaintiffs’ negligence claim under the FTCA. (Id. at 8–9.) Accordingly, the
6

To establish a prima facie case of negligence under New York law, a plaintiff must
show: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant
breached that duty; and (3) that the plaintiff suffered damages substantially as a result of that
breach. Pasternack v. Lab. Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir.) (citing Lombard v.
Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002)), as amended (Nov. 23, 2015).

11

Second Circuit law that Defendant cites does not support its position, and Defendant has not met
its burden to identify controlling law that the Court overlooked in considering Plaintiffs’
assumption-of-duty theory. See Cedar Petrochem., 628 F. App’x at 796.
2.

Plaintiffs’ assumption-of-duty theory is not “new”

Even if the law considered the assumption-of-duty theory advanced by Plaintiffs to
constitute a cause of action or a claim — rendering applicable the Second Circuit law
disapproving of plaintiffs who advance a new claim in an opposition to summary judgment —
Defendant received adequate notice of this theory from the Complaint.
The Second Circuit’s reluctance to permit new causes of action to proceed when they are
raised for the first time during motion practice stems from the general precept that “[a] claim
must be set forth in the pleadings, in order to give defendants fair notice of the nature of the
plaintiff’s claim.” Thomas, 1 F. App’x at 54. See also Lyman, 364 F. App’x 699, 701–02 (“We
have reviewed plaintiff’s complaint and interrogatory response, and we conclude that they were
insufficient to put defendant on notice of plaintiff’s new negligence claims.”); Greenidge, 446
F.3d at 361 (“[T]he central purpose of a complaint is to provide the defendant with notice of the
claims asserted against it . . . .”).
Here, the Complaint alleges that the USCG “had a duty to identify potential risks and
hazards to personnel participating in the Ceremony and to exercise due care to . . . control such
risks and hazards by applying appropriate management policies and procedures.” (Compl. ¶ 29.)
The Complaint then explains the ORM procedures and states that the “employees of the [USCG]
who were responsible for planning and carrying out the Ceremony were responsible for
complying with the [ORM] policy and the procedures to implement it.” (Id. ¶ 30.) Finally, the
Complaint contends that “[a] proper implementation of the ORM . . . would have caused the

12

[USCG] to position a safety handrail or guardrail, or station a person at the stairs, platform or
stage, to provide immediate assistance to persons walking the pathway . . . .” (Id. ¶ 38.)
Although the Complaint does not expressly state that the USCG assumed a duty to Plaintiffs, it
states a negligence claim based in part on a theory that the USCG assumed a duty to identify
certain risks and implement risk-mitigating procedures when it implemented the ORM
procedures. Consistent with this claim, Plaintiffs argued in their opposition to Defendant’s
motion for summary judgment that the USCG assumed a duty of reasonable care to Rabbi
Kloner when it (1) assigned Matos to escort him to the stage via the main stairway, and
(2) instituted the ORM policy, which required the USCG to detect hazards, assess risks and
institute risk controls at events like the retirement ceremony. (Pl. Mem. in Opp’n to Def. Mot.
for Summ. J. (“Pl. Summ. J. Mem.”) 13, Docket Entry No. 33.) While Defendant clearly did not
anticipate Plaintiffs’ inclusion of an alternative argument to support the assumption-of-duty
theory, Defendant had adequate notice of Plaintiffs’ general theory that the USCG had assumed a
duty to Rabbi Kloner. See Greenidge, 446 F.3d at 361. Thus, the assumption-of-duty theory
itself was not “new,” as Defendant argues. (Def. Mem. 8.)
3.

Defendant did not present this argument to the Court on the
underlying motion

“In order to have been ‘overlooked,’ the decisions or data in question must have been put
before [the court] on the underlying motion.” Henderson, 2011 WL 5513228, at *1 (quoting
Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000)); see
also Cedar Petrochem., 628 F. App’x at 797 (holding that where the moving party introduced a
new argument “only after the district court had found in favor of [the opposing party] and
rejected” the moving party’s initial theory, “the proper time for [the argument on
reconsideration] was trial”); Litchenberg, 28 F. App’x at 75 (noting that a party must

13

“demonstrate that the Court overlooked controlling decisions or factual matters that were put
before the Court on the underlying motion”).
Having been “deeply prejudiced” by Plaintiffs’ “new cause of action” in the opposition to
Defendant’s motion for summary judgment, Defendant nevertheless failed to raise any such
argument in its reply brief to Plaintiffs’ opposition. (See generally Def. Reply in Supp. of Def.
Mot. (“Def. Summ. J. Reply”), Docket Entry No. 39.) In its reply to Plaintiffs’ opposition,
Defendant noted in passing that “[P]laintiffs argued, for the first time, that USCG’s liability
‘arises under the assumed duty doctrine,’” (Id. at 2), but neither explained further nor argued that
the Court should deny Plaintiffs the opportunity to present their theory. Defendant’s attempt to
challenge Plaintiffs’ assumption-of-duty theory on these grounds “only after [the Court] found in
favor of [Plaintiff] and rejected” Defendant’s arguments on the underlying motion does not
warrant reconsideration of the Court’s decision to permit Plaintiffs to advance their theory. See
Cedar Petrochem., 628 F. App’x at 797.
Because the Court did not overlook relevant controlling decisions or evidence that was
put before it on the underlying motion, Defendant’s motion for reconsideration is denied as to the
Court’s decision to consider Plaintiffs’ assumption-of-duty theory.
ii.

