13 State Street LLC v. Acadia Insurance Company

Filing 45

MEMORANDUM-DECISION and ORDER granting 34 Motion for Summary Judgment; denying 33 Motion for Summary Judgment: ORDERED that 1. Defendant Acadia Insurance Companys motion for summary judgment is GRANTED; 2. Plaintiff 13 State Street LLCs motion for summary judgment is DENIED; and 3. Plaintiff 13 State Street LLCs complaint is DISMISSED. IT IS SO ORDERED. Signed by Judge David N. Hurd on 5/9/2022. (khr)

Case 1:20-cv-00077-DNH-DJS Document 45 Filed 05/09/22 Page 1 of 16

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------13 STATE STREET LLC,
Plaintiff,
v.

No. 1:20-cv-77

ACADIA INSURANCE COMPANY,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

RUPP BAASE PFALZGRAF
CUNNINGHAM LLC
Attorneys for Plaintiff
1600 Liberty Building
Buffalo, New York 14202

JAMES J. GRABER, ESQ.
MARCO CERCONE, ESQ.

GOLDBERG SEGALLA LLP
Attorneys for Defendant
665 Main Street
Buffalo, New York 14203

SHARON ANGELINO, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM-DECISION and ORDER

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INTRODUCTION
This is an insurance dispute between plaintiff 13 State Street LLC (“State
Street” or “plaintiff”) and defendant Acadia Insurance Company (“Acadia” or
“defendant”) over coverage for loss related to water damage at a property
located at 13 State Street, Schenectady, New York (the “Property”).
On January 1, 2020, State Street filed a one-count complaint bringing a
claim for breach of contract stemming from the parties’ disagreement over
coverage. Dkt. 1. Acadia answered on February 19, 2020, asserting
numerous affirmative defenses. Dkt. 5.
On January 18, 2022, State Street moved for summary judgment. Dkt. 33.
Rather than cross-move, Acadia filed its own motion for summary judgment
on January 21, 2022. Dkt. 34. These motions have been fully briefed and the
Court will consider them on the basis of the submissions without oral
argument.
BACKGROUND 1
Acadia issued insurance policies to State Street with effective dates of
May 17, 2016 through November 17, 2017, and November 17, 2017 through
November 17, 2018 (together the “Policy”). Dkt. 33-13, Plaintiff’s Statement
of Material Facts (“PSMF”), ¶ 1. The Policy covered the Property that
The following facts are drawn from the parties’ statements of undisputed material facts and
responses pursuant to Local Rule 7.1(a)(3), to the extent those facts are well-supported by pinpoint
citations to the record, as well as the exhibits attached thereto and cited therein.
1

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plaintiff and its related entities were renovating, which is a former YMCA
building dating back to the 1920’s. Id. ¶¶ 2-3. The Policy afforded certain
Rehabilitation and Renovation coverage to State Street for the Property,
subject to certain limitations, conditions, and exclusions. Dkt. 34-17,
Defendant’s Statement of Material Facts (“DSMF”), ¶ 4. 2 Relevant here, “[i]n
case of a loss,” the Policy required State Street to “give ‘us’ or ‘our’ agent
prompt notice including a description of the property involved.” Dkt. No. 34-2
at 63.
Given the Property’s age and history, State Street was required to, and
did, submit a Historic Preservation Certification Application (the
“Application”) to New York State. PSMF ¶ 4. Plaintiff retained a third
party, Patricia Altman (“Altman”) of PACA Architectural History &
Preservation Consulting, to assist in completing the Application. Id. ¶ 5.
Altman did so on August 7, 2015. Id. In the Application, Altman indicated
that plumbing leaks had caused extensive damage to certain areas of the
Property, that water remained on floors, and that mold remained on doors.
DSMF ¶ 7. Moreover, the Application described the gymnasium floors as

Plaintiff claims that the evidence defendant relies on is, for the most part, improperly
authenticated or not in admissible form. Contrary to plaintiff’s characterization that defendant
relies on its affirmation as evidence, defendant clearly relies on exhibits that its affirmation simply
introduces. This is a permissible approach to presenting evidence and documents into the record.
See, e.g., Degelman Indus. v. Pro-Tech Welding & Fabrication, Inc., 2011 U.S. Dist. LEXIS 147953,
*10 (W.D.N.Y. Dec. 23, 2011).
2

