Porter v. State Farm Fire & Casualty Company

Filing 64

ORDER granting 36 Motion for Partial Summary Judgment; adopting in part Report and Recommendations re 45 Report and Recommendations consistent with this Decision and Order. Complaint is dismissed and Clerk is directed to close this case. Signed by Hon. Michael A. Telesca on 6/6/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
DOMINIQUE MARIE PORTER,
DECISION AND ORDER
No. 1:14-cv-00511

Plaintiff,
-vsSTATE FARM FIRE
& CASUALTY COMPANY,
Defendant.
________________________________
I.

Introduction
This matter comes before the Court following United States

Magistrate Judge H. Kenneth Schroeder, Jr.’s filing of a Report and
Recommendation (Docket No. 45)1 on May 24, 2017.

See 28 U.S.C.

§ 636(b)(1)(B); Western District of New York Local Rule 72(b), (c).
In

his

Report

recommended

that

and
the

Recommendation
Court

grant

(“R&R”),
in

part

Judge

and

deny

Schroeder
in

part

Defendant’s motion for partial summary judgment (Docket No. 36).
Judge Schroeder recommended that the Court grant Defendant’s motion
for partial summary judgment on Plaintiff’s claims for replacement
cost, rental income, and personal property coverage, and that the
Court deny Defendant’s motion for partial summary judgment as to
Plaintiff’s claim for debris cost removal.

See Docket No. 45 at 8.

Both parties filed objections to the R&R (Docket Nos. 56, 57)
and Defendant filed a response to Plaintiff’s objection (Docket No.
59). Plaintiff objects to the R&R to the extent it recommends that

1

This case was transferred to the Honorable Michael A.
Telesca on June 4, 2019. Docket No. 63.

the Court grant Defendant’s motion for partial summary judgment on
Plaintiff’s claim for replacement cost coverage (see Docket No. 57
at 1), and Defendant objects to the portion of the R&R recommending
that the Court deny summary judgment on Plaintiff’s claim for
debris removal coverage (Docket No. 56 at 1).
For the reasons discussed below, the Court adopts the portions
of the R&R recommending that the Court grant Defendant’s motion for
partial summary judgment on Plaintiff’s claims for replacement
cost, rental income, and personal property coverage.

However, the

Court reverses the R&R to the extent it denies Defendant’s motion
for partial summary judgment on Plaintiff’s claim for debris cost
removal.
II.

Discussion
A.

Standard

When reviewing a magistrate judge’s report and recommendation,
a district court is required to “make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[,]” id.
Where no “specific written objection” is made to portions of the
magistrate judge’s report, the district court may adopt those
portions, “as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.”

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Eisenberg v. New England

Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008)
(citing FED. R. CIV. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149
(1985); other

citation

omitted).

The

district

court

is

not

required to review any portion of a magistrate judge’s report that
is not the subject of an objection.

Eisenberg, 564 F. Supp. 2d at

227 (citing Thomas, 474 U.S. at 149).
B.

Factual Background

This action stems from Plaintiff’s purchase of the property
located at 254 Strauss Street (the “subject property”) in Buffalo,
New York, in October 2011.

Docket No. 36-6.

The subject property

was deeded to Plaintiff on December 30, 2011 as the result of a
foreclosure sale.

(Docket No. 36-6.)

The State Farm insurance

policy on the subject property which lists Plaintiff as the insured
is dated August 26, 2013 (Docket No. 36-4).

On September 30, 2013,

(approximately one month later) the subject property was completely
destroyed in a fire.

Docket Nos. 36-4, 36-5 at 40-41.

Although the subject property was deeded to Plaintiff as the
successful

bidder

at

a

foreclosure

sale,

she

testified

on

December 16, 2013, that she actually purchased the property as an
accommodation for an individual named Tristan Spencer, who she
identified as her sister Tina’s boyfriend. Specifically, Plaintiff
explained that she, along with Tina and Mr. Spencer, attended an
auction in Buffalo, New York, with the intention of bidding on
properties. While Tina and Mr. Spencer were scouting the available
properties, Plaintiff placed bids on the properties for them.

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Plaintiff paid the required $500 deposit on the property, but
testified that Tina and Mr. Spencer “reimbursed me every dollar.
And then they paid the remainder balance.”

Docket No. 36-5 at 9,

11-13.
Although the Strauss Street property was placed in Plaintiff’s
name, she did not manage or have any interest in the subject
property.

