Utica Mutual Insurance Company v. Diamond Realty Enterprises Corp. fka Diamond View Realty Inc.

Outcome: Action dismissed at trial

Description: Rose Gambino slipped and fell on ice on property owned by Utica Mutual’s insured, Shaker Commons. She sued Shaker Commons and their property manager, Diamond Realty. Gambino was awarded a default judgment against Shaker Commons, and Utica Mutual ultimately settled with her. However, it was agreed between all parties that Utica Mutual could seek to recover all or part of its payment to Gambino from Diamond Realty on the theory that Gambino’s fall had been caused by Diamond Realty’s negligent failure to maintain the premises and clear the ice on which she had fallen. The case proceeded to trial before a jury in Albany County. At the close of the plaintiff’s case the defendant moved for a directed verdict on the grounds that (1) there was no proof of any negligence by Diamond Realty because it had no actual or constructive notice of any ice in the area where Gambino had fallen, (2) Diamond Realty had no duty to Shaker Commons beyond the snow and ice removal contract, and there was no claim of breach of contract and no proof of any negligence which was independent of the contractual duties, and (3) under the contract with Shaker Commons, Diamond Realty was an additional insured under the Utica Mutual policy, and the action by Utica Mutual was barred by the anti-subrogation doctrine. The motion was granted and the action was dismissed.