Premises liability

Defendant argues that the Court erred in finding a triable issue of fact as to Defendant’s
liability because “[P]laintiffs’ assumed duty claim is inextricably intertwined with a premises
liability claim, as both claims are rooted in the allegation that the Snug Harbor Music Hall stage
staircase was ‘unreasonably dangerous.’” (Def. Mem. 10.) In substance, Defendant argues that
because the USCG did not “own, occupy, control, or employ a special use of the Snug
Harbor Music Hall,” it cannot be held liable for a “dangerous condition” on that property. (Id.

14

at 10–11.) Plaintiffs argue that Defendant simply reiterates the same argument it made in the
underlying motion for summary judgment and, in any event, has misconstrued the case law. (Pl.
Opp’n 8.)
In the July 21, 2016 Decision, the Court noted that the parties did not dispute that the
USCG lacked control or ownership over Snug Harbor, but that Plaintiffs’ claim did not rely on
premises liability to create the duty owed by the USCG. Kloner, --- F. Supp. 3d at ---, 2016 WL
3962975, at *8. Instead, Plaintiffs relied on an assumption-of-duty theory. Id. The Court thus
rejected Defendant’s argument that it could not be held liable for dangerous conditions on the
premises, expressly citing cases that it found “instructive because they involve third-party tour
operators or guides on properties they neither own nor occupy regularly but with which they are
more familiar than their patrons.” Id. at *10 (citing Giuffra v. Vantage Travel Serv., Inc.,
No. 13-CV-6880, 2015 WL 3457246, at *4 (S.D.N.Y. June 1, 2015); Carley v. Theater Dev.
Fund, 22 F. Supp. 2d 224, 229 (S.D.N.Y. 1998); Maraia v. Church of Our Lady of Mt. Carmel,
828 N.Y.S.2d 525, 526 (App. Div. 2007); Cohen v. Heritage Motor Tours, 618 N.Y.S.2d 387,
389 (App. Div. 1994)).
Raising the same argument of premises liability on reconsideration, Defendant has relied
on a single, non-controlling case whose reasoning is not inconsistent with the Court’s reasoning
in the underlying summary judgment decision. (Def. Mem. 11 (citing Knight v. Realty USA.com,
Inc., 947 N.Y.S.2d 693, 694 (App. Div. 2012).) The plaintiff in Knight tripped over a platform
located in the basement of a house that was open for viewing and sale. Knight, 947 N.Y.S.2d at
693. The plaintiff subsequently brought suit for negligence against the real estate agent and
brokers who arranged the open house. Id. Defendant contends that the Appellate Division “held
that since the ‘defendants established that they did not owe the plaintiff a duty of care with

15

respect to any defective or dangerous conditions on the premises,’ the plaintiff’s other causes of
action based in negligence — including whether the defendant ‘assumed a duty to repair [the
dangerous condition] or to warn others about it’ — merited dismissal as a matter of law.” (Def.
Mem. 11 (quoting Knight, 947 N.Y.S.2d at 694).) Defendant mischaracterizes the holding in
Knight.
The court in Knight held that the defendant brokers did not owe the plaintiff a general
duty of care as to the dangerous condition on the property because the defendants did not own,
occupy or control the premises. Knight, 947 N.Y.S.2d at 694. The court then noted that “[i]n
response thereto, plaintiff failed to raise a triable issue of fact,” and that “[c]ontrary to plaintiff’s
contentions, the evidence does not establish that [the defendants] assumed a duty to repair the
platform or to warn others about it, nor does it establish that defendants may be liable under a
‘special use’ theory of liability.” Id. at 694–95 (citing generally Gauthier v. Super Hair, 762
N.Y.S.2d 736, 737 (App. Div. 2003)).
In so holding, the court in Knight relied on Gauthier, 762 N.Y.S.2d at 737. Knight, 947
N.Y.S.2d at 694-95. Gauthier involved a plaintiff who sustained injuries when she fell into a
hole in the parking lot of a building leased by the defendant, Super Hair. Gauthier, 762
N.Y.S.2d at 737. Noting that the common area was not under Super Hair’s control, the court
held that although the plaintiff had failed to raise a triable issue of fact for premises liability,
there were “triable issues of fact whether the proprietor of [the defendant company] directed
plaintiff to exit the leasehold premises through the side door and, if so, whether such conduct
exacerbated the risk to plaintiff.” Id. The court in Knight and the case on which it relied,
Gauthier, considered the assumption-of-duty theory as a distinct basis for a defendant’s duty,

