The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
Before the Court are Defendant's motion for summary judgment and
Plaintiffs cross-motion for partial summary judgment. Defendant also has
moved to strike certain affidavits submitted by Plaintiff in support of
its motion for summary judgment.
The Court has considered thoroughly all of the submissions related to
these motions. For the reasons set forth below, Defendant's motion to
strike Joseph Gasperino Jr.'s Affidavit ("Gasperino Affidavit") and Serge
Roux's Affidavit ("Roux Affidavit") is denied. Defendant's motion for
partial summary judgment and Plaintiffs cross-motion for partial summary
judgment are denied.
The following factual recitation is based on the parties' statements of
material facts pursuant to Local Rule 56.1 and affidavits submitted in
support of the motions for summary judgment. The facts outlined below are
undisputed except as otherwise noted.
Defendant issued a policy of insurance for the period November 1, 1997
to November 1, 1998, under which it insured Plaintiffs building against
all risk of loss, subject to certain exclusions. Pl.'s Stmt. in Supp. of
Cross-Mot. ¶ 1. On November 2, 1998, Plaintiffs insurance group, the
United Jewish Appeal-Federation of Jewish Philanthropies ("UJA"), gave
Defendant written notice of the loss that is the subject of this action.
Id. ¶ 3.
On May 21, 1998, Peter Corsell Associates ("PCA"), Plaintiffs
designated engineering expert in this case, had provided Plaintiff with a
proposal to, among other things, inspect the building's facade and
"[i]nvestigate and evaluate to repair the various elements of the
facade." PCA Proposal, dated May 21, 1998, at B, Ex. 3 to Sade Aff.
("Proposal"). On or about July 1998, the New York City Housing Authority
Development Corporation inspected the Building and issued a report
concluding that the Building needed maintenance and noting that major
physical improvements were planned in connection with "Local Law 10 work."
Physical Inspection Report, Ex. 12 to Sade Aff.
On July 8, 1998, Serge Roux, Senior Associate of PCA, provided
Plaintiff with a preliminary report stating that: "blisters, fishmouths
were observed at many locations of the roof" "[t]he parapets were found
to be in poor condition[;]" "[l]oose and spalled bricks were observed at
many locations of both the inboard and outboard faces of the parapets;"
"[t]he parapet wall was found to be leaning at one location at the east
elevation;" and that PCA's "investigation of the exterior wall [was]
still in progress" but that "[m]asonry cracks, loose bricks and corroded
shelf angles were observed at many locations of the exterior walls." PCA
Preliminary Building Facade Investigation, 1-2 at F, Ex. 3 to Sade Aff.
Roux concluded the preliminary report by opining that these conditions
were hazardous and recommending that a shed be constructed along the
elevations immediately. Id. In a letter drafted for Plaintiffs public
adjuster, PCA summarized the results of its investigation, commenting on
the following areas: "[m]issing, damaged (snapped) and inadequate wall
ties;" "[m]issing or improperly
installed soft (relieving) joints;" and
"[i]nadequate flashing designed and installation." Letter to John Panico
dated March 9, 1999, II.B., Ex. 5 to Sade Aff. ("Roux Letter, dated March
9, 1999"). PCA concluded that "the lack of soft joints and inadequate
flashing are the primary causes of the observed wall failure. . . . These
conditions are still active and must be repaired to avoid the further
collapse of the wall." Id.
In a letter dated March 30, 2000, Defendant provided its coverage
analysis determination to Plaintiff. Letter to Susan Cannavo dated March
30, 2000, Ex. 13 to Sade Aff. Defendant advised Plaintiff that it was
denying the claim because it found no liability under the Policy and
because Plaintiff had failed to give timely notice to Defendant. Id.
The challenged Roux affidavit, dated May 10, 2001, concludes that water
infiltration, movement and vibrations of the facade, snapping of the wall
ties, scaling rust, displaced shelf angles, thermal pressure on the
masonry and other events were the efficient causes of the collapse of the
facade. Roux Aff. ¶¶ 6, 12. Roux asserts that there were no
standards, codes, or ordinances requiring the use of soft joints in the
construction of buildings at the time when 3450 Wayne Avenue was built.
Roux Aff. ¶ 9.
Motion to Strike Affidavits
Defendant has moved to strike the affidavits of Serge Roux and Joseph A.
Gasperino, Jr., which were submitted by Plaintiff in response to
Defendant's motion for summary judgment and in support of Plaintiffs
cross-motion for partial summary judgment. Defendant asserts that the
Roux and Gasperino affidavits were submitted in violation of Rules 26
(a)(2)(B), 26(e)(1), 37(c)(1) and 56 (e-t) of the Federal Rules of
Federal Rule of Civil Procedure 26(a)(2)(B)
requires an expert witness' report to:
[C]ontain a complete statement of all opinions to be
expressed and the basis and reasons therefore; the
data or other information considered by the witness
in forming the opinions; any exhibits to be used as
a summary of or support for the opinions;. . . .
Fed. R. Civ. P. 26(a)(2)(B). Rule 26(e)(1) requires that a party
supplement any expert report, materials or testimony if the party learns
that the information previously disclosed under Rule 26 "is incomplete or
incorrect and if the additional or corrective information has not