405 Condo Associates, LLC v. Greenwich Insurance Company
Filing
50
OPINION AND ORDER: Greenwich's motion to bar expert testimony is granted and its motion for summary judgment is denied. The Clerk of the Court is directed to close these motions (Docket No. 12). A conference is scheduled for January 7, 2013 at 4:00p.m. (Status Conference set for 1/7/2013 at 04:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/24/2012) (ft)
summary judgment is denied.
II.
BACKGROUND
A.
Procedural History
On December 22, 2010, Greenwich issued an insurance policy (the
“Policy”) to 405 Condo covering certain losses to its property located at 405
Broadway, New York, NY 10013.2 The subject property is a five story
condominium bordered by buildings in excess of twenty stories.3 405 Condo
alleges that, on August 28, 2011, the property was damaged by winds from
Hurricane Irene.4
On August 29, 2011, 405 Condo retained B.H. Contracting to repair
the roof of 405 Broadway.5 B.H. Contracting’s repairs cost $140,481.41.6 Belayet
Chowdhury (“Chowdhury”), the founder and principal of B.H. Contracting,
oversaw the repairs and allegedly witnessed damage to the roof the morning after
2
See Complaint (“Compl.”), Ex. A to Notice of Removal, ¶ 4.
3
See Plaintiff’s Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment (“Opp. Mem.”) at 1.
4
See id.
5
See Defendant’s Memorandum of Law in Support of Motion to Bar
Expert Testimony and for Summary Judgment (“Def. Mem.”) at 4.
6
See 9/9/11 B.H. Contracting Invoices, Exs. G and H to 9/25/12
Declaration of Mark Antin, defendant’s counsel, in Support of Defendant’s Motion
to Bar Expert Testimony and for Summary Judgment (“Antin Dec.”), at 1.
2
the hurricane.7 During the same period, General Mechanical Operators &
Construction Inc. (“G.M.O.C.”) performed $42,385.85 worth of repairs to interior
areas of the building damaged by leakage.8 405 Condo also incurred
approximately $21,800 of expenses due to window repairs and treatments.9 405
Condo then filed an insurance claim under the Policy asserting that it was entitled
to recover costs totaling $208,411.51 for damage caused by Hurricane Irene.10
After determining that the property damage was not covered by the
Policy, Greenwich denied the claim.11 The Policy provides:
1. We will not pay for loss of or damage to property, as
described and limited in this section. In addition, we will not pay
for any loss that is a consequence of loss or damage as described
and limited in this section. . .
c. The interior of any building or structure, or to personal
property in the building or structure, caused by or resulting
from rain, snow, sleet, ice, sand or dust, whether driven by
wind or not, unless
(1) The building or structure first sustains damage
by a Covered Cause of Loss to its roof or walls
7
See Opp. Mem. at 2-3.
8
See 9/7/11 G.M.O.C. Invoice, Ex. I to Antin Dec., at 3.
9
See Unique Window Treatments Invoice, Ex. J. to Antin Dec., at 1.
See also Eagle Aluminum Windows Invoice, Ex. K. to Antin Dec., at 1.
10
See id.
11
See id. at 6.
3
through which the rain, snow, sleet, ice, sand or dust
enters . . .12
Greenwich’s investigation revealed that 405 Broadway suffered damage
exclusively from seepage or wind-driven rain, and that the building did not first
sustain damage by a Covered Cause of Loss such as wind damage.13
405 Condo does not dispute Greenwich’s interpretation of the Policy,
but alleges that all of the interior and exterior damage resulted from gusts of
wind.14 Specifically, 405 Condo contends that wind peeled back the roof flashing
at the subject property, allowing rain to infiltrate the premises and cause
widespread interior damage to the property.15 On November 28, 2011, 405 Condo
commenced this litigation against Greenwich seeking at least $250,000, plus
interest and costs.
B.
The Expert16
Greenwich seeks to bar Rosenzweig, 405 Condo’s expert, from
12
Id. at 9-10.
13
See id. at 11.
14
See Opp. Mem. at 1.
15
See id.
16
These facts are drawn from Rosenzweig’s resumé. See Rosenzweig
resumé, Ex. F to Antin Dec., at 1-2.
4
testifying that gusts of wind caused damage to the roof.17 Rosenzweig received a
Bachelor’s Degree in Civil Engineering and a Master’s Degree in Civil
Engineering in 1997, both from Cooper Union. Rosenzweig has worked as an
engineer for four different firms since earning his degrees. From 2001-2004,
Rosenzweig was responsible for field supervision of structural repairs as well as
waterproofing and roofing repairs at Feld, Kaminetzky & Cohen, PC. In 2001, he
founded his own firm, Solomon Rosenzweig, which offers roof inspection and
replacement services. Rosenzweig is currently a licensed professional engineer in
New York, and a member of the American Institute of Steel Construction, the
National Society of Professional Engineers, and the American Welding Society.