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“severely damaged” and noted that recent water infiltration had “severely
damaged” acoustical ceiling tile, plaster ceilings, walls, and hardwood floors
throughout the gymnasium. Id. However, in the Application, Altman
observed the floor to be repairable. PSMF ¶ 6.
State Street began renovations consistent with the Application around
June 2016. PSMF ¶ 7. In late October or early November 2016, a roofing
subcontractor stepped through the Property’s roof, penetrating the plywood
and causing a hole to form. Id. ¶ 8. Plaintiff claims that in ordinary
circumstances, the plywood immediately would have been replaced, but the
presence of asbestos in the Property’s roof prevented immediate replacement.
Id. ¶ 9. According to plaintiff, asbestos remediation requires inspection and
approval from New York state, and plaintiff claims it placed a tarp over the
hole in the Property’s roof until it received such approval. Id. ¶ 10.
Defendant agrees that someone placed a tarp over the hole at some point, but
avers that there is not sufficient documentary evidence demonstrating that it
remained secured until plaintiff received state approval. Dkt. 42,
Defendant’s Response to PSMF (“DRSMF”), ¶ 10.
State Street claims it reported the roof incident to its insurance agent,
Lawley Real Estate Insurance Services (“Lawley”), but did not make a formal
claim at that time because, among other things, it believed the anticipated
damage was below its policy deductible. PSMF ¶ 11. Acadia, for its part,
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claims to have no knowledge that plaintiff reported the incident to Lawley.
DRSMF ¶ 11. In January 2017, once the state approved plaintiff’s repair and
asbestos remediation, plaintiff began work on the Property’s roof. Id. ¶ 12.
According to plaintiff, it finished these repairs by April 2017. Id.
Once State Street finished the repairs, it then submitted an Amended
Historic Preservation Certification Application (the “Amended Application”)
on April 10, 2017. PSMF ¶ 13. In the Amended Application, Altman
“observed the main gym floor to be beyond feasible repair.” Id. ¶ 14. Altman
further noted that the “condition of the floor worsened since [the] initial
application,” specifically “with cupping, buckling, and cracking throughout”
and concluded that the “floor need[s] to be replaced in full.” Id. Altman
attributed these conditions to water damaged that “had either continued
since or occurred after [she] submitted [the] initial application.” Id. ¶ 15.
State Street claims that the worker stepping through the Property’s roof
was the only water intrusion it suffered between August 7, 2015, the date of
the Application, and April 10, 2017, the date of the Amended Application.
PSMF ¶ 16. However, Acadia notes that a June 1, 2016 site survey
performed by Alexander & Schmidt indicates that water intrusion occurred
as a result of a roof drain breaking about a year prior, meaning it is possible
that water intrusion occurred between the Application and the Amended
Application. DRSMF ¶ 16.
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On February 13, 2018, State Street filed a formal insurance claim (the
“Claim”) to Acadia for damages to the Property. PSMF ¶ 17. Two days later,
defendant issued a reservation of rights (the “Reservation of Rights”) that
noted “the delay in reporting this claim may impede [Acadia’s] ability to
properly investigate and evaluate [State Street’s] claim” and cited the Policy’s
provision on prompt notice. Dkt. 34-4. Acadia spent 1.5 years investigating
the Claim, and formally denied it (the “Denial”) on August 2, 2019.
PSMF ¶ 18; DSMF ¶ 12. Defendant based the Denial on several
considerations, namely, plaintiff’s failure to provide prompt notice of the roof
damage, plaintiff’s lack of supporting evidence and documentation, and
plaintiff’s failure to protect the Property. PSMF ¶ 22; DSMF ¶ 12.
LEGAL STANDARD
Under Rule 56, summary judgment is warranted “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of
fact is material for purposes of this inquiry if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). And a dispute of material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Id.

