Ana Ruballos Martinez, Plaintiff, v. UG2 LLC (2026)

The following papers 1-3 were read and considered on this motion by Third-Party Defendant UG2, LLC, for an order pursuant to Civil Practice Law and Rules § 3212 granting summary judgment dismissing the third-party complaint, with prejudice, on the ground that there are no triable issues of fact against these moving Defendants; and for such other and further relief as this Court may deem just and proper:

PAPERS NUMBERS

Notice of Motion; Statement of Material Facts; Affirmation of Ryan W. Conboy, Esq., in Support; Memorandum of Law; AI Certification; Exhibits A—J; Affidavit of Service 1

Affirmation of Zachary A. A. Taylor, Esq., in Opposition; Response to Statement of Material Facts and Counterstatement; Affirmation of Brandon Munger, withExhibit 1 (Cleaning Service Agreement); Exhibits B— C 2

Affirmation of Ryan W. Conboy, Esq., in Reply; Certificate of Word Count; AI Certification; Affidavit of Service 3

Upon the foregoing papers, and for the reasons set forth below, the motion of third-party Defendant UG2, LLC ("UG2"), for an order pursuant to Civil Practice Law and Rules § 3212 granting summary judgment dismissing the Third-Party Complaint of Defendant/Third-Party Plaintiff Eklecco Newco, LLC, d/b/a Palisades Center ("Eklecco"), is DENIED.

BACKGROUND

I. The Accident

This is a premises liability action arising from a slip-and-fall that occurred on the evening of Saturday, Masrch 2, 2024, in the fourth-floor common area of the Palisades Center Mall in West Nyack, New York, near the entrance to the ice rink and the adjacent escalator. See NYSCEF Doc, Doc. 46, at p 23. Plaintiff Ana Ruballos Martinez testified at her deposition that she was walking toward the escalator with her children when she slipped on water on the floor. See NYSCEF Doc. No. 46, p. 24. She described the water as clear in a puddle that was about two (2) feet wide and testified that she did not see it until after she fell. See NYSCEF Doc. No. 25. She further testified that it had been "raining, very hard" that day, that the water was leaking "from above," and that she did not know whether the leak had just started or had been ongoing. See NYSCEF Doc. No. 46, Ruballos Martinez EBT at 35, 43—44.

The mall security incident report records the occurrence time as 7:50 p.m. and the weather as "48 Degree Rainy." See NYSCEF Doc. No. 49, p. 2. According to the report's narrative, Plaintiff came to the security dispatch office at approximately 8:10 p.m. to report the fall; a security officer accompanied her back to the fourth floor to confirm the location of the wet condition; emergency medical services were requested at 8:15 p.m.; and "[h]ousekeeping was called at 20:17, arriving to clean up the water on the floor and provide a bucket to catch the water leaking from the roof." See NYSCEF Doc. No. 49, p. 2.¹

Closed-circuit footage reviewed by security depicted Plaintiff approaching the wet area and then observed walking away from it. See NYSCEF Doc. No. 49, p. 2. According to the report neither of the two (2) cameras revied captured the Plaintiff falling. See NYSCEF Doc. No. 49, p. 2.

II. The Parties and the Cleaning Service Agreement

It is undisputed that Eklecco owned the Palisades Center on the date of the accident and that Pyramid Management Group, LLC ("Pyramid") was its managing agent. See NYSCEF Doc. No. 55, ¶ 34; NYSCEF Doc. No. 56, Brandon Munger ("Munger") Aff. ¶¶ 3—4. UG2 was the housekeeping contractor for the mall pursuant to a Cleaning Service Agreement ("Agreement") dated as of July 23, 2020, which identifies Eklecco as "Owner," UG2 as "Contractor," and Pyramid as "Manager," and which was in effect on March 2, 2024. See NYSCEF Doc. No. 57; NYSCEF Doc. No. 56, Munger Aff. ¶ 5.

Under the agreement, UG2 undertook to perform the specified services "on a fulltime basis (meaning on a 24 hours a day for each and every day during the Term of this Agreement)" NYSCEF Doc. No. 57, ¶ 1. The Housekeeping Service Specifications annexed as Exhibit B to the agreement provide, in relevant part, that "[t]he entire Common Area of the mall is to be policed and maintained on a continuous basis," that UG2 is to "[i]mmediately remove all spills, debris, litter or other hazards," and that "[w]et floor signs must be utilized whenever wet, damp, or slippery conditions exist." NYSCEF Doc. No. 57, Exhibit B, ¶ 1.

