Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Atlantic Specialty Ins. v. AE Outfitters Retail Co.

United States District Court, S.D. New York

September 20, 2013

ATLANTIC SPECIALTY INSURANCE et al., Plaintiff,
v.
AE OUTFITTERS RETAIL COMPANY, Defendant

Page 279

For Atlantic Specialty Insurance, Company as suborgee of Bryant Publications and The Solomon R. Guggenheim Foundation, National Surety Corporation, as suborgee of Peter Brant, 142 Mercer Street, LLC, doing business as Lure Fish Bar, Plaintiffs: Peter G. Rossi, LEAD ATTORNEY, Cozen O'Connor, New York, NY; Mark T. Mullen, PRO HAC VICE, Cozen O'Connor (Philadelphia), Philadelphia, PA; Paul R. Bartolacci, PRO HAC VICE, Cozen, OConnor, Philadelphia, PA; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For Sompo Japan Insurance Co. of America, Consolidated Plaintiff: Scott J Sheldon, Mound Cotton Wollan & Greengrass (NYC), New York, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For Federal Insurance Company, as subrogor of, Take Two Interactive Software, Inc., Great Northern Insurance Company, as subrogor of Ryan Brant, as subrogor of Gwenn Brant, Consolidated Plaintiffs: Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For AE Outfitters Retail Company, Defendant: Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY; Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, Defendant: Darren R. Marks, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Steven Dean Phillips, Carroll, McNulty & Kull, New York, NY; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For Thomas W. Hut, Defendant: Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For American Eagle Outfitters, Inc., Consolidated Defendant: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For Yannuzzi & Sons, Inc., Yonkers Contracting Company, Inc., York Hunter Construction, L.L.C., Ziegenfuss Drilling, Inc., Consolidated Defendants: Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For AE Outfitters Retail Company, other, American Eagle Outfitters, Inc., ThirdParty Plaintiff: Steven Dean Phillips, LEAD ATTORNEY, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For 575 Broadway LLC, 575 Broadway Associates L.P., 575 Broadway Corporation, ThirdParties Defendants: Michael Robert Schneider, Carroll, McNulty & Kull, New York, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For 575 Broadway LLC, 575 Broadway Associates L.P., Cross Defendants: Michael Robert Schneider, Carroll, McNulty & Kull, New York, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For American Eagle Outfitters, Inc., ThirdParty Plaintiff: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, ThirdParty Defendant: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For 575 Broadway LLC, 575 Broadway Associates L.P., 575 Broadway Corporation, Counter Claimants: Michael Robert Schneider, Carroll, McNulty & Kull, New York, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, Counter Defendant: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY. Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For AE Outfitters Retail Company, ThirdParty Defendant: Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

For 575 Broadway LLC, 575 Broadway Associates L.P., 575 Broadway Corporation, ThirdPartys Defendants, Counter Defendants: Michael Robert Schneider, Steven C. Capobianco, Carroll, McNulty & Kull, New York, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, ThirdParty Plaintiff: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For AE Outfitters Retail Company, ThirdParty Plaintiff, Counter Defendant, Cross Defendant: Steven Dean Phillips, LEAD ATTORNEY, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

For Integrated Systems and Power, Inc., Cross Claimant, Counter Claimant, Cross Defendant, Counter Defendant: Michael Peter Mezzacappa, Kaufman Borgeest & Ryan LLP (V'lhalla), Valhalla, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, AE Outfitters Retail Company, Cross Defendants: Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

For AFA Protective Systems, Inc., Cross Claimant: Steven Dean Phillips, LEAD ATTORNEY, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY; Steven P. Orlowski, Lester, Schwab, Katz and Dwyer LLP, New York, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, Cross Defendant: Robert Charles Sheps, LEAD ATTORNEY, Sheps Law Group, P.C., Melville, ny; Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For AE Outfitters Retail Company, Cross Defendant: Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY; Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY.

For American Eagle Outfitters, Inc., i/s/h/a AE Outfitters Retail Company, Cross Claimant: Darren R. Marks, Steven Dean Phillips, Smith, Mazure, Director, Wilkins, Young & Yagerman, PC, New York City, NY; Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY; Robert Charles Sheps, Sheps Law Group, P.C., Melville, ny.

For AE Outfitters Retail Company, Counter Defendant: Steven C. Capobianco, Carroll, McNulty & Kullm, New York, NY.

OPINION

Page 280

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiffs in this action, subrogees of tenants and occupants of a six-story building at 575 Broadway (" the building" ), have brought claims for property damage sustained as a result of a fire in the building in January 2006 against the tenant of the building, American Eagle Outfitters, Inc. (" AE" ). AE has brought third-party actions based on negligence and breach of contract against the building's owners, 575 Broadway, LLC, 575 Broadway Associates L.P., and 575 Broadway Corporation (collectively, " 575 Broadway" ), and against the company that maintained the fire alarm system, Integrated Systems and Power Inc. (" ISPI" ). We will refer to ISPI and 575 Broadway collectively as the " defendants." The defendants have joined together to bring the instant motion pursuant to Federal Rules of Evidence 702, 401, and 403 to preclude an inspection and testing of the building's fire alarm system that was conducted by AE's proposed expert witness, Jeffrey Zwirn, in September 2011. They also seek to preclude Zwirn's testimony and expert report. For the following reasons, defendants' motion to preclude Zwirn's testimony and expert report is granted.

I. BACKGROUND

On January 21, 2006, a fire occurred in a six-story building located at 575 Broadway. See Complaint, filed Oct. 2, 2007 (Docket # 1) (" First Compl." ), ¶ ¶ 18, 24-26; Affidavit in Support, filed Nov. 15, 2012 (Docket # 254) (" Mezzacappa Aff." ), ¶ 3. The parties dispute the cause of the fire and the course of events that took place before, during, and after the fire. We discuss the disputed facts solely to give some context to the issue of the admissibility of the opinions being offered by Zwirn.

A. AE's Version of Events and Zwirn's Proposed Testimony

Replying on deposition testimony in the case and other record evidence, Zwirn's expert report asserts that the fire originated in " [w]ood joists above solid sheet rock ceiling above the southwest corner of the 1st floor duct room" of the building. See Letter from Jeffrey D. Zwirn to Steven D. Phillips, Esquire, dated Jan. 31, 2012 (annexed as Ex. U to Mezzacappa Aff.) (" Zwirn Report" or " Report" ), at 5. The Report cites the testimony of Fire Marshal Ott that the cause of the fire was of " 'unknown origin' . . . most likely caused by electrical faults in the cables." Id. While combustible materials stored in the duct room (also referred to as the " marketing room" ) by American Eagle " contributed to the flame and smoke found in and emitting from the first floor duct room," that part of the fire was " extinguished as early as five minutes after FDNY arrived at the scene at 10:07 p.m." Id. The Fire Marshal concluded " that the fire discovered by American Eagle employees in the [duct room] was a 'drop down fire' resulting from the ceiling joists burning down through the sheet rock ceiling and dropping embers to the floor below." Id.

Zwirn asserts that the " initial alarm of fire was generated by the triggering of a smoke detector in the second floor . . . space," meaning that " the fire was already well up into the building when AE employees first noticed the drop down fire." Id. at 6. The Report states that the building's Fire Safety Director, Gani Haxhaj, was not properly certified and, as described further below, opines that he used a " central station activation switch" to stop the alarm system's signal from being transmitted to the fire ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.