Allstate Insurance Company v. Long Island Power Authority et al

Filing 24

MEMORANDUM & ORDER granting in part and denying in part 13 Motion to Strike; For the foregoing reasons, Allstate's motion to strike Defendants' affirmative defenses (Docket Entry 13) is GRANTED IN PART and DENIED IN PART. The motion to strike is GRANTED with respect to the Third, Fifth, Sixth, and Seventh Affirmative Defenses. The motion is DENIED with respect to the First, Second, and Fourth Affirmative Defenses. So Ordered by Judge Joanna Seybert on 2/27/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
ALLSTATE INSURANCE COMPANY as subrogee
of LAWRENCE F. DOOLING AND BARBARA A.
DOOLING,
Plaintiff,
MEMORANDUM & ORDER
14-CV-0444(JS)(SIL)

-against-

LONG ISLAND POWER AUTHORITY, NATIONAL
GRID, and JOHN DOES 1-10 AND XYZ
ENTITIES 1-10,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Jeffrey Scott Matty, Esq.
Nelson Levine de Luca & Hamilton, LLC
One Battery Park Plaza, 32nd Floor
New York, NY 10004
Philip A. Davolos, Esq.
Raymond E. Mack, Esq.
de Luca Levine LLC
100 Church Street, 8th Floor
New York, NY 10007
For Defendants:

Tina Alyse Yanover, Esq.
Wade Thomas Dempsey, Esq.
Hammill, O’Brien, Croutier, Dempsey,
Pender & Koehler,
6851 Jericho Turnpike, Suite 250
Syosset, NY 11791

SEYBERT, District Judge:
Plaintiff Allstate Insurance Company (“Allstate”), as
subrogee of Lawrence and Barbara Dooling (the “Doolings”), brings
this

subrogation

action

against

defendants

Long

Island

Power

Authority (“LIPA”) and National Grid (collectively, “Defendants”),
seeking to recoup insurance proceeds that Allstate paid to the

Doolings

after

they

suffered

property

damage

contends was a result of Defendants’ negligence.

that

Allstate

Presently before

the Court is Allstate’s motion to strike Defendants’ affirmative
defenses.

(Docket

Entry

13.)

For

the

following

reasons,

Allstate’s motion to strike is GRANTED IN PART and DENIED IN PART.
BACKGROUND
This diversity action arises out of an electrical fire
that caused damage to the Doolings’ real and personal property
located in Hampton Bays, New York.

Allstate, which insured the

property, commenced this action against Defendants seeking to
recoup insurance proceeds that Allstate paid to cover the damage.
The

Complaint

alleges

that

Defendants

negligently

caused

the

electrical fire by failing to properly supply electricity to the
property.
Defendants
following

answered

affirmative

jurisdiction

(“First

the

defenses:
Affirmative

Complaint
(1)

lack

Defense”);

and
of

asserted

subject

(2)

the

matter

contributory

negligence (“Second Affirmative Defendant”); (3) that Defendants’
liability for non-economic damages is limited under Article 16 of
the New York Civil Practice Law and Rules, N.Y. C.P.L.R. §§ 160003 (“Third Affirmative Defense”); (4) failure to mitigate (“Fourth
Affirmative

Defense”);

(5)

spoliation

of

evidence

(“Fifth

Affirmative Defense”); (6) that Allstate’s claims are barred by
Leaf No. 27 of LIPA’s Tariff (“Sixth Affirmative Defense”); and
2

(7) failure to comply with the notice of claim requirements of New
York General Municipal Law §§ 50-e, 50-i and New York Public
Authorities Law § 1020-y (“Seventh Affirmative Defense”).
Docket Entry 6, ¶¶ 14-20.)
affirmative defenses.

(Ans.,

Allstate moves to strike all seven

(Docket Entry 13.)
DISCUSSION

The Court will first set forth the legal standard on a
motion

to

strike

before

turning

to

Allstate’s

motion

more

specifically.
I.

Legal Standard
Motions to strike are governed by Federal Rule of Civil

Procedure 12(f), which states that “[t]he court may strike from a
pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). Although
“Rule 12(f) motion[s are] left to the district court’s discretion,”
EEOC v. Bay Ridge Toyota, Inc., 327 F. Supp. 2d 167, 170 (E.D.N.Y.
2004), they are generally “disfavored and granted only if there is
a strong reason to do so,” Spiteri v. Russo, No. 12-CV-2780, 2013
WL

4806960,

at

*64

n.62

(E.D.N.Y.

quotation marks and citation omitted).
strike

an

affirmative

defense,

the

Sept.

7,

2013)

(internal

To prevail on a motion to
plaintiff

must

show

that

“‘(1) there is no question of fact which might allow the defense
to succeed; (2) there is no question of law which might allow the
defense to succeed; and (3) the plaintiff would be prejudiced by
3

inclusion of the defense.’”

