AMAAR HOLDING INC v. TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA (2025)

MEMORANDUM AND ORDER

This insurance coverage action arises out of damage sustained by Plaintiff Amaar Holding Inc. (“Amaar Holding” or “Plaintiff”) during Hurricane Ida. Amaar Holding asserts that heavy storms on September 2, 2021 caused severe damage to the roof and interior of its building (the “Premises”) located in Queens, New York. (Verified Compl. dated July 18, 2022 (“Compl.”), Dkt. No. 1-1 ¶¶ 1, 7–8). Amaar Holding submitted a claim to its insurer, Defendant Travelers Casualty Insurance Company of America (“Travelers” or “Defendant”), for losses from the damage. (Compl. ¶¶ 5, 9). Travelers denied coverage, finding that the damage was caused not by a storm-created opening but improper roof maintenance and an insufficient drainage system. (Compl. ¶ 11; Answer dated Sept. 8, 2022 (“Answer”), Dkt. No. 5 ¶ 26; Travelers’ Mem. of Law in Supp. of Its Mot. for Summ. J. dated July 30, 2024 (“Travelers’ Mem. of Law”), Dkt. No. 26-2 at 11–12). Amaar Holding filed this action, arguing that the denial was in breach of the policy. (Compl. ¶¶ 1, 12–17). This contract claim is the sole cause of action in its Complaint. (Id.).

Travelers moved for summary judgment on July 30, 2024. (Notice of Mot. dated July 30, 2024 (“Travelers’ Mot. for Summ. J.”), Dkt. No. 26; Travelers’ Mem. of Law). For the reasons stated below, the Court concludes that there is no material factual dispute about the cause of the damage—Amaar Holding has not put forth evidence that would lead a factfinder to conclude a storm-created opening caused the Premises damage—and as such, Travelers’ motion is granted.

STANDARD FOR SUMMARY JUDGMENT

A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In determining whether summary judgment is appropriate, [the Court] must resolve all ambiguities and draw all reasonable inferences against the moving party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

The movant bears the burden of “demonstrat[ing] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” in one of two ways. Fed. R. Civ. P. 56(c)(1). It may cite to portions of the record “including depositions, documents, electronically stored information, affidavits or declarations, ․ admissions, interrogatory answers, or other materials.” Id. R. 56(c)(1)(A). Alternatively, it may show that “the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).

In moving for summary judgment or answering such a motion, litigants are required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth purported undisputed facts or, if controverting any fact, responding to each assertion. See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its position by citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R. Civ. P. 56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a purported material fact). “The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the Court will consider the evidentiary sources of the claims. Halberg v. United Behav. Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation). In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court cannot—as is true for the summary judgment motion as a whole—weigh evidence or assess the credibility of witnesses. See United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994). Furthermore, “[l]egal arguments are impermissible in any Rule 56.1 Statement and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL 1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont'l Cas. Co., No. 12-CV-412, 2013 WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule 56.1 statements and responses to each other's statements that mix factual assertions with legal argument and therefore fail to meet the requirements of Local Rule 56.1. The facts ․ are taken from those assertions contained in the Local Rule 56.1 statements that comply with Local Rule 56.1[.]” (citations omitted)). The court may not grant summary judgment based on a fact in a Rule 56.1 statement—even if undisputed—not supported by admissible evidence. E.g., Giannullo v. City of New York, 322 F.3d 139, 142–43 (2d Cir. 2003) (vacating grant of summary judgment to defendants based on facts enumerated in Rule 56.1 statement supported only by arguments in briefs rather than admissible evidence). The Court must also disregard conclusory denials that lack citations to admissible evidence. Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain factual assertions, with citation to the record. They should not contain conclusions[.]”), aff'd, 56 F. App'x 27, 29 (2d Cir. 2003). Also, where the opposing party fails to specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement by the moving party “will be deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court also does not give any consideration to hearsay, speculation, or inadmissible evidence in evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 F. App'x 128, 130 (2d Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary judgment stage[.]”); Crawford v. Dep't of Investigation, No. 05-CV-5368, 2007 WL 2850512, at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.’ ” (quoting Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff'd, 324 F. App'x 139, 143 (2d Cir. 2009).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Court finds the following facts—drawn from the pleadings, the parties’ respective Rule 56.1 statements, and supporting affidavits and exhibits attached thereto—are undisputed unless otherwise noted.