Rather, Mr. Spencer managed, maintained, and leased the

subject property, made renovations, paid property taxes on the
subject property.

Id. at 16, 20-23, 36.

Since Plaintiff’s name

was listed as owner, she was required to attend court at eviction
proceedings, but Mr. Spencer “handled everything,” pertaining to
the eviction.

Id. at 25-26.

Plaintiff further testified that she

had no authority to sell the property, and did not receive any
economic benefit from the property.

Id. at 37.

With regard to the insurance policy on the subject property,
Plaintiff testified that she was not involved in obtaining the
policy;

rather,

Mr.

Spencer

obtained

the

policy

providing

Plaintiff’s information as the owner and he paid the premiums on
the policy. Plaintiff knew nothing about the basic coverage of the
policy insuring the property and only learned of the policy limits
when she “started receiving letters after the property was burned
down.”

Id. at 45-47.

As to her receiving any economic benefit

from the subject property, Plaintiff explained to the insurance
agency salesman, “I told Mike from State Farm I just - they say

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sign here, I just sign.

I don’t even read.

I be signing, I just sign.”
At

a

second

I don’t even know what

Id. at 37.

deposition

on

January

28,

2016,

Plaintiff

testified that any money she would receive from State Farm “will go
straight to [Mr. Spencer] . . . [b]ecause it’s his property.”
Docket No. 36-11 at 29. Plaintiff further testified that, although
what remained of the subject property was demolished after the
fire, she was not aware who paid for the demolition costs.

Id. at

16-17.
C.

Plaintiff’s Claims
Property Coverage

for

Rental

Income

and

Personal

As noted above, the parties do not object to the portion of
the R&R recommending that the Court grant summary judgment in favor
of Defendant on Plaintiff’s claims for rental income and personal
property coverage.

The Court has reviewed Judge Schroeder’s well-

reasoned R&R as it pertains to these claims (see Docket No. 45 at
8), and accepts his recommendation the Court grants Defendant’s
motion in these respects.
D.

Plaintiff’s Claim for Replacement Cost Coverage

Judge Schroeder recommended that the Court grant summary
judgment in favor of Defendant on Plaintiff’s claim for replacement
cost coverage.

See Docket No. 45 at 5.

Judge Schroeder based his

recommendation on Plaintiff’s testimony that she has no intention
of repairing or replacing the property.

Id. at 6-7 (“Absent any

question of fact as to plaintiff’s intent to replace the property,
as required to claim replacement cost coverage, it is recommended

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that this aspect of defendant’s motion for summary judgment be
granted.”); see also Docket No. 36-5 at 33, 37-38, 47-48 (at her
examination under oath on September 30, 2013, Plaintiff testified
that she had no interest in the subject property, did not put any
money into the property, and did not expect to receive any money
from the subject property following a loss); Docket No. 36-11 at
15, 25. At her deposition on January 28, 2016, Plaintiff testified
that she had no intention to replace or rebuild the subject
property.
In her objection, Plaintiff contends, as she did in her motion
papers, that Zaitchick v. American Motorists Ins. Co., 554 F. Supp.
209 (S.D.N.Y. 1982), is instructive in this instance.
No. 56 at 2.

See Docket

Defendant responds that Plaintiff’s objections fail

to set forth any evidence that she lacks the financial ability to
repair, rebuild, or replace the premises, and that the Zaitchick
case, as explained by Judge Schroeder, is distinguishable.

Docket

No. 59 at 2-3.
In Zaitchick, the Court found that the actual repair or
replacement

of

the

damaged

property,

which

was

a

condition

precedent to the insured’s recovery of any replacement cost, was
not required, where it was financially impossible for the insured
to replace the damaged property without any payment from the
insurance company.
instant

case,

Zaitchick, 554 F. Supp. at 216-17 (“In the

plaintiffs

insurance contract.

were

refused

any

monies

under

the

Not surprisingly, they were unable to replace

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their home.

This conduct by defendant made it impossible for

plaintiffs to fulfill the condition precedent, and therefore,
excuses

plaintiffs

from

performance

of

the

replacement

condition.”).
The Court agrees with Judge Schroeder’s analysis that the
Zaitchick case is distinguishable, particularly since Plaintiff has
repeatedly disclaimed any interest in the subject property and
testified unequivocally that she had no plans to replace the
property.

Accordingly, the “equitable considerations” the Court

considered in Zaitchick are not present in this instance.

