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MONTEFIORE MEDICAL CENTER v. AMERICAN PROTECTION INS. CO.

September 27, 2002

MONTEFIORE MEDICAL CENTER, PLAINTIFF,
V.
AMERICAN PROTECTION INSURANCE COMPANY, DEFENDANT



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

OPINION AND ORDER

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.

BACKGROUND

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.

DISCUSSION

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 Civil Procedure.

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 otherwise ...


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