MEMORANDUM AND ORDERINTRODUCTION Plaintiff New York Central Mutual Insurance Company (“Plaintiff”), as subrogee of Paul and Karen Mazzola, brought this damages-only subrogation action against Defendant TopBuild Home Services, Inc. (“Defendant”). Presently before the Court is Defendant’s motion for partial summary judgment pursuant to Fed. R. Civ. P. (“Rule”) 56. For the reasons set forth below, Defendant’s motion is granted to the extent that Plaintiff’s recovery against Defendant is limited as a matter of law to the diminution in value of the subject property attributable to Defendant’s conceded negligence.BACKGROUNDThe following relevant facts are taken from the Parties’ Rule 56.1 Statements, and are uncontested unless otherwise stated.Plaintiff’s subrogors, Paul and Karen Mazzola (“Mazzolas”), are the original owners of the real property located at 27 Ferraro Drive in Holbrook, New York (“Property”), which is currently owned solely by Paul Mazzola. (P.’s R. 56.1 Stmt. [ECF No. 18-24] 2.) The Mazzolas acquired the Property in 1990. (Id. 3.) In or around September 2011, Defendant installed blown-in insultation in certain parts of the Property. (Id. 4.) On November 29, 2015, a fire occurred in the Property causing damage to the exterior and interior. (Id. 5.) Plaintiff claims that Defendant’s insulation work caused the fire. (Id. 6.) For purposes of this litigation, Defendant has conceded liability. (Id. 7.)According to Plaintiff, the value of the Property diminished by $270,000. (Id. 8.) Plaintiff’s designated real estate appraisal expert performed a retrospective market analysis that concluded that before the fire, the real property (land and improvements) had a value of $570,000. (Id. 9.) Following the fire, the value of the real property (vacant land, the in-ground pool, and the house’s original foundation) was $300,000. (Id. 10.) Given the extent of the damage, the appraisal expert determined the real estate’s diminution in value by subtracting the value of the post-fire remaining “vacant land” from the pre-fire value of $570,000. (Id. 11.) Another appraisal done at Mrs. Mazzola’s request in 2012 by a different certified appraised found that the Property was worth $540,000. (Id. 13.)The fire damaged 25 to 30 percent of the structure on the Property. (Id. 14.) The Parties dispute whether the fire and smoke damage to the house was limited to this 25 to 30 percent estimate, as Defendant contends, or if the entirety of the house was damaged to some degree, as Plaintiff contends. (Id.) At the time of the fire, the Mazzola’s house was insured by Plaintiff under a homeowner’s insurance policy (“Policy”). (Id. 15.) The Policy was an insurance contract that was entered into by Plaintiff and the Mazzolas, whereby the latter paid the former $2,319 in annual premiums for certain coverage, including, coverage for physical damage to the Property. (Id. 17.)After the fire, Mr. Mazzola submitted a claim to Plaintiff for insurance coverage under the Policy through his public adjuster, Jerrold Kotler. (Id. 19.) Thereafter, Plaintiff assigned insurance adjuster Terrance Walker to adjust the loss on its behalf. (Id. 20.) Mr. Walker investigated and adjusted the loss, and negotiated a settlement of Mr. Mazzola’s structural repairs with Mr. Kotler. (Id. 21.) Mr. Kotler and Mr. Walker arrived at an agreed-upon total payment that exhausted the Policy’s limits, as well as the Policy’s additional guaranteed replacement cost coverage limit and the “other structures” and “code update” limits. (Id. 22.) There was no appraisal of the Property before or after the fire. (Id.