The

Court therefore adopts Judge Schroeder’s recommendation that the
Court grant summary judgment to Defendant on Plaintiff’s claim for
replacement cost coverage.
E.

Plaintiff’s Claim for Debris Removal Coverage

Judge Schroeder recommended that the Court deny Defendant’s
motion for partial summary judgment on Plaintiff’s claim for debris
removal coverage.

See Docket No. 45 at 7-8.

Specifically, Judge

Schroeder relied upon a Demolition Invoice addressed to Plaintiff
from the City of Buffalo, which he concluded was “sufficient to
raise a question of fact as to whether plaintiff has incurred
expenses for debris removal.”

Id. at 8.

Defendant objects to this portion of the R&R on the grounds
that (1) the Demolition Invoice makes no specific reference to
debris removal charges, costs, or expenses, as defined in the
insurance policy, and (2) the Demolition Invoice is not admissible,

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as

it

is

submitted

explanation,

rather

through
than

an

attorney

through

an

affirmation

affidavit

with

no

submitted

by

Plaintiff, an individual with personal knowledge. Docket No. 56 at
2-3. Plaintiff did not submit a response to Defendant’s objection.
The “Demolition Invoice” is submitted through Plaintiff’s
attorney’s affirmation. See Docket No. 38-2. The invoice is dated
May 1, 2016, and is addressed to Plaintiff, from the City of
Buffalo.

Id.

The total bill, which the invoice indicates is due

by May 15, 2016, is for $16,099.

Id.

Under a heading entitled

“Itemized Demolition Charges,” two items are listed, including
“admin surcharge demo,” and “demolition charges CPF.”

Those two

items are listed with a date of May 24, 2016, which, somewhat
confusingly, is twenty-four days after the date of the Demolition
Invoice itself.

Id.

Because the Demolition Invoice is submitted

through Plaintiff’s attorney, there is no explanation regarding the
meaning of the invoice, including the above-mentioned discrepancy
in dates.

Rather, the only explanation provided by Plaintiff’s

attorney regarding the Demolition Invoice is a statement that
“[a]nnexed hereto as Exhibit ‘2' is a copy of the demolition
invoice from the City of Buffalo dated May 1, 2016 in the sum of
$16,099.00."

Docket No. 38 at 1.

“While the party seeking summary judgment always bears the
burden of demonstrating ‘the absence of a genuine issue of material
fact,’ that party may do so by pointing out that the non-moving
party has failed ‘to make a showing sufficient to establish the

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existence

of

an

element

essential

to

that

party’s

case.’”

Ecommission Solutions, LLC v. CTS Holdings Inc., No. 18-1672-cv,
2019 WL 2261457, at *1 (2d Cir. May 28, 2019) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The only evidence submitted by Plaintiff in support of her
claim for debris removal coverage is the above-mentioned Demolition
Invoice.

It is not clear from the face of the invoice whether

these services have already occurred or are scheduled to occur in
the future.

This is so because the date listed for the services

covered by the invoice is subsequent to the date of the invoice.
The invoice also fails to explain the nature of the specific
services performed, and whether those services are contemplated by
the insurance policy.
Further, the demolition invoice is submitted to the Court
through an affirmation from Plaintiff’s attorney, rather than by an
affidavit from Plaintiff or another person with actual knowledge of
whether the services listed in the Demolition Invoice are covered
under Defendant’s policy.

Indeed, Plaintiff’s attorney would not

be permitted to testify at trial regarding the timing and nature of
the services outlined in the Demolition Invoice.

See Bais Yaakov

of Spring Valley v. Educ. Testing Serv., 367 F. Supp. 3d 93, 107
(S.D.N.Y. 2019) (“a district court should consider only evidence
that would be admissible at trial. . . .

[W]here a party relies on

affidavits . . . to establish facts, the statements must be made on
personal knowledge, set out facts that would be admissible in

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evidence, and show that the affiant . . . is competent to testify
on

the

matters

stated.”)