Rosenzweig has been certified as an expert witness in New York Supreme Court,
as well as several courts in Kings County and Queens County.
III.
LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
“Summary judgment is designed to pierce the pleadings to flush out
those cases that are predestined to result in a directed verdict.”18 Thus, summary
judgment is only appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
17
See Def. Mem. at 1.
18
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
5
material fact and that the movant is entitled to judgment as a matter of law.”19 “For
summary judgment purposes, a ‘genuine issue’ exists where the evidence is such
that a reasonable jury could decide in the non-moving party’s favor.”20 “‘A fact is
material when it might affect the outcome of the suit under governing law.’”21
[T]he burden of demonstrating that no material fact exists lies with the moving
party . . . .”22 “When the burden of proof at trial would fall on the nonmoving
party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the non[-]movant’s claim.”23
In a summary judgment setting, “[t]he burden is on the moving party
to demonstrate that no genuine issue respecting any material fact exists.”24 “When
19
Fed. R. Civ. P. 56(c).
20
Sanchez v. Connecticut Natural Gas Co., 421 Fed. App’x 33, 34 (2d
Cir. 2011) (quoting Nabisco, Inc. v. Warner–Lambert Co., 220 F.3d 43, 45 (2d Cir.
2000)).
21
Carter v. Incorporated Vill. of Ocean Beach, 415 Fed. App’x 290, 292
(2d Cir. 2011) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202
(2d Cir. 2007)).
22
Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008)
(citation omitted).
23
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
24
Mavrommatis v. Carey Limousine Westchester, Inc., No. 10 Civ.
3404, 2011 WL 3903429, at *1 (2d Cir. Sept. 7, 2011) (citing Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)).
6
the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence . . . on an essential element
of the nonmovant’s claim.”25 In turn, to defeat a motion for summary judgment,
the non-moving party must raise a genuine issue of material fact.26 The
non-moving party “‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’”27 and cannot “‘rely on conclusory
allegations or unsubstantiated speculation.’”28
In deciding a motion for summary judgment, a court must “‘construe
the facts in the light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the movant.’”29 However,
“‘[c]redibility determinations, the weighing of the evidence, and the drawing of
25
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009).
26
Id.
27
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
28
Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010)).
29
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting
Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
7
legitimate inferences from the facts are jury functions, not those of a judge.’”30
“‘The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.’”31
IV.
APPLICABLE LAW
A.
Admissibility of Expert Testimony Generally
The proponent of expert evidence bears the initial burden of
establishing admissibility by a “preponderance of proof.”32 Federal Rule of
Evidence 702 states the requirements for the admission of expert testimony as
follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
30
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
(emphasis removed).
31
Brod, 653 F.3d at 164 (quoting Wilson v. Northwestern Mut. Ins. Co.,
625 F.3d 54, 60 (2d Cir. 2010)).
32
Bourjaily v. United States, 483 U.S. 171, 175–76 (1987) (discussing
Rule 104(a) of the Federal Rules of Evidence). Accord Daubert, 509 U.S. at 592
& n.10 (citing Bourjaily, 483 U.S. at 175–76, and explaining that the proponent of
expert testimony must prove admissibility by a preponderance of proof).
8
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Under Rule 702 and Daubert, the district court must determine whether the
proposed expert testimony “both rests on a reliable foundation and is relevant to
the task at hand.”33 That is, the district court must act as “‘a gatekeeper to exclude
invalid and unreliable expert testimony.’”34 Nonetheless, “the Federal Rules of
Evidence favor the admissibility of expert testimony, and [the court’s] role as
gatekeeper is not intended to serve as a replacement for the adversary system.”35
Accordingly, in serving as gatekeeper, the court must focus on the principles and
33
509 U.S. at 597. Accord Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147–49 (1999).
34
Bickerstaff v. Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999) (quoting
Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir. 1999)). Accord
Louis Vuitton Malletier v. Dooney & Bourke, Inc. (“Vuitton IV”), 525 F. Supp. 2d
558, 561–65 (S.D.N.Y. 2007) (discussing district court's “special obligation” to
gatekeep with respect to expert evidence).
Additionally, expert testimony may not usurp the role of the court in
determining the applicable law. See United States v. Lumpkin, 192 F.3d 280, 289
(2d Cir. 1999). Although an expert “may opine on an issue of fact,” an expert
“may not give testimony stating ultimate legal conclusions based on those facts.”