Amaar Holding is the named insured under Travelers’ commercial insurance policy number 680-0L200229-21 (the “Policy”) covering the Premises at 72-35 51st Avenue, Woodside, New York 11377 for the period of June 18, 2021 to June 18, 2022. (Travelers’ Local Civil Rule 56.1 Stmt. in Supp. of Its Mot. for Summ. J. (“Travelers’ 56.1 Stmt.”), Dkt. No. 26-1 ¶¶ 1–2; Pl.’s Local Civil Rule 56.1 Stmt. in Opp'n to Def.’s Mot. for Summ. J. (“Amaar Holding's 56.1 Stmt.”), Dkt. No. 27-2 ¶¶ 1–2; Certified Policy dated Aug. 16, 2022 (“Certified Policy”), attached as Ex. 1 to Travelers’ Mot. for Summ. J., Dkt. No. 26-7 at 1). Amaar Holding operated as a landlord for the Premises and rented out the space to commercial tenants. (Amaar Holding's 56.1 Stmt. ¶¶ 26–27; Travelers’ 56.1 Stmt. ¶¶ 26–27).

In relevant part, the Policy provides:

A. COVERAGE

We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from a Covered Cause of Loss.

․

4. Covered Causes of Loss

RISKS OF DIRECT PHYSICAL LOSS unless the loss is:

a. Limited in Paragraph A.5., Limitations; or

b. Excluded in Paragraph B., Exclusions.

5. Limitations

a. We will not pay for loss of or damage to:

(1) The “interior of any building or structure” or to personal property in the building or structure, caused by rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless:

(a) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters; or

(b) The loss or damage is caused by or results from thawing of snow, sleet or ice on the building or structure.

․

B. EXCLUSIONS

․

2. We will not pay for loss or damage caused by or resulting from any of the following:

․

d. (1) Wear and tear;

(2) Rust, corrosion, fungus, decay, deterioration, wet or dry rot, mold, hidden or latent defect or any quality in property that causes it to damage or destroy itself;

․

But if an excluded cause of loss that is listed in Paragraphs (1) through (8) above results in a “specified cause of loss”, building glass breakage or “breakdown” to “covered equipment” (only if otherwise a Covered Cause of Loss), we will pay for the loss or damage caused by that “specified cause of loss”, building glass breakage or “breakdown” to “covered equipment” (only if otherwise a Covered Cause of Loss).

․

f. Continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more.

․

3. We will not pay for loss or damage caused by or resulting from any of the following under Paragraphs a. through c. But if an excluded cause of loss that is listed in Paragraphs a. and b. below results in a Covered Cause of Loss, we will pay for the resulting loss or damage caused by that Covered Cause of Loss.

․

c. Faulty, inadequate or defective:

(1) Planning, zoning, development, surveying, siting;

(2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;

(3) Materials used in repair, construction, renovation or remodeling; or

(4) Maintenance;

of part or all of any property on or off the described premises.

If an excluded cause of loss that is listed in Paragraphs (1) through (4) above results in a Covered Cause of Loss, we will pay for the resulting loss or damage caused by that Covered Cause of Loss. But we will not pay for:

(1) Any cost of correcting or making good the fault, inadequacy or defect itself, including any cost incurred to tear down, tear out, repair or replace any part of any property to correct the fault, inadequacy or defect; or

(2) Any resulting loss or damage by a Covered Cause of Loss to the property that has the fault, inadequacy or defect until the fault, inadequacy or defect is corrected.

(Id. ¶ 3; Amaar Holding's 56.1 Stmt. ¶ 3; Certified Policy at 15, 17–18, 36, 38–40).

The Policy contains no choice of law provision, nor do the parties address what law governs. (Certified Policy; Pl.’s Mem. of Law in Opp'n to Def.’s Mot. for Summ. J. dated Aug. 29, 2024 (“Amaar Holding's Mem. of Law”), Dkt. No. 27-1; Travelers’ Mem. of Law). “A federal court exercising diversity jurisdiction must apply the choice of law analysis of the forum state.” GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 382 (2d Cir. 2006). “The New York Court of Appeals follows the ‘center of gravity’ test in identifying the jurisdiction whose substantive law governs contract disputes.” Buffalo Xerographix, Inc. v. Sentinel Ins. Co., Ltd., 544 F. Supp. 3d 345, 349 (W.D.N.Y. 2021) (quoting Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99 (1954)), aff'd, No. 21-1502, 2022 WL 4241191 (2d Cir. Sept. 15, 2022). “Under this approach, a contract of liability insurance is ‘governed by the law of the state which the parties understood to be the principal location of the insured risk ․ unless with respect to the particular issue, some other state has a more significant relationship ․ to the transaction and the parties.’ ” Id. (quoting Certain Underwriters at Lloyd's, London v. Foster Wheeler Corp., 36 A.D.3d 17, 21–22, 822 N.Y.S.2d 30 (1st Dep't 2006), aff'd, 9 N.Y.3d 928, 844 N.Y.S.2d 773, 876 N.E.2d 500 (2007)). Here, the policyholder is a New York business whose covered Premises are located in New York. Thus, New York law governs this claim. See, e.g., id. at 349 (applying New York law to a breach of contract claim because the policyholder and its premises were located in New York). Indeed, both parties have assumed the Policy is governed by New York law. (See Amaar Holding's Mem. of Law; Travelers’ Mem. of Law). See, e.g., Blodgett v. Siemens Indus., Inc., No. 13-CV-3194, 2018 WL 385477, at *5 (E.D.N.Y. Jan. 11, 2018) (“Plaintiffs’ ․ citation solely to New York law in support of their ․ claims in their prior submissions is deemed by this Court to constitute an implied consent to use New York law, which settles the choice of law issue in favor of the application of New York law.”); Travelers Indem. Co. v. Harrison Constr. Grp. Corp., No. 06-CV-4011, 2008 WL 4725970, at *3 n.5 (E.D.N.Y. Oct. 22, 2008) (applying New York law where both parties “almost exclusively” relied on New York law in their briefs, the parties resided or were incorporated in New York, and the indemnification agreement was executed in New York).

