United States District Court, N.D. New York
LAW FIRM, LLP Attorneys for Plaintiff
A. LYNN, ESQ. PATRICIA A. LYNN-FORD, ESQ.
& STORM, PLLC Attorneys for Defendants
D. STORM, ESQ.
MEMORANDUM-DECISION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE
case involves an insurance coverage dispute regarding an
incident at 301-375 West Onondaga Street, LLC's
(“Plaintiff”) property that allegedly took place
on July 13, 2017. Currently before the Court is Liberty
Mutual Fire Insurance Company, Liberty Mutual Company, and
Ohio Security Insurance Company's (collectively
“Defendants”) motion for summary judgment (Dkt.
No. 20), and Plaintiff's cross-motion for summary
judgment (Dkt. No. 27). For the reasons that follow,
Defendants' motion for summary judgment is granted,
Plaintiff's cross-motion for summary judgment is denied,
and the Court orders the clerk to enter judgment in favor of
Defendants and to close this case.
STANDARD OF REVIEW
judgment is appropriate only where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Alexander &
Alexander Servs., Inc. v. These Certain Underwriters at
Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998).
Defendants issued a commercial property
policy of insurance (Dkt. No. 20-6, the “Policy”)
to Plaintiff for the period between May 25, 2017, and May 25,
2018. (Defendants' Statement of Material Facts, Dkt. No.
20-9 at ¶ 1.) Plaintiff submitted a property loss
notice to Defendants on July 13, 2017, regarding a water loss
event it had suffered that same day. (Id. at ¶
2.) On July 14, 2017, Defendants' property claims
specialist inspected the premises with Plaintiff's
principal and its public adjuster. (Id. at ¶
19, 2017, Defendants issued a reservation of rights letter to
Plaintiff. (Id. at ¶ 7.) Defendants thereafter
hired Adam D. Cabral, P.E. (“Cabral”) to assist
in determining the cause of the loss. (Id. at ¶
8.) Cabral inspected the premises on August 17, 2017, and
issued a report to Defendants on August 24, 2017.
(Id. at ¶ 9 (citing Dkt. No. 20-4).) Based on
Cabral's report and its own investigation, Defendants
issued a partial coverage denial letter to Plaintiff dated
August 30, 2017. (Dkt. No. 20-9 at ¶ 16 (citing Dkt. No.
20-7 at 9-12).) Defendants determined that coverage for the
loss was limited to $25, 000.00 pursuant to the BP 35 09 11
endorsement of the Policy. (Dkt. No. 20-9 at ¶ 17;
see also Plaintiff's Statement of Material
Facts, Dkt. No. 28 at ¶¶ 40, 41.) Plaintiff
thereafter retained Glen L. LeComte, Jr. P.E.
(“LeComte”) to provide a report regarding the
loss. (Dkt. No. 20-9 at ¶ 18 (citing Dkt. No. 20-2 at
Factual Basis for the Loss
aside, the parties do not dispute the material details of the
incident giving rise to this action. To that end, both
experts agree water pooled on the roof and went through a
roof drain into a pipe that was clogged at an elbow joint and
water subsequently exited through the fitting between the
elbow joint and the plastic pipe entering it. Below are
excerpts of statements from each parties' respective
expert regarding the cause of the loss:
The subject water intrusion event was the result of the
clogged cast-iron roof drain piping backing up, resulting in
water seeping out of the improperly connected joints between
the original cast-iron piping and the newer plastic piping at
the roof drains.
(Dkt. No. 20-4 at 7 (Defendants' expert).)
It is my opinion that the piping failed at the joint where
the plastic piping meets the cast-iron piping and caused
water to enter the building. If a clog had simply stopped
drainage, the water would have backed up onto the roof and
moved through other roof drains, ponded or found another
infiltration point. A pipe joint failure is the likely cause
of this water inundation.
It is my opinion that the most likely cause of this water
inundation is that water could not drain through the
cast-iron joint and the pipe failed where the plastic piping
meets the cast iron joint. This is also supported by the
video depicting water entry in that location.
(Dkt. No. 20-2 at 33 (Plaintiffs expert).)
report, Cabral provided photos of the loss which further
support the two complementary opinions. To that end, below is
a photo of the clogged cast iron pipe:
No. 20-4 at 14 (cropped and border added).) And, below is a
photo showing "a plastic pipe . . . loosely inserted
with sealant into the top of the original cast iron
pipe" showing "[a] gap between the outside of the
plastic pipe and the inside of the cast-iron pipe."
at 15 (cropped and border added).)
Court thus concludes the material facts of this case are
undisputed relative to the event that caused the water
intrusion at issue. Specifically, the Court finds the
1. Plaintiff had a roof drainage system that collected water
into pipes that ran through the interior of Plaintiff's
2. At the relevant location, one pipe in the roof drain
system that ran from the roof was made of plastic and
connected to a cast-iron pipe at an elbow joint;
3. Over time, the elbow joint accumulated debris such that
the flow of water was slowed;
4. On July 13, 2017,  the drain system clogged at the elbow
joint resulting in the water having no means to egress
through the pipe;
5. A significant amount of water escaped the pipe system
through the connection between the plastic pipe and the cast
iron elbow joint.
these facts, the Court will now turn to whether Defendants
properly provided only partial coverage for the loss
described above as provided for in the Policy.
Pertinent Policy Provisions ...