The following e-filed documents, listed by NYSCEF as: 311-366 were read on the motion by the second third-party defendant Long Island Soccer Football League, Inc. dismissing the second third-party complaint, and the cross-motion by the defendant/second third-party plaintiff United States Soccer Federation, Inc. for summary judgment on the second third-party complaint.

Upon the foregoing papers it is ordered that the motion and cross-motion are consolidated for the purpose of a single order and are determined as follows:

In this action, the complaint alleges that the plaintiff was a registered player for the College Point Flames, an amateur team associated with the second third-party defendant Long Island Soccer Football League (the League), and that he sustained injuries on September 22, 2019, during a League-affiliated soccer game between the College Point Flames and the Oyster Bay Park team. The complaint further alleges that the defendant Isaias Gomez-Gamboa (Gamboa) was a player for the Oyster Bay Park team, and that at approximately 8:30 p.m., Gamboa struck and kicked the Plaintiff on, among other places, the right side of his face, eye and nose, causing him to sustain serious, severe, and permanent injuries during the game.

As set forth in the complaint, the theory of liability against many of the defendants is based on the premise that Gamboa was negligently permitted to play for the Oyster Bay Park team during the September 22, 2019 soccer game. For example, the complaint alleges that the defendant Jose Abarca (Abarca) was the head coach of the Oyster Bay Park team and that as the head coach, he was responsible for, among other things, presenting a legal team roster and valid League passes for the players on the Oyster Bay Park soccer team to the referee prior to the commencement of the game. The complaint further alleges that the defendant United States Soccer Federation (the Federation) was responsible for training and certifying referees such as the defendant Damir Culum, but that the Federation failed to properly train him. To this end, the complaint alleges that Culum was a referee for the September 22, 2019 soccer game and that as a referee, he was responsible for reviewing the team rosters and inspecting the League passes for all players that would participate in the September 22, 2019 soccer game to make sure each player was eligible to play, had a League pass, and was listed on the team's roster. However, according to the complaint, Gamboa was an "unregistered" player who, despite his absence from the Oyster Bay Park team roster and lack of a League pass, was nevertheless permitted to play in the September 22, 2019 soccer game.

As is relevant here, following joinder of issue, the Federation commenced a second third-party action against the League, asserting claims for breach of contract, contractual indemnification, common-law indemnification, and contribution. The instant motion and cross-motion concern these claims.

In support of its motion for summary judgment, the League submits, among other things, the pleadings, the transcripts from the depositions of the plaintiff, Culum, and Gamboa, the transcript from the deposition of non-party witness Joseph Brosi, the head coach for the College Point Flames and the vice president of the League, the transcripts from the depositions of Yuri Fishman and Rocco Avallone, witnesses for the League, the transcript from the deposition of Greg Fike, a witness for the Federation, the affirmation [*2]of Joseph Brosi, and a blank copy of an "Assumption and Acknowledgment of Risks and Release of Liability Agreement" (the waiver). Based on these submissions, the League argues that it is entitled to summary judgment dismissing the second third-party claims for breach of contract and contractual indemnification because the deposition testimony demonstrates that there was no contract between the Federation and the League. To the extent that the allegations in the second third-party complaint rely upon the waiver, the League argues that the plain language of this document demonstrates that it does not create a contractual obligation between the Federation and the League. The League further asserts that it is entitled to summary judgment dismissing the second third-party claims for common-law indemnification and contribution because the plaintiff's claims against the Federation do not contemplate vicarious liability against the Federation for the League's conduct. On this point, the League asserts that it did not breach any duty to the plaintiff because it was not responsible for supervising or training soccer referees, including Culum, and the series of events which led to the plaintiff's injuries were entirely unforeseeable.

In opposition to the League's motion and in support of its cross-motion, the Federation submits, among other things, the pleadings, the transcripts from the depositions of the plaintiff, Culum, Gamboa, Brosi, Fishman, Avallone, and Fike, a copy of the League constitution, and a report prepared by William D. Squires, the Federation's sports and entertainment and events management expert. Based on these submissions, the Federation asserts that it is entitled to summary judgment on its second third-party claims for breach of contract and contractual indemnification because the waiver required the League to defend and indemnify the Federation under these circumstances, which it failed to do despite the Federation's demand to tender a defense. With respect to the common-law indemnification and contribution claims, the Federation contends that the League breached a duty to the plaintiff by failing to provide a safe playing environment for the plaintiff and mishandling players' League passes. The Federation also notes that the League had prior notice of an incident involving the Oyster Bay Park team that occurred one week prior to the September 22, 2019 soccer game but breached a duty to the plaintiff by nevertheless permitting the Oyster Bay Park team to participate in League games after this incident.

