405 Condo Associates v. Greenwich Insurance
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Judge Shira Scheindlin
405 Condo's Manhattan building was damaged by Hurricane Irene in 2011. Wind allegedly peeled back roof flashing, allowing rain to infiltrate the premises causing widespread interior damage. 405 incurred over $204,000 in repair costs to its roof, windows, and interior. Insurer Greenwich denied 405's claim for $208,411, finding that the building did not sustain damage from a covered loss such as wind damage before it being damaged solely seepage or wind-driven rain. In 405 Condo's $250,000 indemnification action the court barred testimony by 405's expert Rosenzweig under Daubert v. Merrell Dow Pharmaceuticals. Rosenzweig's report neither mentioned what material was used to make the flashing, nor approximated wind speeds needed to cause the flashing to peel. Nor did Rosenzweig personally examine 405's roof until eight months after the damage occurred and repairs completed. Thus his testimony was speculative and did not meet Federal Rule of Evidence 702's reliability requirement. However, 405 presented enough evidence of damages to survive judgment. If believed, testimony by its managing partner supported the theory that wind gusts, rather than non-covered events such as rainfall, caused the subject damage.