(internal

quotations

and

citations

omitted); see also Zoll v. Northwell Health, Inc., No. 16-CV2063(JMA)(AYS), 2019 WL 2295679, at *4 (E.D.N.Y. May 30, 2019)
(“The nonmoving party . . . must do more than simply show that
there is some metaphysical doubt as to the material facts. . . .
Mere conclusory allegations, speculation, or conjecture will not
avail a party resisting summary judgment.”) (internal quotations
and citations omitted); ABKCO Music, Inc. v. Sagan, No. 15 Civ.
4025(ER), 2018 WL 1746564, at *8 (S.D.N.Y. Apr. 9, 2018) (a nonmoving party must come forward with admissible evidence sufficient
to raise a genuine issue of fact for trial in order to avoid
summary judgment) (emphasis added).
Specifically, the Court lacks any explanation from Plaintiff
as to why she now believes she is entitled to insurance proceeds
under the policy for demolition removal, when she previously
testified repeatedly that she was not seeking or entitled to any
recovery under the policy. At her deposition on January 28, 2016 only months before the date of the Demolition Invoice - Plaintiff
testified that she had no plans to replace the subject property and
did not plan to use any funds paid by State Farm in connection with
the property.
In

fact,

Docket No. 36-11 at 15, 29.
Plaintiff

clearly

and

unequivocally

claimed

no

interest in the proceeds of the insurance policy as a result of the
fire damage to the subject property by stating that the insurance

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proceeds belong to Mr. Spencer, and that she did not want any
proceeds paid out to her.

Docket No. 36-5 at 33-34, 38-39.

Plaintiff was emphatic that she wanted no financial benefit from
the policy, even though she is the named insured, by stating, “I
didn’t put any money in to the property, [and] I shouldn’t get
anything from it.”

Id. at 48.

It is also undisputed that Mr. Spencer used

Plaintiff’s

auction identification number to bid on the subject property.
Although the deed to the subject property lists Plaintiff as the
owner (Docket Nos. 36-5 at 13-16, 36-6), she clearly explained that
Mr. Spencer managed and received any benefit from the property in
all respects. She was at best an accommodating owner benefitting
Mr. Spencer for reasons best known to them.

In short, the

Demolition Invoice does not create a genuine issue of material fact
as to Plaintiff’s claim for debris removal coverage.

Plaintiff

made it very clear in her sworn testimony that “I didn’t put any
money into the property, [and] I shouldn’t get anything from it.”
Docket No. 36-5 at 48.

She further testified that any payment from

the insurance policy would go straight to Mr. Spencer “[b]ecause
it’s his property.”

Docket No. 36-11 at 29.

Accordingly, the

demolition costs should be the responsibility of the property
owner, which Plaintiff has testified unequivocally is Mr. Spencer.
Thus, the responsibility, if any, for the payment of demolition
costs is left to be resolved between Plaintiff and Mr. Spencer.
Accordingly,

the

Court

declines

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to

adopt

Judge

Schroeder’s

recommendation that the Court deny Defendant’s motion for partial
summary judgment on Plaintiff’s claim for debris removal coverage.
Based on the above-mentioned information, the Court concludes
that Plaintiff’s complaint must be dismissed in its entirety.

The

debt created by the loss of the subject property is not remedied
through the insurance policy, based on the understanding as to
actual ownership which existed between Plaintiff and Mr. Spencer.
Therefore, it is undisputed that Plaintiff is unable to recover
under the insurance policy.

Her complaint, which alleges that she

is entitled to reimbursement under that policy, is inconsistent
with her testimony and is hereby dismissed.

See Wierzbic v. Cnty.

of Erie, No. 13-CV-978S, 2018 WL 550521, at *4 (W.D.N.Y. Jan. 25,
2018); Brandon v. Bd. of Educ. Of Guilderland Cent. Sch. Dist., 487
F. Supp. 1219, 1233 (N.D.N.Y. 1980) (the court may search the
record on a motion for summary judgment, and grant relief as it
deems proper).
III. Conclusion
For the foregoing reasons, the Court adopts in part, and
reverses in part, Judge Schroeder’s R&R (Docket No. 45).
The Court adopts the R&R to the extent it recommends granting
Defendant’s motion for partial summary judgment on Plaintiff’s
claims for replacement cost, rental income, and personal property
coverage.
The Court reverses the R&R to the extent it recommends denial
of Defendant’s motion for partial summary judgment on Plaintiff’s

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claim for debris removal coverage.

The Court sua sponte awards

judgment as a matter of law in Defendant’s favor with regard to
Plaintiff’s claim for reimbursement of the cost of debris removal.
Accordingly, Defendant’s motion for partial summary judgment
(Docket No. 36) is granted, and the complaint is dismissed.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

June 6, 2019
Rochester, New York

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