On September 2, 2021, during Hurricane Ida, heavy rains fell in Woodside, Queens. (Decl. of Michael Tracey dated July 9, 2024 (“Tracey Decl.”), Dkt. No. 26-4 ¶ 3). Water entered the Premises and caused damage to the roof and interior. (Travelers’ 56.1 Stmt. ¶ 8; Amaar Holding's 56.1 Stmt. ¶ 8; Tracey Decl. ¶¶ 1, 3). On September 16, 2021, Amaar Holding submitted a claim to Travelers for losses incurred from the storm. (Travelers’ 56.1 Stmt. ¶ 9; Amaar Holding's 56.1 Stmt. ¶ 9). On October 9, 2021, Travelers denied Amaar Holding's claim for coverage based on its inspection of the Premises, finding that the water damage fell under the Policy's exclusions. (Id. ¶ 21; Travelers’ 56.1 Stmt. ¶ 21; Answer ¶¶ 19, 26).

A little less than a year later, on July 18, 2022, Amaar Holding filed suit against Travelers in New York State Supreme Court, alleging breach of contract for falsely denying its claim. (Travelers’ 56.1 Stmt. ¶ 22; Amaar Holding's 56.1 Stmt. ¶ 22; Compl. ¶ 11). Travelers removed the case to this Court. (Notice of Removal dated Sept. 8, 2022, Dkt. No. 1). After the close of all discovery on June 11, 2024, (Min. Entry and Order dated Mar. 29, 2024), Travelers filed this motion for summary judgment. (Travelers’ Mot. for Summ. J.).

At dispute in this case is exactly how water entered the building on the day of the storm—that is, the cause of the water damage sustained by Amaar Holding's Premises. According to Amaar Holding, a piece of metal flew into the roof, lifting the roof and creating an opening (the “storm-created opening”) through which water was able to flood in. (Amaar Holding's Mem. of Law at 3). According to Travelers, however, the building's roof drains were unable to withstand the torrent of water, and the overflow of water entered the building through existing openings in the improperly maintained roof. (Travelers’ Mem. of Law at 12; Tracey Decl. ¶ 7). Neither party disputes that if Amaar Holding's theory is correct—that a storm-created opening caused the damage—it is entitled to coverage, but if Travelers’ theory is true, then no coverage exists under the Policy. (See Travelers’ Mem. of Law at 12 (“[T]he limitation which provides no coverage for interior damage due to rain without there first being a storm created opening ․ applies to exclude coverage ․ [D]efective maintenance and repair of the roof, as well as long term deterioration and wear and tear ․ are similarly excluded[.]”); cf. Amaar Holding's Mem. of Law at 3–4 (failing to address whether the Policy would provide coverage even in the absence of a storm-created opening)).

A. Amaar Holding's Proof

Joseph Esposito (“Esposito”) is Amaar Holding's contractor. (Tr. of Dep. of Joseph Esposito dated Sept. 21, 2023 (“Esposito Dep. Tr.”), attached as Ex. 7 to Travelers’ Mot. for Summ. J., Dkt. No. 26-13 at 8:09–10; Travelers’ Mem. of Law at 5). Esposito testified that on September 16, 2021, prior to any contact between Amaar Holding and Travelers regarding the water damage from Hurricane Ida, Esposito personally inspected the roof and observed “some metal sticking in the roof.” (Esposito Dep. Tr. at 39:17–20, 44:08–13). Esposito testified that the roof looked “lifted, like it was going to rip up, but ․ settled back down.”¹ (Id. at 39:24–40:01). He stated, “I think it was like a ․ piece of iron ․ Corrugated steel was what it was. It was probably[,] maybe[,] a foot big, two feet․ It was just ․ lodged into the roof[,] maybe on an angle[.]” (Id. at 41:18–42:02).