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and there is no indication that such a theory is contingent on a defendant’s ownership or control
of a premises.
Defendant’s re-argument, which attempts again to ground Plaintiffs’ claim in a premises
liability theory of negligence, has not persuaded the Court that it overlooked controlling law or,
for that matter, non-controlling law, in its decision to consider Plaintiffs’ assumption-of-duty
theory independently of a premises liability theory. Because a motion for reconsideration is not
“an occasion for repeating old arguments previously rejected,” Simon, 18 F. Supp. 3d at 425,
Defendant’s motion is denied as to the “inextricable” relationship between Plaintiffs’ assumedduty theory and a premises liability theory, (Def. Mem. 10).
iii. Assumption of duty
Defendant argues that “the undisputed record establishes that: (1) Rabbi Kloner did not
rely to his detriment on Ms. Matos; and (2) Ms. Matos did not place Rabbi Kloner in a more
vulnerable position or cause Rabbi Kloner to detrimentally rely on Ms. Matos.” (Id. at 12.)
Defendant relies on Tavarez v. Lelakis, 143 F.3d 744, 747 (2d Cir. 1998), to further argue that
“even if Ms. Matos had assumed a voluntary duty when she greeted Rabbi Kloner and led him to
the stage, such a duty was not of infinite duration” and was discharged when Matos left Rabbi
Kloner to socialize with guests on the ground floor. (Id. at 15.) Plaintiffs argue that Defendant’s
argument is not only “another attempted ‘bite at the apple,’” but also a “profound[]
misrepresent[ation of] the nature of Plaintiff’s claim and the reasoning of the Court’s decision
denying summary judgment.” (Pl. Opp’n 9.)
1.

Defendant has not identified facts that the Court overlooked

Defendant has not identified any facts that the Court overlooked in the July 21, 2016
Decision and instead has attempted to reconstruct its argument, from the underlying motion for

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summary judgment, that Rabbi Kloner “‘severed the nexus between the alleged breach of duty
and his purported damages’ when he chose to climb the staircase without Matos’ aid.”
Kloner, --- F. Supp. 3d at ---, 2016 WL 3962975, at *7; (see Def. Mem. 15). Indeed, Defendant
points to the undisputed facts in the record and reargues the assumption-of-duty inquiry based on
those facts. (See, e.g., Def. Mem. 13 (“These facts are all undisputed, and as a matter of law,
[P]laintiffs cannot establish that Ms. Matos failed to exercise due care or that Rabbi Kloner was,
at the moment he fell, relying on Ms. Matos.”); id. at 15 (“[T]here is no basis to presume that
Rabbi Kloner’s solo walk across the stage was an inherently risky activity that would require Ms.
Matos’ continued presence.”).) In the July 21, 2016 Decision, the Court expressly considered
and rejected Defendant’s argument that, as a matter of law, Rabbi Kloner did not detrimentally
rely on Matos’ instructions or direction. Kloner, --- F. Supp. 3d at ---, 2016 WL 3962975, at *9
(“Defendant argues that Cohen is inapposite because ‘Matos did not direct Rabbi Kloner to walk
up the stage staircase by himself, nor did Matos inform Rabbi Kloner that the safest route to the
stage was the stage staircase.’”). As explained above, a motion for reconsideration is not “an
occasion for repeating old arguments previously rejected,” Simon, 18 F. Supp. 3d at 425, and
Defendant’s attempt to revive failed arguments with increased force does not merit the Court’s
reconsideration.
2.

Defendant has not identified controlling law that the Court
overlooked

Separately, Defendant appears to argue that the Court should reconsider the July 21, 2016
Decision because Tavarez is more instructive than the cases to which the Court cited. (Def.
Mem. 13–14.) “A mere disagreement with the Court’s legal determination is not a valid basis for
reconsideration.” E.E.O.C. v. Bloomberg L.P., 751 F. Supp. 2d 628, 651 (S.D.N.Y. 2010); see
also Lolonga-Gedeon v. Child & Family Servs., 144 F. Supp. 3d 438, 441 (“Defendant’s

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disagreement with the Court’s reading [of a case] is not a basis for reconsideration.”);
R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 512 (S.D.N.Y. 2009) (“A party’s fundamental
disagreement with a court’s legal analysis and conclusions as to a matter fully considered does
not serve as sufficient ground to warrant reconsideration of the court’s decision.”); Mikol v.
Barnhart, 554 F. Supp. 2d 498, 502 (S.D.N.Y. 2008) (“Plaintiff’s ‘disagreement’ with our prior
determination is not an appropriate ground for reconsideration.” (citation omitted)); Alzamora v.
Village of Chester, 534 F. Supp. 2d 436, 439 (S.D.N.Y. 2008) (“The movant’s disagreement with
the court’s interpretation of precedent is not a proper ground for reconsideration.”).
In the July 21, 2016 Decision, the Court relied on Tavarez for a clear statement of the
assumption-of-duty doctrine but found several other cases more factually analogous.
Kloner, --- F. Supp. 3d at ---, 2016 WL 3962975, at *8–10. Defendant can disagree with the
Court, but such disagreement is not a basis for reconsideration. See Bloomberg, 751 F. Supp. 2d
at 651.
III. Conclusion
For the foregoing reasons, the Court denies Defendant’s motion for reconsideration.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: October 11, 2016
Brooklyn, New York

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