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In assessing whether there are any genuine disputes of material fact, “a
court must resolve any ambiguities and draw all inferences from the facts in
a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.
Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is
inappropriate where a “review of the record reveals sufficient evidence for a
rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
DISCUSSION
State Street claims it has met its burden of demonstrating a fortuitous
loss with respect to the Property, and Acadia offers several reasons for why it
denied coverage. The Court agrees with defendant’s first justification and
need not go further.
The principal thrust of Acadia’s motion for summary judgment is that
State Street failed to provide it with timely notice of the alleged loss, and
thus failed to satisfy a condition precedent to coverage. As defendant
explains, although plaintiff knew of the alleged roof damage “as early as
December 1, 2016,” it did not provide defendant with notice of the loss until
February 13, 2018. Dkt. No. 34-16 at 11–13; see also Dkt. No. 34-3.
In New York, timely notice is a condition precedent to insurance coverage,
and the failure to provide such notice relieves the insurer of its coverage
obligation, regardless of prejudice. Minasian v. IDS Prop. Cas. Ins. Co., 676
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F. App’x 29, 31 (2d Cir. 2017) (citing Briggs Ave. LLC v. Ins. Corp. of
Hannover, 11 N.Y.3d 377, 381 (2008)). A notice obligation is triggered when
“the circumstances known to the insured ... would have suggested to a
reasonable person the possibility of a claim.” Id. (citing Sparacino v.
Pawtucket Mut. Ins. Co., 50 F.3d 141, 143 (2d Cir. 1995)). “[T]he insurer
need not demonstrate prejudice before it can assert the defense of
noncompliance by the insured.” Sparacino, 50 F.3d at 143.
Upon review, State Street cannot reasonably dispute that it provided late
notice to Acadia. “In case of a loss,” the Policy required the insured to “give
‘us’ or ‘our’ agent prompt notice including a description of the property
involved.” Dkt. No. 34-2 at 63. As relevant here, plaintiff admits that “[i]n
late October or early November 2016, a roofing subcontractor stepped
through the roof, penetrating the plywood, and causing a hole to form.” Dkt.
No. 35-1 ¶ 8. Although plaintiff claims to have “report[ed] the roof
penetration to Lawley, an agent of plaintiff,” it further admits that it did not
file “a formal notice of claim” until February 13, 2018 – approximately
fourteen months later. Id. ¶ 14.
Where an insurance policy requires notice be given as soon as practicable,
“such notice must be accorded the carrier within a reasonable period of time.”
Minasian, 676 F. App’x at 31 (citing Great Canal Realty Corp. v. Seneca Ins.
Co., 800 N.Y.S.2d 521, 522 (2005)). “On numerous occasions, New York
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courts have held notice delays of less than three months unreasonable as a
matter of law and discharged insurers of coverage obligations.” Id. (collecting
cases). Accordingly, the fourteen-month delay in this case was unreasonable
as a matter of law.
In response, State Street offers three reasons why Acadia’s late notice
argument either fails or is inapplicable. None of these arguments is
persuasive, and the Court addresses each in turn.
First, State Street argues that Acadia waived late notice as a grounds for
denying coverage because it failed to include such grounds in its denial letter.
Dkt. No. 35 at 5-8. Defendant responds that on February 15, 2018 – just two
days after it received notice of the alleged loss – it issued the Reservation of
Rights, which specifically noted it was reserving rights based on late notice
and quoted the Policy’s language requiring prompt notice. Dkt. 43 at 6.
Defendant further explains that its August 2, 2019 disclaimer letter
incorporated its Reservation of Rights and reiterated the prompt notice policy
language. Id. In defendant’s view, the mere fact that it later denied coverage
on “other grounds in addition to late notice does not render the late notice
claim waived.” Id.
New York insurance law defines waiver as a voluntary and intentional
relinquishment of a known right. Albert J. Schiff Associates. Inc. v. Flack,
435 N.Y.S.2d 972, 974-75 (N.Y. 1980); State of New York v. AMRO Realty
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Corp., 936 F.2d 1420, 1431 (2d Cir. 1991). Waiver may be found “where there
is direct or circumstantial proof that the insurer intended to abandon the
defense.” AMRO Realty Corp., 936 F.2d at 1431. An implied waiver exists
when there is an intention to waive unexpressed, but clearly to be inferred
from circumstances. Id.
The record indicates that, on February 13, 2018, State Street filed the
Claim to Acadia for damages to the Property. PSMF ¶ 17. Two days later,
Acadia issued the Reservation of Rights stating that defendant reserved its
rights under the Policy because “[the] loss is reported to have occurred on or
about December 1, 2016, however it was not reported … until February 13,
2018,” and explained that “the delay in reporting this claim may impede
[Acadia’s] ability to properly investigate and evaluate [State Street’s] claim.”
Dkt. 34-4. The Reservation of Rights also included the language from the
Policy requiring prompt notice. Id.
On August 2, 2019, Acadia issued the Denial. PSMF ¶ 18; DSMF ¶ 12.
The Denial specifically notes that “prior communications from Acadia are
specifically incorporated herein.” Dkt. 34-10. Then, the Denial advises State
Street that defendant is denying coverage for the alleged loss, and
enumerates its reasons for doing so. Id. Within this discussion, the Denial
reiterates the prompt notice provision from the Policy that it first cited in the
Reservation of Rights. Id. Finally, the Denial states that Acadia does not
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waive its right to deny coverage at a later date for other reasons, and that
Acadia made its coverage determination based on the information currently
available.
In sum, the evidence establishes that Acadia not only immediately
reserved its rights with respect to a late notice defense and cited the
applicable Policy provision, it also incorporated this reservation into the
Denial. In the Denial, defendant also cited the applicable Policy provision
again, and specifically stated that it did not waive its right to deny coverage
at a later date for other reasons. Even viewing the facts in the light most
favorable to State Street, no reasonable jury could conclude that defendant
voluntarily and intentionally relinquished its late notice argument. See
Gelfman v. Capitol Indem. Corp., 39 F. Supp. 3d 255, 269 (E.D.N.Y. 2014)
(“[W]here the insurer has repeatedly reserved its rights, ‘such reservations
preclude arguments both as to waiver and to equitable estoppel’”) (citing
Globecon Grp., LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 176 (2d Cir.
2006)).
Second, State Street argues that even if Acadia did not waive its late
notice defense, plaintiff provided proper notice to Lawley, an insurance agent.
In plaintiff’s view, this was sufficient to put Acadia on notice of a claim under
the Policy. This argument also fails.