Bernstein v. Mount Ararat Cemetery

Inc., No. 11-CV-0068, 2012 WL 3887228, at *9 (E.D.N.Y. Sept. 7,
2012) (quoting Houston v. Manheim-New York, No. 09-CV-4544, 2010
WL 744119, at *3 (S.D.N.Y. Mar. 3, 2010)).
II.

Allstate’s Motion to Strike
Allstate initially urges the Court to strike all of

Defendants’ affirmative defenses because they are “bald conclusory
assertions and Defendants have not alleged a single fact to support
them.”
This

(Pl.’s Br., Docket Entry 13-1, at 7 (emphasis omitted).)

argument

is

easily

dismissed.

As

this

Court

recently

explained in a different case, Federal Rule of Civil Procedure
8(c) governs the pleading of affirmative defenses and it only
requires
defense.

a

defendant

to

“affirmatively

FED. R. CIV. P. 8(c).

state”

an

affirmative

An affirmative defense need not

meet the Iqbal/Twombly plausibility standard. See Sibley v. Choice
Hotels Int’l, Inc., --- F. Supp. 3d ----, 2015 WL 149913, at *5-6
(E.D.N.Y. Jan. 7, 2015) (collecting cases).

In fact, a defendant

asserting an affirmative need not “plead any facts at all.”

Serby

v. First Alert, Inc., 934 F. Supp. 2d 506, 516 (E.D.N.Y. 2013).
Thus, a motion to strike is generally “determinable only after
discovery

and

a

hearing

on

the

merits,”

and

“[a]

court

may

therefore strike only those defenses so legally insufficient that
it is beyond cavil that defendants could not prevail upon them.”

4

Id. (internal quotation marks and citation omitted).

The Court

will now address each affirmative defense more specifically.
A.

First Affirmative Defense: Subject Matter Jurisdiction
The

Court

DENIES

Allstate’s

request

to

strike

Defendant’s First Affirmative Defense of lack of subject matter
jurisdiction.

Subject matter jurisdiction may be raised at any

time, even by the Court sua sponte.

Thus, even if subject matter

jurisdiction is not lacking in this case, striking this defense
would accomplish nothing.

See Brill v. Prudential-Bache Sec.,

Inc., No. 84-CV-0846, 1985 WL 8037, at *6 (S.D.N.Y. July 29, 1985)
(“Since the subject matter jurisdiction of the court may be raised
at any time, even by the court sua sponte, I do not understand
what striking the defense would accomplish.”); see also Raymond
Weil, S.A. v. Theron, 585 F. Supp. 2d 473, 489–90 (S.D.N.Y. 2008)
(“There is nothing dumber than a motion to strike boilerplate
affirmative defenses; it wastes the client’s money and the court’s
time.”).
B.

Second Affirmative Defense: Contributory Negligence
The

Court

also

DENIES

Allstate’s

request

to

strike

Defendant’s Second Affirmative Defense of contributory negligence.
Under New York law, “‘[i]t is the very essence of subrogation that
a subrogee stands in the shoes of the subrogor and is entitled to
all of the latter’s rights, benefits and remedies.’”

Liberty Mut.

Ins. Co. v. N. Picco & Sons Contracting Co., No. 05-CV-0217, 2008
5

WL 190310, at *11 (S.D.N.Y. Jan. 16, 2008) (alteration in original)
(quoting U.S. Fid. & Guar. Co. v. E.W. Smith Co., 46 N.Y.2d 498,
504, 387 N.E.2d 604, 605-06, 414 N.Y.S.2d 672, 674 (1979)). “Thus,
a subrogee acquires all of the rights, defenses and remedies of
the subrogor and is subject to any defenses or claims which may be
raised against the subrogor.”

Id. (emphasis added).

Here, if the

Doolings negligently caused the fire at issue, Defendants could
prevail on a contributory negligence defense as against Allstate.
The request to strike this defense is therefore DENIED.
C.

Third Affirmative Defense: Noneconomic Damages
The Court GRANTS Allstate’s request to strike the Third

Affirmative Defense, which alleges that Defendants’ liability for
noneconomic damages is limited under Article 16 of the New York
Civil Practice Law and Rules, N.Y. C.P.L.R. §§ 1600-03.

Because

Allstate is not seeking noneconomic damages, this defense is
inapplicable.
D.

Fourth Affirmative Defense: Failure to Mitigate
The

Court

DENIES

Allstate’s

request

to

strike

Defendants’ Fourth Affirmative Defense of failure to mitigate for
the same reasons that the Court denied Allstate’s request to strike
Defendants’ contributory negligence defense.
E.

Fifth Affirmative Defense: Spoliation of Evidence
The

Defendants’

Court

Fifth

GRANTS

Affirmative

Allstate’s
Defense
6

request

because

to

strike

spoliation

of

evidence is not an affirmative defense:

“[T]he spoliation rule

does not prevent recovery by the plaintiff; it merely leads to the
exclusion of evidence or to the admission of negative evidence.”
Sparta Ins. Co. v. Colareta, No. 13-CV-60579, 2013 WL 5588140, at
*6 (S.D. Fla. Oct. 10, 2013) (citing Donohoe v. Am. Isuzu Motors,
Inc., 155 F.R.D. 515, 520 (M.D. Pa. 1994)).
F.