Article 11 of the Agreement contains an indemnification clause. See NYSCEF Doc. No. 57. Paragraph 11(a)(i) provides that UG2 "shall hold harmless, defend, and indemnify the Manager, the Owner and any other person or entity for whom the Manager or Owner are contractually obligated to indemnify . . . to the extent allowed by law," and paragraph 11(a)(ii) provides that the Owner and Manager shall not be indemnified "for that portion of liability that is due to the Manager's or Owner's own negligence." NYSCEF Doc. No. 57. Paragraph 11(b) provides, in pertinent part, that UG2 shall indemnify, defend and hold harmless the Manager and the Owner from and against all damages, claims, liabilities, losses, costs and expenses, including attorneys' fees: to the extent arising out of, attributable to, or incurred with respect to any accident, injury or damage . . . whatsoever caused to any person or property arising, directly or indirectly and whether by an negligent act or an omission, out of the Contractor's or any of the Contractor's employees, agents, subcontractors, suppliers or materialmen . . . performing or failing to perform the Services or otherwise acting in connection with the Terms and Conditions, or arising, directly or indirectly, out of the Contractor or the Contractor's Agents being on and in or using the Shopping Center (NYSCEF Doc. No. 57, ¶ 11[b]).

Article 12 requires UG2 to procure and maintain specified liability insurance and provides that "[a]ll such policies of insurance shall grant Manager and Owner additional insured status" and shall be endorsed as primary. See NYSCEF Doc. No. 57, ¶ 12[a], [b].

III. The Deposition Testimony

Duvan Grisales, UG2's account manager at the Palisades Center from November 2021 until UG2's departure in early 2025, testified that UG2 was responsible for the general cleaning of the mall's common areas but was not responsible for repairs or for maintaining the roof. See NYSCEF Doc. No. 47, p. 9, 10-11; See NYSCEF Doc. No. 47, Grisales EBT at 8—11. He testified that there were "30-plus leaks" on the fourth floor in or around March 2024, that he had observed roof leaks "since day one" of his tenure (2021), that the roof leaked through both its glass and solid portions, that there was never a period during which the roof did not leak in inclement weather, and that he complained verbally to the maintenance staff and to the operations director and security about the leaks to mall personnel "[d]aily" whenever it rained or there was "inclement weather." See NYSCEF Doc. No. 47, p 12—14, 17).

Upon being shown photographs of the accident location, Mr. Grisales answered "Yes" when asked whether he had "any specific recollection as to a leak in the area of where that garbage can is or that yellow square immediately next to the escalator and in front of the entrance to the ice rink." NYSCEF Doc. No. 47, p. 21. He testified that this spot "leaked whenever there was rain in that area," and sometimes in the summer because an HVAC unit sits directly above it, and that the last leak he recalled there before the accident was approximately one month earlier. See NYSCEF Doc. No. 47, p 21—22. He further testified that, when it rained, UG2 would "go up to the fourth floor in that area where that bucket is and see if there was any active leaks at that time, because that area is prone for leaks," and that he would direct UG2 employees to that area when it rained, although no documentation of such directions exists and a bucket would be placed only once an active leak was found. See NYSCEF Doc. No. 47, p 26— 28.

As to staffing, Mr. Grisales testified that at around 8:10 p.m. UG2 would have had six or seven employees on site, with one employee assigned to each floor; that he did not recall who was assigned to the fourth floor on the evening of the accident; that floor assignments were made informally depending on who reported to work; and that the assigned employee's duty was to roam the floor looking for spills or conditions requiring attention. See NYSCEF Doc. No. 47, p 22—23. The assigned employee was "supposed to walk within every hour at least from side to side," and a full circuit of the floor would take 30 to 40 minutes depending on whether the employee stopped to address spills. See NYSCEF Doc. No. 47, p 37—38. When asked whether, given an accident at 7:50 p.m., the fourth-floor employee would have walked the floor at 7:00 p.m., Mr. Grisales responded only that such a walk was "expected." NYSCEF Doc. No. 47, p 38—39. He acknowledged that there is no sign-in or other record demonstrating that an employee actually traversed his or her assigned floor, and the wet spill logs produced in discovery for the week of the accident contained no entries for the fourth floor and no log for the fourth floor on the second shift; he attributed the gaps to employees losing or failing to complete the logs. See NYSCEF Doc. No. 47, p 28—37.

