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Steiner v. Anbrook Industries, Ltd.

United States District Court, S.D. New York

April 4, 2018


          OPINION & ORDER


         In 2002, plaintiff Brandon Steiner began to install red cedar shingles on his home. By at least 2012, he was aware that the shingles had begun to rot. Five years later, in 2017, he filed this diversity case, seeking damages. He has sued several defendants: Anbrook Industries, Ltd. (“Anbrook”), the alleged shingle manufacturer, Metro Roofing Supplies, Inc. (“Metro”), the shingle provider, SRS Distribution Inc., Metro's parent company, [1] Hemala Enterprises, Inc. (“Hemala”), the contractor who installed the shingles, and Markel International Insurance Company, Ltd f/k/a Terra Nova Insurance Co. (“Markel”), Hemala's insurance carrier.

         Plaintiff's Amended Complaint brings several causes of action. First, he brings a breach of contract claim against Hemala. Second, he brings a negligence claim against both Hemala and Metro. Third, he brings a breach of warranty claim against Anbrook. Fourth and fifth, he brings design and manufacturing defect claims against Anbrook. Sixth, he brings an additional breach of contract claim against Markel.

         Defendants Anbrook and Metro have moved for summary judgment; defendant Markel has moved to dismiss.

         For the reasons set forth below, the Court GRANTS all three motions.


         The following facts are materially undisputed and all inferences are drawn in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Plaintiff owns a home in Scarsdale, New York, on which he installed red cedar shingles, beginning in 2002. The shingles were allegedly manufactured by Anbrook, [2] sold by Metro, and installed by Hemala. By at least June 2012, plaintiff became aware of rot and degradation of the shingles. (ECF No. 86-1, Pl.'s Counterstatement of Facts (“Pl.'s Counterstatement”) ¶ 11.) In June 2012, Martin Freebern, plaintiff's contractor, assembled Radim Hemala (the contractor), and Jason Salvino (of Metro) to inspect the roof. (Id. ¶¶ 12-13.)

         Nearly two years later, on May 21, 2014, Freebern sent an email to Brooke Meeker, Anbrook's president, complaining that the roof had experienced “excessive wear and . . . rot.” (Id. ¶ 4.) He went on to reference the June 2012 meeting, stating that: “At that time we collectively agreed the installation and ventilation were performed adequately and that the roof was in poor repair.” (Id.)

         A. Additional Communication with Anbrook

         Freebern emailed Anbrook again on May 30, 2014, stating that the entire roof had been power washed and stained in 2011. (ECF No. 56-11, Meeker Decl. ¶ 6.) Nearly three years later, on January 25, 2017, Meeker received an email from Edward Schauder, Steiner's associate and representative for these purposes, asking her to explore an “amicable resolution” to the shingle issue and informing her that they were likely to instigate litigation if such resolution could not be reached. (Id. ¶ 13.) Anbrook and Schauder entered into negotiations shortly thereafter, where Anbrook offered to replace the cedar shingles at “cost.” (Id. ¶ 15.) A quote was forwarded to Schauder (by Salvino). Until litigation in this matter commenced on July 10, 2017, Meeker believed that the parties had reached resolution. (Id. ¶ 18.)

         B. Additional Communication with Metro

         There was no further communication with Metro about the shingles for several years after the 2012 site meeting. In September 2016, however, Freebern begin soliciting bids for labor and materials to replace the roof. (ECF No. 86-1, Pl.'s Statement of Additional Material Facts (“PSAMF”) ¶ 19. Schauder claims that in January 2017 Salvino told him that “over the prior five years, many people in the Northeastern region of the United States had reported problems similar to those Steiner was experiencing, ” and that “Metro's Northeast regional representative had been dealing with many such complaints.” (ECF No. 85-3, Schauder Cert. ¶ 4.) For his part, Salvino claims have told Schauder simply that he had been recently “informed by the Northeast Representative of the Cedar Bureau that the Cedar Bureau had been getting complaints about certain cedar shingles installed in the manner in which they were installed in the Steiner property.” (ECF No. 94-1, Salvino Decl. ¶ 9.) Salvino emphasized in his declaration, however, that he was neither a contractor nor an expert in roofing; rather, he was a salesman who proffered a possible opinion based on information given to him by the Cedar Bureau significantly after the sale of the shingling or the 2012 inspection. (Id. ¶ 10-14.)

         C. Anbrook's Warranty

         Anbrook's Limited Warranty contains a Warranty Registration Provision which provides, in relevant part, that the owner must complete and return the Warranty Registration Form included with any Anbrook products purchased by the customer. (Id. ¶ 19.) Anbrook has no record of any warranty ever being registered under Steiner's name; Steiner further admits that he never registered the warranty. (ECF No. 85-1, Pl.'s Counterstatement of Material Facts 2 (“Pl.'s Counterstatement 2”) ¶¶ 13-14.)

         The Limited Warranty furthermore contains two relevant explicit exclusions: 1) it states that “roofs subject to power washing in any capacity will nullify this warranty;” and 2) it states that “application of any after market products to the roof, at any time, will nullify this warranty in its entirety.” (Id. ¶ 11.)[3]

         D. Insurance Coverage

         The factual allegations discussed below are drawn from the Amended Complaint (ECF No. 32, Am. Compl.) and assumed true for the purposes of Markel's motion to dismiss.

         Markel is an insurance company headquartered in Virginia, with an office in New York. Markel was previously known as “Terra Nova Insurance Company.” (Id. ¶ 66.) Hemala provided Steiner with a Certificate of Liability Insurance from Terra Nova for the period of November 9, 2001-November 9, 2002. (Id. ¶ 65.) Markel has been unable to locate any insurance policy identified by Hemala. (Id. ¶ 13.)

         Hemala was dissolved in 2012; plaintiff claims that he is a third-party beneficiary of an insurance policy between Terra Nova and Hemala and that Markel's refusal to cover claims stemming from such policy constitute a breach of the underlying insurance policy.


         A. Summary Judgment Standard

         This Court applies the well-known summary judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary judgment may not be granted unless a movant shows, based on admissible evidence in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear the ultimate burden on a particular claim or issue, it need only make a showing that the non-moving party lacks evidence from which a reasonable jury could find in the non-moving party's favor at trial. Id. at 322-23.

         In making a determination on summary judgment, the court must “construe all evidence in the light most favorable to the non-moving party, drawing all inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005)). Once the moving party has discharged its burden, the opposing party must set out specific facts showing a genuine issue of material fact for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment, ” as “mere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks, citations, and alterations omitted).

         B. Motion to ...

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