"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (223 SAM, LLC v 223 15th St., LLC, 210 AD3d 733, 734-735 [2d Dept 2022]). In addition, a party's right to contractual indemnification is dependent on the specific language of the contract (see O'Donnell v A.R. Fuels, Inc., 155 AD3d 644, 645 [2d Dept 2017]). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2d Dept 2009]; see Shea v Bloomberg, L.P., 124 AD3d 621, 622 [2d Dept 2015]). Thus, a moving party may establish prima facie entitlement to summary judgment dismissing claims for breach of contract and contractual indemnification by demonstrating that there was no contract between [*3]the parties (see KTG Hosp., LLC v Cobra Kitchen Ventilation, Inc., 201 AD3d 710, 711 [2d Dept 2022]; Rivera v 203 Chestnut Realty Corp., 173 AD3d 1085, 1087 [2d Dept 2019]).

The parties' submissions demonstrate that this is the case here. The Brosi affirmation and Fike's deposition testimony submitted in support of the League's motion demonstrate that there was no contractual relationship between the League and the Federation. As set forth in the deposition testimony, the structural hierarchy within organized soccer in the United States is as follows: the League is a member organization of the Eastern New York State Soccer Association, which is a member organization of the United States Adult Soccer Association, which is a member organization of the Federation. However, there is no direct link, contractual or otherwise, between the Federation and the League.

The evidence submitted by the Federation in opposition to the League's motion and in support of its cross-motion do not alter this analysis. As an initial matter, in his expert report, Squires concedes that there was no contract between the Federation and the League. Moreover, to the extent that the Federation relies upon the waiver to assert that the League must indemnify and tender a defense to the Federation, this reliance is misplaced. The waiver sets forth the following:

"In consideration of being allowed to participate in any way for the United States Adult Soccer Association, Inc., [i]ts Affiliates, Leagues, and Member Teams, its related events and activities, the undersigned, acknowledges, appreciates, and agrees that:

1) The risk of injury from the activities involved in this program is significant, including the Potential for permanent paralysis and death, and while particular rules, equipment, and Personal discipline may reduce this risk, the risk of serious injury does exist; and,

2) I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and Assume full responsibility for my participation; and,

3) I willingly agree to comply with the stated and customary terms and conditions for Participation[.] If, however, I observe any unusual significant hazard during my presence or Participation, [I] will bring such to the attention of the nearest official immediately; and

4) I, for myself and on behalf of my heirs, assign, personal representatives and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS the United States Adult Soccer Association, Inc. It's [sic] Affiliates, Leagues and Member Teams, their officers, Officials, agents and/or employees, other participants sponsoring agencies, sponsors,

Advertisers, and, if applicable, owners and lessors of premises used to conduct the event ("Releases"), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, [*4]or loss Or [sic] damage to person or property, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law. I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK

AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT" (NY St Cts Elec Filing [NYSCEF] Doc No. 340).

There is also a section where the participant can sign and date the waiver in acknowledgment of its terms. However, the waiver is devoid of language, either explicit or implicit, which supports the Federation 's argument that the waiver represents an indemnification agreement between the League and the Federation. This being the case, the League is entitled to summary judgment dismissing the second third-party claims for breach of contract and contractual indemnification.

"A party's right to indemnification may arise from a contract or may be implied 'based upon the law's notion of what is fair and proper as between the parties' " (Castillo v Port Auth. of New York, 159 AD3d 792, 795 [2d Dept 2018], quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). "[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is 'a separate duty owed the indemnitee by the indemnitor' " (Raquet v Braun, 90 NY2d 177, 183 [1997], quoting Mas, 75 NY2d at 690). " 'The predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, that is, the defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious' " (De Heras v Avant Gardner, LLC, 224 AD3d 883, 884 [2d Dept 2024], quoting Santoro v Poughkeepsie Crossings, LLC, 180 AD3d 12, 16 [2d Dept 2019]). "In the 'classic indemnification case,' the one seeking indemnity 'had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party' " (Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 646 [1988], quoting D'Ambrosio v City of New York, 55 NY2d 454, 461 [1982]).

