United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge.
to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this matter to the undersigned to conduct all
proceedings in this case, including the entry of final
judgment. Dkt. #13.
Matos, d/b/a Certified Enterprises, LLC, seeks reimbursement
pursuant to an insurance policy for damages to his business
premises and contents following an alleged burglary and fire
at 1054 Broadway, Buffalo, New York, on September 23, 2011.
Dkt. #1-1, p.2.
before the Court is: (1) defendant Peerless Insurance
Company's (“Peerless'”), motion to compel
(Dkt. #18); (2) plaintiff's motion for partial summary
judgment seeking liability on his breach of contract claim
and to compel compliance with discovery demands (Dkt. #19);
and (3) defendant's motion for partial summary judgment.
Dkt. #26. For the following reasons, defendant's motion
to compel Mr. Powers' deposition (Dkt. #18), is granted;
plaintiff's motion for partial summary judgment (Dkt.
#19), is denied; plaintiff's motion to compel (Dkt. #19),
is granted in part and defendant's motion for summary
judgment (Dkt. #26), is granted in part.
purchased the building at 1054 Broadway Street, Buffalo, New
York, on March 4, 2009 for $60, 000. Dkt. #22-2, p.7 &
Dkt. #31-10, ¶ 9. Plaintiff purchased the lot in 2010
for $825. Dkt. #31-10, ¶ 9. Plaintiff and his
girlfriend, Anita Rodriguez, operated a custom printing
business, Certified Enterprises, Inc., at the premises. Dkt.
#19-8, ¶ 3. Plaintiff improved the premises by
renovating the first floor for the printing business,
replacing two furnaces and two hot water heaters, installing
ductwork to heat the third floor, running water to the third
floor, and installing a shower on the second floor. Dkt.
#31-10, ¶ 9. The first floor of the building, which was
the largest, was utilized for the printing business; the
second floor is used for personal storage; and the third
floor was utilized by kids from the neighborhood to hang out
so that they were off the streets. Dkt. #19-17, pp.5-7.
issued a business owners policy to plaintiff insuring the
property under policy number 8599022, from January 27, 2011
to January 27, 2012. Dkt. #19-7, ¶ 4. The limit of
insurance for the building (replacement cost) is $703, 040.00
Dkt. #23-4. Plaintiff avers that the insurance agent chose
the coverage amount. Dkt. #30-5, ¶ 2.
avers that, at approximately 1:30 am on September 23, 2011,
as he was locking the back door of the premises, two
individuals came up from behind him and put a gun to his
head. Dkt. #19-8, ¶ 5. The individuals forced plaintiff
back inside the building and one individual demanded that
plaintiff lie face down on a couch while the other individual
took possession of two laptop computers and a Play Station 3.
Dkt. #19-8, ¶ 6. The individuals smashed the
surveillance equipment, poured gasoline on the floor, started
a fire and ran away. Dkt. #19-8, ¶ 7. Plaintiff called
911 and emergency personnel arrived to extinguish the fire
and investigate the incident. Dkt. #19-8, ¶ 8. Plaintiff
arrived home at approximately 5:00 am. Dkt. #19-8, ¶ 9.
approximately 8:00 am on September 23, 2011, plaintiff
received a telephone call at his home from NFA manager Angelo
Puccio advising that another fire had been started with
gasoline at the back entrance to the building. Dkt. #19-8,
¶ 10. Mr. Puccio advised that the firefighters
extinguished the flames, but failed to sufficiently secure
the entrance after knocking down the door to check inside the
building for flames, allowing thieves to take a television
and penny jar and to break open an empty cash register. Dkt.
#19-8, ¶¶ 10-11.
email dated October 21, 2011, Christian Waddington, Senior
Investigator in the Special Investigations Unit of Liberty
Mutual, Peerless' parent company, advised Donald
Tolhurst, Senior Claims Specialist in the Commercial
Insurance Claims Department for Liberty Mutual Insurance,
My investigation at this point is complete. I am waiting on
Buffalo fire to get the surveillance from inside. They are in
process of accessing that and will call me. That is the only
hold up. I agree that the circumstances are very odd, but at
the moment, we cannot refute his statement unless he says
something contrary to Buffalo fire, but they are not going to
interview him until they see the surveillance. Bottom line,
at this point we are waiting on Buffalo fire. Just want you
to know that so you can decide if that is cause enough to
hold up his claim.
February 15, 2012, plaintiff submitted a claim for damages in
the amount of, inter alia, $76, 863.30 for the
building and $52, 459.99 for business personal property. Dkt.
#18-2, p.41 & Dkt. #19-8, p.8. An adjuster assigned by
National Fire Adjustment Co., Inc. (“NFA”),
Angelo Puccio, avers that in cases of partial building
losses, such as the instant case, the insurance company
owes the lesser of the amount of insurance; the actual cash
value of the building; or the cost of repair with material of
like kind and quality within a reasonable time after such
loss. In this particular case, since it was a partial
building loss and not a total, and the actual cash value of
the building and the amount of insurance exceeds the cost to
repair, the limiting factor is the cost to repair which is
$76, 863.30, not the cost to repair less depreciation of the
#31-11, ¶ 9.
calculated the replacement cash value of the building at $49,
688.16, the actual cash value of damage to the building at
$43, 876.14 and the actual cash value of damage to the
building's contents at $33, 701.11. Dkt. #30-2, p.13
& Dkt. #31-5, pp.24 & 26.
insurance policy provides that Peerless will, at its option,
either: (1) pay the value of lost or damaged property; (2)
pay the cost of repairing or replacing the lost or damaged
property; (3) take all or any part of the property at an
agreed or appraised value; or (4) repair, rebuild or replace
the property with other property of like kind an quality.
Dkt. #23-4, p.68. The policy provides that Peerless will
determine the value of Covered Property as follows:
d. (1) At replacement cost without deduction for
depreciation, subject to the following:
* * *
(a) You may make a claim for loss or damage covered by this
insurance on an actual cash value basis instead of on a
replacement cost basis. In the event you elect to have loss
or damage settled on an actual cash value basis, you may
still make a claim on a replacement cost basis if you notify
us of your intent to do so within 180 days after the loss or
(b) We will not pay on a replacement cost basis for any loss
(i) Until the lost or damaged property is actually repaired
or replaced; and
(ii) Unless the repairs or replacement are made as soon as
reasonably possible after the loss or damage.
(c) We will not pay more for loss or damage on a replacement
cost basis than the least of:
(I) The cost to replace, on the same premises, the lost or
damaged property with other property:
i. Of comparable material and quality; and
ii. Used for the same purpose; or
(ii) The amount you actually spend that is necessary to
repair or replace the lost or damaged property.
Dkt. #23-4, pp.68-69.
email dated April 27, 2012, Mr. Waddington advised Mr.
Tolhurst of the completion of plaintiff's Examination
Under Oath and opined that there are
no findings or evidence that the insured set the fire. At
least not based on his testimony. We still do not have the
surveillance from ATF. It appears that he was the victim of a
hit. We highly suspect that he was into drugs and might have
been a target of a rival, but cannot prove that he is