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Although State Street claims to have promptly notified Lawley when the
worker first put a hole in the Property’s roof, it concedes that it did not make
a formal notice of claim to Acadia until nearly fourteen months later. Even
viewed in the light most favorable to State Street, the record establishes that
plaintiff and Lawley generally discussed the damage and together decided
not to report it to defendant. 3 Indeed, plaintiff’s own representative testified
in his deposition that plaintiff and Lawley:
[D]idn’t really talk about a claim at that point because we knew the costs
for the repair of the actual damage to the roof would be covered under the
construction contingency. So we didn’t have to worry about the actual
repairs to the roof … And then the subsequent damage wasn’t felt to be
sufficient to create a claim, if we already have a deductible.
Dkt. 34-11 at 84:12-20. Plaintiff’s representative further noted that he first
discussed a possible claim with Lawley “at the occurrence, in 2016.” Id. at
85:10-11. 4

This scenario differs from the first of two cases plaintiff cites supporting its agency argument.
In D.C.G. Trucking Corp. v. Zurich Ins. Co., the insured provided substantial information – not
merely general discussion – to the insurance agent under the reasonable belief that the agent would
communicate notice to the insurer. See 81 A.D.2d 990, 991 (Sup. Ct. App. Div. 3d Dep’t 1981)
(holding that insured providing insurance agent with two legal summonses and accident report that
stated the name of the insured, the date, time and place of the accident, and name of the injured
party constituted notice to defendant insurance carrier). Notably, plaintiff’s second cited case,
Martinson v. Massachusetts Bay Ins. Co., undermines the notion that notice to Lawley was sufficient
to impute notice to defendant. 947 F. Supp. 124, 129 (S.D.N.Y. 1996). There, the court rejected
insureds’ agency argument because, as here, the insureds did not expect the agent to notify the
carrier. See id. (“Although a principal is generally bound by notice given to his agent, this is not true
when the person giving notice had no expectation that it would be transmitted to the principal …”).
4 Other than the representative for plaintiff’s testimony, there does not appear to be any
documentary evidence indicating that plaintiff discussed the roof damage or a potential claim with
Lawley at the time of the incident.
3