Sixth Affirmative Defense: Leaf No. 27 of LIPA’s Tariff
Defendants’ Sixth Affirmative Defense relies on Leaf No.

27 of LIPA’s Tariff, which states in relevant part: “[LIPA] will
not be liable . . . [f]or interrupted, irregular, defective, or
failed service if the causes are beyond [LIPA’s] control or are
due to ordinary negligence of its employees or agents . . . .”
(Davolos Decl., Docket Entry 13-2, Ex. H.)

As explained below,

this defense must be stricken because it is inapplicable here.
Under Sections 65 and 66 of the New York Public Service
Law,

utility

companies

file

tariffs

with

the

Public

Service

Commission (the “PSC”), which set forth the terms and conditions
between the utility companies and their customers.
SERV. LAW §§ 65-66.
tariff”

limiting

See N.Y. PUB.

“Where . . . a public utility has a filed
its

liability

for

ordinary

negligence,

“no

liability will attach to the public utility unless it is found to
be grossly negligent.”

Lockwood v. Niagara Mohawk Power Corp.,

112 A.D.2d 495, 496, 491 N.Y.S.2d 211, 213 (3d Dep’t 1985).

7

Here, Leaf No. 27 insulates LIPA from liability arising
from

“interrupted,

irregular,

defective,

or

failed

service.”

However, in this case, Allstate seeks to hold LIPA liable for its
negligent supply of electricity, not an “interrupted, irregular,
defective, or failed service.” Thus, Leaf No. 27 is not applicable
here.

Nonetheless, even if the language of Leaf No. 27 covered

liability arising out of the supply of electricity, Section 281.1
of

the

PSC’s

regulations

prohibits

any

such

limitation

of

liability:
Every gas corporation, electric corporation
and gas and electric corporation shall, where
necessary, amend its filed tariff schedules by
eliminating therefrom:
. . .
(c)

Provisions limiting the liability of the
company for any damages resulting from
the
negligence
of
the
company
in
connection with the supplying or use of
electricity or gas or from the presence
or operation of the company’s structures,
equipment, wires, pipes, appliances or
devices on the consumer’s premises.

N.Y. COMP. CODES R. & REGS. tit. 16, § 218.1 (emphasis added); see
also Bowen v. Niagara Mohawk Power Corp., 183 A.D.2d 293, 295, 590
N.Y.S.2d 628, 630 (4th Dep’t 1992) (“[U]tility companies are not
absolved from liability for ordinary negligence claimed as the
result of the supply or use of electricity, as opposed to damages
caused by the interruption of the supply of service.” (alteration
and emphasis in original) (internal quotation marks and citation
8

omitted)).

Accordingly,

Allstate’s

claim

that

Leaf

LIPA

No.

27

negligently

is

not

applicable

supplied

to

electricity.

Allstate’s request to strike the Sixth Affirmative Defense is
therefore GRANTED.
G.

Seventh Affirmative Defense: Notice of Claim
Defendants’ Seventh Affirmative Defense alleges that

Allstate failed to serve a notice of claim as required under New
York General Municipal Law §§ 50-e, 50-i, and New York Public
Authorities Law § 1020-y.

Because Defendants have not responded

to Allstate’s arguments regarding this affirmative defense, the
Court deems this defense abandoned.

Jackson v. Odenat, No. 09-

CV-5583, 2014 WL 1202745 (S.D.N.Y. Mar. 24, 2014) (“[A]lthough
Plaintiffs challenged Defendants’ . . . affirmative defenses in
their moving papers, Defendants’ response provides no evidence nor
advances any arguments to support these defenses.

The Court thus

deems them abandoned.”); Summit Health, Inc. v. APS Healthcare
Bethesda, Inc., 993 F. Supp. 2d 379, 398 (S.D.N.Y. 2014) (“In light
of Defendant’s failure to respond to Plaintiff’s motion with
respect

to

duress,

abandoned.”).

the

Court

Accordingly,

deems

that

Allstate’s

affirmative

request

to

defense

strike

the

Seventh Affirmative Defense is GRANTED.
CONCLUSION
For the foregoing reasons, Allstate’s motion to strike
Defendants’ affirmative defenses (Docket Entry 13) is GRANTED IN
9

PART and DENIED IN PART.
respect

to

Defenses.

the

Third,

The motion to strike is GRANTED with
Fifth,

Sixth,

and

Seventh

Affirmative

The motion is DENIED with respect to the First, Second,

and Fourth Affirmative Defenses.

SO ORDERED.

/s JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Dated:

February
27 , 2015
Central Islip, NY

10