Expert Affidavit Insufficient To Defeat Summary Judgment For Insurer

In decisions dated July 10, 2024, in two related actions, Justice Margaret A. Chan granted summary judgment dismissing various claims and cross claims brought against an insurer in Argonaut Insurance Company a/s/o 839 West End Inc. and NIV Realty v. Wayne’s Eco-Friendly Solutions, LLC and Master Fire Systems, Inc., Index No. 162422/2019 (Case 1); Utica First Ins. Co. v Wayne's Eco-Friendly Solutions LLC, Index No. 154187/2020 (Case 2).

Both cases arose from a 2018 fire at a Manhattan restaurant.

In Case 1 (“Argonaut Insurance”) plaintiff Argonaut, as subrogee for owner of the building that housed the restaurant, sued the restaurant’s owner (Trak Food Inc.), the fire suppression system servicer (Master Fire Service System Inc.), and kitchen exhaust service contractor (Wayne's Eco Friendly Solution LLC) for negligence, and the defendants cross-claimed against each other for indemnification. In Case 2 (“Utica First Ins.”), plaintiff Utica, as subrogee of Trak, sued Master Fire and Wayne's Eco-Friendly for negligence from the same incident, and those defendants again cross-claimed for indemnification.

Justice Chan granted Wayne’s Eco Friendly’s motion for summary judgment dismissing all claims and cross-claims against it in both actions.

Wayne's Eco-Friendly had performed regular maintenance every three months as required by the New York City Code. While certain areas were inaccessible on their last visit before the fire due to issues with the ductwork, Trak had signed off on that work after being so advised. Utica First Ins., pp. 2-3. A 70-page expert report from Argonaut’s expert found that Trak and Master Fire “bore some responsibility for the cause and spread of the fire”, but “did not mention Wayne's Eco-Friendly at all”, much less assign it responsibility. Id., pp. 3, 4.

Trak and Utica argued that an issue of fact was created by an affidavit from Bruce Rottner, a consultant who stated that the grease staining found in the wake of the fire was inconsistent with a full and proper cleaning having been done on the last service visit and that, if Wayne Wayne's Eco-Friendly’s had “cleaned the system to bare metal, as required, the severity and spread of the fire could have been mitigated.” Utica First Ins., p. 5.

The Court disagreed, finding that Rottner’s affidavit “consists of his observations, unsupported assertions, and unexplained findings” and was based on the mistaken premise that his inspection occurred three weeks after the fire when in fact it occurred more than four weeks after. In addition, “Rottner never clarified the methodology he employed during his inspection of the exhaust system, apart from his personal observation;” “does not attest to observing the grease in the inaccessible areas of the duct system, or to conducting any other relevant tests [; and] Rottner also fails to support his affidavit with tangible evidence like photographs of the grease in the duct system . . . .. An expert opinion that is contradicted by the record cannot defeat summary judgment (see Dasent v Schechter, 95 AD3d 693 [1st Dept 2012]).” Utica First Ins., pp. 6-7.

Trak and Master Fire’s crossclaims for contractual indemnification and breach of contract were dismissed, “as there is no evidence of any contracts between Wayne's Eco-Friendly, Trak, and Master Fire.” Argonaut Insurance, p. 7.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning insurance coverage issues.