Darrin Houseman, Pyramid's general manager of the Palisades Center at the time of the accident, testified that UG2 was the mall's housekeeping contractor, that inspection and repair of the roof were Pyramid's responsibility, that UG2 had no involvement in roof maintenance, and that he was unaware of any complaints about leaks in the accident area before the accident. See NYSCEF Doc. No. 48, Houseman EBT at 13—18.

IV. Procedural History

Plaintiff commenced this action against Eklecco on or about August 2, 2024, and Eklecco answered on or about September 6, 2024. On March 14, 2025, Eklecco served a Third-Party summons and complaint on UG2 asserting three (3) causes of action: (1) common-law indemnification and contribution; (2) contractual indemnification under the Cleaning Service Agreement; and (3) breach of the agreement to procure insurance naming Eklecco as an additional insured. See NYSCEF Doc. No. 43. UG2 answered on or about April 1, 2025. Plaintiff filed the Note of Issue on May 12, 2026, and UG2 filed this motion on September 9, 2026, within the one hundred twenty (120) day period prescribed by Civil Practice Law and Rules § 3212(a). Plaintiff has not taken a position on the motion.

DISCUSSION

UG2 contends that it is entitled to summary judgment dismissing the Third-Party Complaint because it neither created nor had actual or constructive notice of the water condition. It argues that it was not responsible for the roof; that its general awareness that roof leaks occurred at various locations on the fourth floor does not constitute notice of the particular leak at issue; that the incident report establishes that UG2 was not notified of the condition until after the accident; and that there is no evidence of when the leak began or how long the water was on the floor before plaintiff fell. UG2 further contends that it did not assume responsibility for discovering roof leaks and that instead it responded appropriately once notified. See NYSCEF Doc. Nos. 38, 39.

Eklecco opposes, contending that UG2 failed to meet its prima facie burden because it offered no evidence as to when the accident location was last inspected and relied instead on gaps in Eklecco's proof; that Mr. Grisales's testimony establishes UG2's actual knowledge of a recurring leak at the precise accident location whenever it rained, which constitutes constructive notice of each recurrence; and that, in any event, UG2's motion does not address Eklecco's contractual indemnification claim, which survives as a matter of contract. See NYSCEF Doc. No. 54.

In reply, UG2 maintains that Eklecco conflates general knowledge of roof leaks with notice of the specific water condition; emphasizes that, with more than thirty (30) leak locations and one (1) employee assigned to the floor, it could not anticipate which location would leak at a particular time; and reiterates that the roof was the owner's responsibility. See NYSCEF Doc. No. 60.

I. Summary Judgment

The proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]. Failure to make that showing requires denial of the motion, "regardless of the sufficiency of the opposing papers." Winegrad, 64 NY2d at 853. Only if the movant meets its burden does the burden shift to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial. See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. The evidence must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), and the court's function is issue-finding, not issue-determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

II. The Negligence-Based Claims for Contribution and Common-Law Indemnification

A party moving for summary judgment in a slip-and-fall case bears the initial burden of demonstrating, prima facie, that it neither created the allegedly dangerous condition nor had actual or constructive notice of it for a sufficient length of time to discover and remedy it. To constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it. See Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986])

A general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's fall. See Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; See also Ellisy v Eklecco, LLC, 56 AD3d 517, 517—518 [2d Dept 2008]. However, "[e]ven absent proof that a defendant has actual knowledge of the condition on the date of the accident, a defendant's actual knowledge of the recurrent condition constitutes constructive notice of each specific recurrence of it." Erikson v J.I.B. Realty Corp., 12 AD3d 344, 345 [2d Dept 2004].

Further, to meet its initial burden on the issue of lack of constructive notice, the moving party must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. See Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598—599 [2d Dept 2008]. Reference to general cleaning or inspection practices, without evidence of when the specific area was actually inspected, is insufficient, and a movant cannot carry its burden merely by pointing to gaps in its opponent's proof.