United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991). Expert testimony
is also inadmissible when it addresses “lay matters which [the trier of fact] is
capable of understanding and deciding without the expert’s help.” Andrews v.
Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989).
35
Vuitton IV, 525 F. Supp. 2d at 562 (citation and quotation marks
omitted).
9
methodologies underlying the expert’s conclusions, rather than on the conclusions
themselves.36 To this end, courts may consider (1) “whether [the method or
theory] can be (and has been) tested,” (2) “whether [it] has been subjected to peer
review and publication,” (3) “the known or potential rate of error [associated with
the technique] and the existence and maintenance of standards controlling the
technique's operation,” and (4) whether the method has achieved “general
acceptance” within the relevant community.37
The court’s objective when exercising this gatekeeping function is to
“make certain that an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.”38 However,
recognizing that “there are many different kinds of experts, and many different
kinds of expertise,” the Supreme Court has emphasized that the reliability inquiry
“is a flexible one.”39 Accordingly, the factors “identified in Daubert may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the
36
See Daubert, 509 U.S. at 595.
37
Id. at 592-95.
38
Kumho Tire, 526 U.S. at 152.
39
Id. at 150.
10
expert's particular expertise, and the subject of his testimony.”40 Ultimately, the
inquiry “depends upon the particular circumstances of the particular case at
issue.”41 In sum, the trial court has “the same kind of latitude in deciding how to
test an expert’s reliability . . . as it enjoys when it decides whether or not that
expert’s relevant testimony is reliable.”42 Moreover, “nothing in either Daubert or
the Federal Rules of Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert.”43 In
particular, “expert testimony should be excluded if it is speculative or
conjectural.”44
Additionally, Federal Rule of Evidence 403 states that relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.” Given
that “[e]xpert evidence can be both powerful and quite misleading because of the
40
Id. (quotations omitted).
41
Id.
42
Id. at 152 (emphasis in original).
43
General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
44
Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996).
Accord Major League Baseball Props., Inc. v. Salvino, 542 F.3d 290, 311 (2d Cir.
2008) (“An expert’s opinions that are without factual basis and are based on
speculation or conjecture are similarly inappropriate material for consideration on a
motion for summary judgment.”).
11
difficulty in evaluating it[,] the judge in weighing possible prejudice against
probative force under Rule 403 . . . exercises more control over experts than over
lay witnesses.”45
B.
Lay Testimony
Federal Rule of Evidence 602 states that “[a] witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness’ own testimony.” The
Advisory Committee Note explains that this requires a witness to “be a percipient
witness whose testimony is grounded in first-hand information obtained through
one of his or her five senses . . . The required threshold . . . however, is low,
requiring only enough ‘to support a finding’ by some rational juror of personal
knowledge.”
Rule 701 allows lay witnesses to express opinions, inferences, and
conclusions only if they are: “(a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”
45
Id. (quotation marks omitted).
12
C.
Hearsay
Out-of-court statements that are introduced to prove the truth of the
matter asserted are classified as hearsay,46 and they are admissible only if they bear
adequate indicia of reliability.47 “Reliability can be inferred . . . in a case where the
evidence falls into a deeply rooted hearsay exception.”48 One such exception,
codified in Federal Rule of Evidence 803(6), allows the records of a regularly
conducted activity to be admitted if:
(A) the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
“Rule 803(6) favors the admission of evidence rather than its exclusion if it has any
46
See Fed. R. Evid. 801(c) (“‘Hearsay’ means a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted in the statement.”).
47
See, e.g., Bierenbaum v. Graham, 607 F.3d 36, 49 (2d Cir. 2010).
48
Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated on other grounds
by Crawford v. Washington, 541 U.S. 36 (2004).
13
probative value at all.”49 “‘[T]he principal precondition to admission of documents
as business records pursuant to Fed. R. Evid. 803(6) is that the records have sufficient
indicia of trustworthiness to be considered reliable.’”50
V. DISCUSSION
A.
Rosenzweig’s Testimony Is Inadmissible
Greenwich challenges the reliability of Rosenzweig’s testimony rather
than his qualification as an expert. Greenwich argues that Rosenzweig’s testimony
constitutes an impermissible “net opinion,” or ipse dixit statement, because it fails
to adequately explain how Rosenzweig reached his conclusion that gusts of wind
damaged the roof.51 I agree.52
Rosenzweig opines “within a reasonable degree of engineering
certainty that the roof and flashing were first damaged by wind, and that the water
49
United States v. Williams, 205 F.3d 23, 24 (2d Cir. 2000).