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In other words, plaintiff was aware of the possibility of a claim under the
Policy when the damage first occurred but decided not to tender one because
it estimated that the deductible exceeded the loss amount. That is not a valid
excuse under New York law. As the First Department has explained:
No exception is made [to the timely notice requirement] for losses which
appear insubstantial or which in the insured’s estimation may not
ultimately ripen into a claim. The import is clear; all losses are to be
reported as soon as practicable if they are to become the basis of a claim.
When the insured indefinitely reserves to itself the determination of
whether a particular loss falls within the scope of coverage it does so at its
own risk.
Power Auth. v. Westinghouse Elec. Corp., 502 N.Y.S.2d 420, 422 (N.Y. App.
Div. 1st Dep’t 1986); see also Heydt Contracting Corp. v. Am. Home Assur.
Co., 146 A.D.2d 497, 499 (N.Y. 1989) (“The fact that a particular occurrence
may not in the end result in a ripened claim does not relieve the insured from
advising the carrier of that event, and plaintiff's policy with defendant
dictates that timely written notice be provided whenever a claim ‘may’
arise”).
Third, State Street claims that it had a reasonable excuse for the delay in
providing notice to Acadia due to its “reasonable belief” in non-coverage. 5
Specifically, plaintiff claims that neither it nor Lawley believed that a minor
hole in the roof would cost more than the deductible, so it never pursued a
In its papers, plaintiff phrases this argument as a “reasonable belief in non-liability.” See Dkt.
35 at 7. However, given previous statements and the argument plaintiff advances, plaintiff clearly is
attempting to assert that it had a reasonable belief in non-coverage, not non-liability.
5

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claim because it believed there was no coverage. As an initial matter, this
argument fails for the same reasons as immediately above. Plaintiff’s
representative indicated that plaintiff knew there was a possibility of the
Policy’s applicability, but made the tactical decision to not formally submit a
claim to defendant because it believed the deductible amount would be in
excess of the damage. As New York law makes clear, there is no exception to
the timely notice requirement in such a situation. See Power Auth., 502
N.Y.S.2d at 422 (stating that there is no exception to timely notice
requirement “for losses which appear insubstantial or which in the insured’s
estimation may not ultimately ripen into a claim”); see also Paramount Ins.
Co. v. Rosedale Gardens, Inc., 293 A.D.2d 235, 239-40 (2002) (“The duty to
give notice arises when, from the information available relative to the
accident, an insured could glean a reasonable possibility of the policy’s
involvement”).
Moreover, even if State Street did believe that the amount of damage
failed to meet the deductible and was therefore not covered by the Policy, the
record, viewed in a light most favorable to plaintiff, shows that its notice was
still late. Indeed, the Amended Application indicated that, by April 10, 2017,
the Property’s floors had worsened to the point where they were beyond
repair. PSMF ¶ 13-15. No reasonable jury could find, at that point, that
plaintiff had a reasonable belief that the Property’s damage was below the
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deductible. Yet, by plaintiff’s own admission, it waited an additional ten
months to report the claim to Acadia. Id. at ¶ 17. Even standing alone, this
ten-month gap is unreasonable as a matter of law. See Minasian, 676 F.
App’x at 31 (collecting cases and noting that “on numerous occasions, New
York courts have held notice delays of less than three months unreasonable
as a matter of law and discharged insurers of coverage obligations”).
In sum, “[n]otice provisions in insurance policies afford the insurer an
opportunity to protect itself.” Sec. Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons
Corp., 31 N.Y.2d 436, 440 (N.Y. 1972). “Without timely notice an insurer
may be deprived of the opportunity to investigate a claim and is rendered
vulnerable to fraud.” Power Auth., 502 N.Y.S.2d at 422. While there may be
circumstances that excuse or explain an insured’s delay in giving notice to its
insurer, the burden is on the insured to show the reasonableness of its
excuse. White ex rel. White v. City of N.Y., 81 N.Y.2d 955, 957 (N.Y. 1993).
Viewed in a light most favorable to State Street, the record shows that it
failed to give Acadia timely notice of the alleged loss, and thus failed to
satisfy a condition precedent to coverage. Plaintiff has failed to show its
excuses for giving late notice were reasonable, and summary judgment in
favor of defendant is appropriate. Because plaintiff’s own motion for
summary judgment concerns only coverage and damages, it will be denied as
moot.
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CONCLUSION
Therefore, it is
ORDERED that
1. Defendant Acadia Insurance Company’s motion for summary judgment
is GRANTED;
2. Plaintiff 13 State Street LLC’s motion for summary judgment is
DENIED; and
3. Plaintiff 13 State Street LLC’s complaint is DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly and close
the file.
IT IS SO ORDERED.

Dated: May 9, 2022
Utica, New York.

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