A. Creation of the Condition

UG2 has established that it did not create the roof leak that was the source of the water. The undisputed testimony of both Mr. Grisales and Mr. Houseman is that UG2 had no responsibility for inspecting, maintaining or repairing the roof. That showing, however, does not dispose of the Third-Party claims. Eklecco's theory is not that UG2 caused the roof to leak, but that UG2, which had contractually undertaken to police the common area "on a continuous basis" and to "[i]mmediately remove all spills . . . or other hazards," failed to discover and remedy the water that accumulated on the floor. The relevant question, therefore, is whether UG2 had notice of the water condition on the floor.

B. Constructive Notice.

UG2 has failed to establish, prima facie, that it lacked constructive notice of the condition. UG2 offered no evidence as to when the accident location was last inspected or cleaned before plaintiff fell at approximately 7:50 p.m. Mr. Grisales did not know which UG2 employee was assigned to the fourth floor that evening, and his testimony established only what that employee was "supposed" or "expected" to do, namely, walk the floor at least once an hour. He conceded that no record exists to show whether the employee actually did so, and the spill logs produced for the relevant week contain no fourth-floor entries at all. Testimony describing general practices, unaccompanied by evidence that those practices were followed in the accident area on the day of the accident, is insufficient to sustain UG2's burden. See Birnbaum, 57 AD3d at 598—599.

Moreover, UG2's own submissions raise, rather than eliminate, a triable issue of fact as to constructive notice under the recurring-condition doctrine. This is not a case in which the movant had only a "general awareness" that leaks occurred somewhere in a large building. See cf. Piacquadio, 84 NY2d at 969; Ellisy, 56 AD3d at 517—518 [records of leaks in other areas insufficient to establish notice of the particular leak]. Mr. Grisales testified that he had a specific recollection of leaks at the very spot where Plaintiff fell; that this spot leaked "whenever there was rain"; that the last such leak he recalled was about a month before the accident; and that, precisely because the area was "prone for leaks," UG2 would check it for active leaks when it rained.

The record contains evidence that it was raining heavily on the day of the accident, as reflected in both Plaintiff's testimony and the incident report. Viewed in the light most favorable to Eklecco, this evidence would permit a factfinder to conclude that UG2 had actual knowledge of a recurring, location-specific and weather-dependent hazard and may therefore be charged with constructive notice of its recurrence on March 2, 2024. See Erikson, 12 AD3d at 345.

UG2's remaining arguments do not alter this result. The fact that Plaintiff described the water as clear and did not see it before she fell does not establish how long it had been present, and the absence of evidence as to when the leak began is against UG2, as the movant, rather than in its favor.² Likewise, UG2's contention that it could not reasonably monitor more than thirty (30) potential leak sites with a single employee assigned to the floor raises, at most, a question as to the reasonableness of UG2's conduct under the circumstances, which is for the trier of fact. That contention is also in tension with Mr. Grisales's testimony that UG2 specifically identified the accident location as one to be checked when it rained, and with UG2's contractual undertaking to police the common area on a continuous, around-the-clock basis.

C. Actual Notice

Because UG2 failed to eliminate triable issues of fact as to constructive notice, the Court need not definitively resolve whether UG2 established a lack of actual notice. The Court notes, however, that the incident report establishes only when security called housekeeping after plaintiff reported her fall; it does not establish whether the UG2 employee assigned to the fourth floor had observed the water at any earlier time. UG2 submitted no testimony from that employee or from any person with knowledge of what UG2 personnel observed on the fourth floor that evening, and Mr. Grisales, who did not learn of the accident until several days later, could not supply that information.

Accordingly, UG2 has failed to establish its prima facie entitlement to judgment as a matter of law dismissing the claims for contribution and common-law indemnification, and that branch of the motion must be denied without regard to the sufficiency of the opposing papers. See Winegrad, 64 NY2d at 853. In any event, for the reasons stated above, the record would raise a triable issue of fact even if the burden had shifted.³

III. The Contractual Indemnification Claim

"A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances." Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987] [internal quotation marks omitted]. Indemnification agreements are strictly construed. See Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]. Where an indemnification clause expressly limits the indemnitor's obligation to the extent permitted by law, the indemnitee may obtain partial indemnification for that portion of the liability not attributable to its own negligence. See Brooks v Judlau Contr., Inc., 11 NY3d 204, 210 [2008].