50
Health Alliance Network, Inc. v. Continental Cas. Co., 245 F.R.D.
121, 129 (S.D.N.Y. 2007) (quoting Potamkin Cadillac Corp. v. B.R.I. Coverage
Corp., 38 F.3d 627, 632 (2d Cir. 1994)).
51
See Def. Mem. at 12.
52
Because I agree with Greenwich that Rosenzweig’s amended report
suffers from the same inadequacies as the original, I do not reach the issue of
whether or not the amendment was improper. See Defendant’s Memorandum of
Law in Further Support of Motion to Bar Expert Testimony and for Summary
Judgment (“Reply Mem.”) at 8.
14
penetration and damage were subsequent to the wind damage.”53 Rosenzweig
bases this opinion on a weather report taken at JFK airport — thirteen miles away
from 405 Broadway — that recorded wind gusts of up to fifty-nine miles per hour
on August 28, 2011.54 Rosenzweig posits that tall buildings neighboring 405
Broadway raised wind speed in the area and increased “the load on items such as
windows and flashing” due to a phenomenon known as the Bernoulli effect.55
Rosenzweig would testify that these elevated wind speeds resulted in damage to
the roof flashing, allowing rainwater to enter the building.56
This testimony fails to satisfy the reliability requirement of Rule 702.
First, Rosenzweig’s report does not mention the type of material used in the
flashing or attempt to approximate the wind speeds necessary to cause the flashing
to peel back. This renders his testimony speculative. Second, Rosenzweig’s report
contains no methodology for differentiating wind damage caused by Hurricane
Irene from prior damage or rain damage alone. Third, that Rosenzweig did not
examine the roof in person until May 31, 2012 — eight months after the damage
53
Proposed Amended Expert Report, Ex. A to 10/22/12 Declaration of
Matthew Aboulafia, plaintiff’s counsel, at 3.
54
See id. at 2.
55
Id.
56
See id.
15
allegedly occurred and after repairs had been completed — calls into doubt the
reliability of his testimony given the absence of a clear methodology or relevant
data.57 Here, there is “simply too great an analytical gap between the data and the
opinion proffered.”58 Because Rosenzweig’s testimony is speculative, it is
excluded.
B.
The B.H. Contracting and G.M.O.C. Invoices, and Chowdhury’s
Testimony, Are Admissible
Greenwich argues that 405 Condo’s invoices regarding repair work to
the roof are inadmissible for two reasons. First, Greenwich argues that they
constitute inadmissible hearsay evidence.59 Second, Greenwich argues that
Chowdhury should not be permitted to testify because he has not been qualified as
an expert.60 Both of these arguments lack merit.
1.
The Invoices Are Admissible as Business Records
405 Condo argues that the invoices are admissible under the business
records exception to the hearsay rule.61 The B.H. Contracting invoice was made at
57
See id. at 2.
58
Joiner, 522 U.S. at 146.
59
See Def. Mem. at 19.
60
See id.
61
See Opp. Mem. at 15.
16
the time of the repair by Chowdhury.62 Similarly, the G.M.O.C. invoice was made
near the time of the repair in the course of business, rather than in preparation for
litigation.63 Both of these entities are capable of providing testimony as to the
necessity, regularity, and reasonableness of their business records.64
Greenwich points to nothing about the invoices that indicates a lack of
trustworthiness. Indeed, in its reply brief, Greenwich makes no attempt to explain
why the invoices fail to meet the requirements for the business records exception.65
As a result, and because all of the elements of the business records exception are
met, the invoices will be admitted.66
2.
Chowdhury May Testify as a Layperson Under Federal
Rule of Evidence 701
Greenwich argues that Chowdhury may not testify because he is not a
qualified expert.67 Under Rule 701, “if an opinion rests ‘in any way’ upon
62
See B.H. Contracting Invoices.
63
See G.M.O.C. Invoice.
64
See Opp. Mem. at 14.
65
See Reply Mem. at 9.
66
See Time Warner Entm’t / Advance Newhouse P’ship v. Sherman, 87
Fed App’x 774, 775-76 (2d Cir. 2004) (affirming District Court’s admission of
third party invoices under business records exception to the hearsay rule).
67
See Def. Mem. at 19.
