25 Bay Terrace Assocs. v. Public Serv. Mut. Ins. Co.

The following documents on the motions were submitted to, and reviewed by, the Court: Plaintiffs Memorandum of Law on prejudgment interest and attorneys’ fees    (efiled document 302); Defendant’s Notice of Motion, Affirmation and Memorandum of Law, with exhibits 1-6    (efiled documents 303 -311); Plaintiffs Affirmation in Opposition, Memorandum of Law in Opposition, with exhibits A-C                  (efiled documents 319-323); and Defendant’s Affirmation in Opposition, Memorandum of Law in Opposition, with exhibits 7-8            (efiled documents 324-327). DECISION and ORDER   Plaintiff, the owner/manager of a 96-unit apartment complex in Staten Island, had brought suit against the defendant, its insurer, for damage to the property’s roof, hallways and apartments from Hurricane Irene on August 28, 2011. The case was tried before a jury,¹ which rendered a verdict on January 27, 2017, finding damages of: $500,000 for the roof, interior and “stop gap” costs, plus $270,000 in legal fees (with another $3,000 for construction consultants). Some two weeks after the initial round of post-trial papers were submitted, an Order of Rehabilitation was issued in Illinois on March 16, 2017, enjoining the further prosecution of any claim, action or proceeding against Public Service Mutual (People of the State of Illinois, ex rel. v. Public Service Insurance Company, et al., Case No 17 CH 3790 [Cir Ct, Cook Co, II, Chancery Div). According full faith and credit to such Order, this Court on May 17,2017 stayed further prosecution of Bay Terrace's case against PSM (55 Misc 3d 1218 [A]). On August 10, 2020, the Illinois court issued an Agreed Order to the recommendation of the Rehabilitator that the $500,000 award for contractual damages would proceed in New York, while the professional fees portion of $273,000 would remain with the liquidation court. Accordingly, this Court lifted its stay on October 21, 2020 — with respect to the awarded contractual damages. On November 17, 2020, the parties submitted their opposition round of motion submissions; along with the pre-stay submissions, the briefed issues on contractual damages essentially come down to: * Public Service Mutual would have this Court direct a verdict in its favor, set it aside for new trial or reduce the damages award to account for co-insurance; and * Bay Terrace seeks an order fixing pre-judgment interest. Moving in the other direction, Public Service Mutual would toll interest on any damages for the three and a half years of the Illinois Court’s injunction. * * * The parties agreed — and such was reflected in the verdict sheet — that to be covered under the insurance policy, any damage would have to have been “caused by Hurricane Irene’s winds on its fascia.”² Fascia are the bands that run under the edge of the roof; in this case, two coats of aluminum. It was not disputed that about 400 linear feet of fascia were damaged on defendant’s building. PSM’s consulting engineer, Terence Kadlec inspected the property on October 20, 2011 and issued a report indicating that the roof was poorly maintained, which was the cause of water damage to the interior. Mr. Kadlec testified at trial, with a sure grasp of the more than 100 photos he took of the roof, pointing out spots that indicated poor maintenance, as well as ponding, which, Kadlec explained, indicated poor drainage. But the jury was entitled to credit the testimony of defendant’s witnesses — engineer Richard Trieste, contractor Jack Shulman and Alan Preto, a roofer and roofing contractor — who testified that the damage was caused by the roof fascia tearing away from the building during Irene, which allowed water to breach the interior and that the roof had to be replaced. Supporting this conclusion was that the roof was less than ten years old and Mr. Preto had been the roofing contractor inspecting the roof and performing minor repairs on it. Evidence was submitted that ponding was a normal occurrence on flat roof and that it had rained the day Mr. Kadlac visited Bay Terrace. Moreover, the jury had the opportunity to evaluate Kadlec’s report in light of what Brian Poole, PSM’s adjuster may have concluded and conveyed upon visiting Bay Terrace on September 22 and 28, 2011. Kevin Springer, the day-to-day manager and co-owner with his father, Howard, testified that there had never been leaks from the roof that affected the hallways or apartments of 25 Bay Terrace. In addition, we heard from two longtime tenants, William Backof and Joseph Gill, who testified that they had never experienced any leaking from the roof prior to August 28, 2011. * * * For a court to direct a verdict as a matter of law, it must be shown that there was “no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial.” Cohen v. Hallmark Cards, 45 NY2d 493, 499; and see Guss v. City of New York, 147 AD3d 731, 2d Dept. As for ordering a new trial because a verdict is contrary to the weight of evidence, the standard is whether “the jury could not have reached the verdict on any fair interpretation of the evidence.” Nicastro v. Park, 113 AD2d 129, 134 (2d Dept). This jury’s $500,000 damages award, including $300,000 for the roof³ and $150,000 for interior damage, rationally and fairly reflected the evidence. Defendant argues that the amount of damages was based on using replacement cost valuation, rather than the actual cash value method; that Bay Terrace was not entitled to use the former because they did not engage in any repairs or restoration. The matter was dealt with at length during trial; Questions 3 and 6 on the verdict sheet reflected the second paragraph of the adapted charge based upon PJI 4:49 (“Insurance, Amount of Recovery”): To determine that dollar amount for Question 3 and 6, you will decide the cost of restoring the interior and the roof to its condition prior to Hurricane Irene, taking into consideration any evidence you have heard concerning the original cost of the building (or such elements thereot); its market value; its condition prior to Irene; and plaintiffs