UG2's moving papers do not address the contractual indemnification cause of action or the Cleaning Service Agreement at all. Having made no showing with respect to that claim, UG2 has not established its entitlement to judgment dismissing it. See Winegrad, 64 NY2d at 853. Moreover, the indemnification obligation under paragraph 11(b) extends to claims arising, directly or indirectly, out of UG2's "performing or failing to perform the Services," which include policing the common area and immediately removing spills and other hazards. Given the triable issues of fact as to whether UG2 failed to perform those services on the evening of the accident, and as to the extent, if any, of Eklecco's own negligence with respect to the roof (which, under paragraph 11[a][ii] and paragraph 11[b] of the Agreement, would limit the scope of any indemnification), the contractual indemnification claim cannot be resolved as a matter of law at this juncture. UG2's argument in reply that the roof was Eklecco's responsibility is based on the apportionment of fault and the extent of any indemnification, not on whether the claim may be dismissed outright.

IV. The Claim for Breach of the Agreement to Procure Insurance

An agreement to procure insurance is distinct from an agreement to indemnify, and a claim for breach of an insurance procurement provision does not depend upon a finding of negligence on the part of the promisor. See Kinney v G.W. Lisk Co., 76 NY2d 215, 218 [1990]; See also Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111, 114 [2001]). Article 12 of the Cleaning Service Agreement requires UG2 to procure liability insurance granting the Owner additional insured status. See NYSCEF Doc. No. 57, p. 9. UG2 submitted no evidence, such as the policy or a certificate of insurance, demonstrating that it complied with that obligation, and its papers do not otherwise address this cause of action. UG2 has therefore failed to establish its entitlement to summary judgment dismissing it.⁴ The Court has considered the parties' remaining contentions and finds them to be without merit or unnecessary to reach in light of the foregoing determination.

Accordingly, it is hereby

ORDERED that the motion of third-party defendant UG2, LLC for an order pursuant to CPLR 3212 granting summary judgment dismissing the third-party complaint of defendant/third-party plaintiff Eklecco Newco, LLC, d/b/a Palisades Center, is DENIED in its entirety; and it is further

ORDERED that counsel for the parties shall appear for a pretrial conference in Part 3 of this Court, Rockland County Courthouse, 1 South Main Street, New City, New York, on November2026, at 9:30 a.m.; and it is further

ORDERED that counsel for Defendant/Third-Party Plaintiff shall serve a copy of this Decision and Order with notice of entry upon all parties within 10 days of entry.

The foregoing constitutes the Decision and Order of the Court as to Motion Seq. No. 1.

Dated: November 2, 2026

New City, New York

Hon. John P. Collins Jr, J.S.C.

FOOTNOTES

1.   UG2's memorandum states that a UG2 employee arrived at approximately 8:23 p.m. The incident report (see NYSCEF Doc. No. 49) records that housekeeping was called at 8:17 p.m. and that Nyack EMS arrived at 8:22 p.m.; it does not state the time at which housekeeping arrived. The discrepancy is immaterial to the disposition of this motion.

2.   UG2's memorandum and reply characterize Plaintiff as having testified that the water bore no footprints or dirt marks. The portions of Plaintiff's deposition transcript submitted on this motion (see NYSCEF Doc. No. 46) reflect that plaintiff described the water as clear and stated that she did not see it before she fell, but the Court has not located testimony regarding footprints or dirt marks. In any event, for the reasons that follow, the appearance of the water does not cure the absence of evidence as to when the area was last inspected.

3.   UG2 does not contend that,s as a contractor, it owed no duty of care to plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]), and the Court does not reach any such argument. The sole ground advanced for dismissal of the negligence-based claims is lack of notice.

4.   Defendant/Third-Party Plaintiff did not cross-move for summary judgment on its contractual indemnification or insurance-procurement claims, and the Court therefore makes no determination as to its entitlement to affirmative relief on those claims (see Civil Practice Law and Rules § 2215).

John P. Collins, Jr., J.