17
scientific, technical, or other specialized knowledge, its admissibility must be
determined by reference to Rule 702, not Rule 701.”68 However, Chowdhury has
first-hand knowledge of the condition of the roof at 405 Broadway after the storm,
and it doesn’t take an expert to see that roof flashing has peeled back, allowing
water to penetrate a roof. Testimony to that effect is neither irrelevant nor
prejudicial. Nor does Chowdhury’s experience as a contractor convert him from a
lay witness to an expert witness.69
But because Chowdhury lacks personal knowledge as to wind speeds
during the storm,70 he may not testify as to what wind speeds were during the storm
or whether, in his opinion, wind speeds reached levels sufficient to cause the
68
U.S. v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005) (citing 4 Weinstein’s
Federal Evidence § 701.03[1]).
69
See U.S. v. Fama, No. 12–CR–186, 2012 WL 6102700, at *2
(E.D.N.Y. Dec. 10, 2012) (“‘When a lay witness has particularized knowledge by
virtue of her experience, she may testify — even if the subject matter is specialized
or technical — because the testimony is based upon a layperson's personal
knowledge rather than on specialized knowledge within the scope of Rule 702.’”)
(quoting Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009)).
See also Briese Lichttechnik Vertriebs GmbH v. Langton, No. 09 Civ. 9790, 2012
WL 5457681, at *6 (S.D.N.Y. Nov. 8, 2012) (finding that a witness with over
fifteen years of experience working with lighting equipment could testify as a lay
person regarding the structure and operation of particular types of lighting
equipment).
70
See 6/25/12 Deposition of Belayet Chowdhury, Ex. O to Antin Dec.,
at 146:3-22.
18
damage he observed to the flashing. Such testimony is unrelated to his perception,
and therefore is inadmissible.71
C.
405 Condo Has Presented Enough Evidence of Damages to
Survive Summary Judgment
Finally, Greenwich argues that 405 Condo has not met its burden to
prove damages by admissible evidence.72 Even without the Rosenzweig report,
both the B.H. Contracting and G.M.O.C. invoices provide a measure for the
damages claimed.73 Although Greenwich disagrees with these assessments and has
provided its own measure of damages,74 the trier of fact must ultimately weigh the
reasonableness of the competing estimates in determining which to apply.75
Greenwich also argues that the invoices do not provide adequate proof
71
See Romanelli v. Long Island R.R. Co., No. 11 Civ. 2028, 2012 WL
2878132, at *4 (S.D.N.Y. July 13, 2012) (finding that plaintiff witness could
testify that he was exposed to fumes, but not that the fumes were “hazardous
contaminants.”).
72
See Def. Mem. at 18. “Under New York law, the elements of a breach
of contract claim are the formation of an agreement, performance by one party,
breach of the agreement by the other party, and damages.” Berman v. Sugo LLC,
580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008) (emphasis added).
73
See B.H. Contracting Invoice at 1. See also G.M.O.C. Invoice.
74
See Report of Minogue Associates, Inc., Ex. U to Antin Dec.
75
See Kaytor, 609 F.3d at 545 (“In reviewing the evidence and the
inferences that may reasonably be drawn, the court ‘may not make credibility
determinations or weigh the evidence.’”) (quoting Reeves, 530 U.S. at 150)
(emphasis omitted).
19
of damages because they do not differentiate damage caused by wind from damage
caused by rain, which are not covered by the Policy.76 In particular, Greenwich
seeks to dismiss claims relating to interior and exterior damage that, it argues,
cannot be the result of damaged roof flashing.77 However, Rafi Gibly, the
managing partner of 405 Condo, testified at his deposition that he observed leakage
and water damage throughout the subject premises during the storm.78 He further
testified that he experienced high wind speeds in the neighborhood of the subject
premises during the storm and that the neighborhood was “extremely windy on a
regular basis,” often experiencing wind speeds that seemed greater than those in
other parts of the City.79 He also stated that he observed flashing damage on the
day of the storm80 and that previous rainfall had not resulted in such damage.81
This testimony, if believed, supports 405 Condo’s theory that wind gusts, rather
than non-covered events such as rainfall, resulted in the damage to the subject
76
See Reply Mem. at 9.
77
See Def. Mem. at 20-21.
78
See 4/11/12 Deposition of Rafi Gibly, Ex. M to Antin Dec., at 55:20-
79
See id. at 54:2-67:17.
80
See id. at 71:2-4.
81
See id. at 60:3-5.
62:25.
20
-Appearances-
For Plaintiff:
Matthew S. Aboulafia, Esq.
Aboulafia Law Firm, LLC
60 East 42nd Street, Suite 2231
New York, NY, 10165
(212) 684-1422
For Defendant:
Mark L. Antin, Esq.
Gennet, Kallmann, Antin, & Robinson, P.C.
140 Broadway
New York, NY 10005
(212) 406-1919
22
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