" 'In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident' " (Cando v Ajay Gen. Contr. Co. Inc., 200 AD3d 750, 752 [2d Dept 2021], quoting Mohan v Atlantic Ct., LLC, 134 AD3d 1075, 1078-1079 [2d Dept 2015]). Conversely, "[a] potential indemnitor is entitled to summary judgment dismissing a claim for common-law indemnification where the evidence demonstrates that the underlying injured party's accident was not solely due to its negligent performance or nonperformance of an act solely within its province" (Meadowbrook Pointe Dev. Corp. v F&G Concrete & Brick Indus., Inc., 214 AD3d 965, 969 [2d Dept 2023]).

Similarly, "[t]o sustain a third-party cause of action for contribution, a third-party [*5]plaintiff is required to show that the third-party defendant owed it a duty of reasonable care independent of its contractual obligations, or that a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries" (Guerra v St. Catherine of Sienna, 79 AD3d 808, 809 [2d Dept 2010]; see Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 197 AD3d 1274, 1281 [2d Dept 2021]). "The critical requirement . . . is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). A party moving for summary judgment dismissing a third-party cause of action for contribution establishes its prima facie entitlement to judgment as a matter of law by demonstrating that it did not owe or breach a duty of reasonable care to the plaintiff, or a duty of reasonable care independent of its contractual obligations (Carrillo v 457-467 Atl., LLC, 193 AD3d 911, 913 [2d Dept 2021]).

"Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants' conduct" (Danielenko v Kinney Rent A Car, Inc., 57 NY2d 198, 204 [1982]). Thus, "[w]hether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful" (Danielenko, 57 NY2d at 204). In their moving papers, the Federation and the League both contend that Gamboa's spontaneous attack on the plaintiff was entirely unforeseeable. The Federation's expert also concedes this point in his report. Therefore, to the extent that the Federation argues that the League breached a duty to the plaintiff by failing to maintain field safety and mishandling players' League passes, the Federation failed to demonstrate that the plaintiff's injuries were a reasonably foreseeable consequence of the League's alleged failure to prevent an unregistered player from participating in the September 22, 2019 soccer game. On this point, the deposition testimony of the various witnesses demonstrates that the League did not receive any complaints regarding Culum, Abarca, or Gamboa prior to the September 22, 2019 soccer game.

This finding, however, does not end the inquiry, as the Federation also asserts that the League breached a duty of reasonable care to the plaintiff by failing to prevent player misconduct after receiving notice of a prior incident involving the Oyster Bay Park team. In support of the contention that the League owed a duty to the plaintiff, the Federation points to Chapter VII, Section 6 of the League constitution, which states, in relevant part, that "[a]ny team or club demonstrating poor conduct on or off the field may be subject to suspension by a majority vote of the general body. In extreme cases, the Executive Committee may postpone that team's games until such vote may be taken" (NY St Cts Elec Filing [NYSCEF] Doc No. 341). Nevertheless, the evidence submitted in support of the motion and cross-motion raise issues of fact as to whether the League owed or breached a duty of reasonable care to the plaintiff and whether the plaintiff's injuries are solely due to the League's negligence in permitting the Oyster Bay Park team to play League-affiliated games after receiving notice of the prior incident (see Meadowbrook Pointe Dev. Corp., 214 AD3d at 969-970). Fishman testified that there was a separate incident involving the Oyster Bay Park team that occurred one week before the September 22, 2019 soccer game and explained that because there were incidents involving the [*6]Oyster Bay Park team in back-to-back weeks, the team was suspended after the September 22, 2019 soccer game. However, Fishman indicated that he could not recall the details of the prior incident, and the Federation failed to submit evidence in admissible form which details the prior incident. Thus, it cannot be determined, one way or another, whether the alleged prior incident placed a duty upon the League and whether said duty was breached. Therefore, the League and the Federation both failed to establish prima facie entitlement to summary judgment.

Accordingly, the branches of the League's motion for summary judgment dismissing the second third-party claims for breach of contract and contractual indemnification are granted, and all other relief not expressly granted herein is denied.