United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, DISTRICT JUDGE
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,  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.
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.
Anbrook and Metro have moved for summary judgment; defendant
Markel has moved to dismiss.
reasons set forth below, the Court GRANTS all three motions.
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).
owns a home in Scarsdale, New York, on which he installed red
cedar shingles, beginning in 2002. The shingles were
allegedly manufactured by Anbrook,  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.)
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
Additional Communication with Anbrook
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.)
Additional Communication with Metro
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. ¶
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”) ¶¶
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. ¶
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.
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.)
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.
Summary Judgment Standard
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.
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).
Motion to ...