statements concerning the value of the property (or such elements thereof). Public Service Mutual challenges the $500,000 damages award as inconsistent because it was 70 percent of what Bay Terrace had claimed. That a jury awards an amount in contractual damages not matching what a plaintiff had claimed is not grounds for upsetting a verdict. Moreover, the Second Department, in deciding the dismissal motion in this case, stated “The estimated loss sustained by the plaintiff was in excess of $500,000…” 144 AD3d 665 at 666 (November 2, 2016). Bay Terrace, in its November 17, 2020 submission, contends that PSM did more than deny coverage for the claimed damage⁴ — it repudiated the contract of insurance, thereby (i) entitling plaintiff to pre-judgment interest⁵ and (ii) barring PSM from relying on the policy’s provision for co-insurance. According to the submission, “because the jury found in Bay Terrace’s favor on its claim for bad faith, i.e., that PSM intentionally disclaimed coverage without basis, the jury necessarily had to find that the insurer had repudiated liability” (footnote 6 of document 323).⁶ The Court does not conclude that the jury finding of bad faith necessarily implicates repudiation. The two concepts can be said to occupy different time frames; bad faith is more in the nature of a continuing offense, arising from a series of acts or omissions. Secondly, while bad faith and the amount of professional fees were separate questions on the verdict sheet (Questions 8 and 9), it is arguably part of an issue that the Illinois Circuit Court was not prepared to return to this Court. Moreover, the award of interest in this situation may lack sufficient precedential basis. Plaintiff states “That no New York court has awarded attorneys’ fees in a first-party property dispute,” although it goes on to argue that this is “due to the fact that the insureds in those cases had not pled bad faith,” citing Sukup v. State of New York, 19 NY2d 519; Liberty Surplus Ins. Corp. v. Segal Co., 420 F.3d 65, 2d Cir.; and Grinshpun v. Travelers Cas. Co. of Conn. 23 Misc.3d 1111(A), Supreme Court, Kings County (document 323, pages 26-27). Defendant cites Santoro v. Geico, 117 AD3d 1026, 2d Dept. Without a finding of repudiation, pre-judgment interest does not obtain, and a consideration of coinsurance can go forward. Bay Terrace’s opposition to coinsurance is two-fold; it was not timely raised, and its own lower valuation of the property would not trigger the coinsurance contractual formula. The policy, admitted into evidence at trial, contains a coinsurance condition with a formula related to valuation and a step-by-step example (efiled document 2). The $9,243,939 valuation figure set by defendant was contained in Brian Poole’s report of October 19, 2011 (“date calculated”), available as an exhibit to defendant’s affirmation in its February 1, 2016 motion submission (document 181). Coinsurance was not pled specifically; PSM would rely on its Fifth Affirmative Defense asserting a breach of general policy terms and condition.⁷ Such failure to particularize an affirmative defense may operate as a waiver or an omission that estops defendant due to its prejudicial effect. With that said, the Court is not persuaded that CPLR §3018(b) was violated, or by the cases plaintiff cites: Albert J. Schiff Associates, Inc. v. Flack, 51 NY2d 692; Mt. Vernon Fire Ins. v. Riccobono, 1999 WL 777863, SD NY; or Federated Dept. Stores, Inc. v. Twin City Fire Ins. Co., 28 AD3d 32, 1st Dept. To the extent necessary, the Court grants defendant’s application to conform its pleadings to the evidence, pursuant to CPLR 3025(c) and Kimso Apts., LLC v. Gandhi, 24 NY3d 403. For its part, Bay Terrace requests that the Court take judicial notice of the New York City Property Assessment Rolls and Notices of Property Value that were issued on the Premises for the tax years 2011 and 2012, which show a market value of $2,140,000 and $2,156,000, figures based upon the income the property received or could have received (documents 322 and page 28 of document 323). Plaintiff knew of the 9.2 million dollar valuation. Defendant did not know of the City’s tax assessment, nor was there a showing that it should have known.⁸ The coinsurance provision reduces proportionally the payment for loss if the amount of coverage falls below 80 percent percent of the property’s value. This applies to partial, not total losses (Magie v. Preferred Mut. Ins Co, 91 AD3d 1232, 4th Dept). Brain Poole testified at trial and defendant introduced at trial that the property had been valued at $9,243,939. Eighty percent of the $9,243,939 valuation is $7,395,151, which the policy’s $6,000,000 limit did not meet. Thus, the $500,000 award for property damage to 25 Bay Terrace Associates must be reduced to the ratio that $6,000,000 limit bears to $7,395,151, or $405,671. Further, the policy contains a deductible of $ 1,000 so that the resulting contractual amount in property damage to be awarded is $404,671. Finally, defendant, in the conclusory paragraph of its November 17, 2020 submission, seeks to toll interest from the March 16, 2017 date of the Illinois Order to November 5, 2020, when this Court’s Order lifting the stay was entered (document 318). No precedent is supplied therefor. The Illinois Circuit Court’s Order enjoined PSM from transacting any business, disposing of any company records or assets, or from prosecuting any legal claim; it was silent on tolling the value of creditors’ claims (document 325). Defendant’s application to toll interest is denied.⁹ * * * NOW therefore, in view of the foregoing, IT IS ORDERED, that plaintiffs motion 01 OR is denied; and IT IS FURTHER ORDERED, that defendant’s motion 011R is denied except with respect to the application of contractual co-insurance and deductibility to the jury’s award, resulting in an award of $404,671, with statutory interest from January 27, 2017. The County Clerk is directed to enter judgment accordingly. A copy of this Order with notice of entry shall be served upon the County Clerk. Dated: November 25, 2020