Between September 16, 2021, when Esposito inspected the roof and Amaar Holding submitted its claim to Travelers, and September 27, 2021, when Travelers came to inspect the Premises, Amaar Holding's next-door tenant repaired the alleged storm-created opening. (Id. at 40:08–41:04, 42:11–21). Esposito testified that the tenant's space was flooded from water entering through the Premises’ opening, and the tenant removed the metal and patched the opening with a piece of rubber. (Id.). Esposito stated that the tenant did not inform Amaar Holding or Esposito of this repair prior to commencement. (Id.). Esposito testified that he took no photographs of the roof after the storm and before the tenant's repair because he had intended to “leave everything alone” for Travelers. (Esposito Dep. Tr. at 40:12–17).

B. Travelers’ Proof

James DuPre (“DuPre”), a claim professional for Travelers, inspected the Premises on September 27, 2021. (Travelers’ 56.1 Stmt. ¶¶ 10, 12; Amaar Holding's 56.1 Stmt. ¶¶ 10, 12). DuPre testified that during the inspection, Esposito stated “something might have hit the roof” and caused the roof to peel back at the seams. (Id. ¶ 17; Travelers’ 56.1 Stmt. ¶ 17; Decl. of James DuPre dated July 23, 2024 (“DuPre Decl.”), Dkt. No. 26-5 ¶ 9). DuPre further testified, however, that Esposito failed to show DuPre any of the areas where the alleged damage had occurred. (Travelers’ 56.1 Stmt. ¶ 18; DuPre Decl. ¶ 9).

Amaar Holding disputes this, stating that Esposito did indeed show DuPre “the part of the roof damaged by the metal debris.” (Amaar Holding's 56.1 Stmt. ¶ 18). But Amaar Holding cites only to Esposito's testimony about his personal inspection on September 16, 2021, which occurred before Amaar Holding had even submitted a claim to Travelers. (See id.). DuPre testified that Esposito made no mention of metal stuck in the roof, (Travelers’ 56.1 Stmt. ¶ 19; DuPre Decl. ¶ 9), and there is no admissible evidence to the contrary.²

DuPre testified that he saw “no evidence that the roof lifted during the ․ storm” and indeed, according to him, “the roof membrane seams were all intact.” (Travelers’ 56.1 Stmt. ¶¶ 13–14; DuPre Decl. ¶ 8). DuPre's inspection led him to believe that any internal water damage was caused by roof drains “overwhelmed” by the rainfall and “other penetrations in the roof,” rather than “storm created openings.” (Travelers’ 56.1 Stmt. ¶ 15; DuPre Decl. ¶ 8).

Michael Tracey (“Tracey”), a civil and structural engineer, was retained as an expert witness by Travelers in September 2022 to inspect Amaar Holding's Premises and determine the cause of the water damage. (Travelers’ 56.1 Stmt. ¶ 24; Amaar Holding's 56.1 Stmt. ¶ 24; Tracey Decl. ¶ 1). On January 10, 2023, Tracey inspected the Premises. (Tracey Decl. ¶ 2). Tracey “saw no evidence that the roof had wind damage or that any seams of the roof membrane had lifted or torn off.” (Travelers’ 56.1 Stmt. ¶ 60; Tracey Decl. ¶ 4). Tracey observed that “the roof was well beyond its useful life,” that “[t]here was ․ evidence of deteriorated roof membranes and failure of applied sealants,” but there was “no evidence that [the roof membrane system] sustained impact damage or that the roof otherwise lifted off during the storm.” (Tracey Decl. ¶¶ 4, 6). Ultimately, based on his inspection and review of photographs, documents, and weather data, (Travelers’ Expert Witness Disclosure dated Feb. 22, 2023, attached as Ex. 15 to Travelers’ Mot. for Summ. J., Dkt. No. 26-21 at 48–49), Tracey concluded that:

The water infiltration was caused by an inability of the roof drainage system to convey the significant amount of rain water that accumulated on the roof during the event, thereby allowing water to penetrate the roofing system through the cracked deteriorated areas and the interface between the membrane and the metal panel walls on the roof's northern perimeter.

(Tracey Decl. ¶ 7).

Amaar Holding's rebuttal to Tracey's report is a conclusory, unsupported assertion. It contends the “report was completed months after the storm and cannot be deemed to be an accurate representation of the damage caused by the storm.” (Amaar Holding's 56.1 Stmt. ¶¶ 60–61). Amaar Holding cites—without specific pincites—to Tracey's deposition transcript. (Id.). During this deposition, Tracey was asked his opinion on how 15 months (between the date of loss and date of inspection) could affect: his ability to form an expert report, (Tr. of Dep. of Michael Tracey dated May 28, 2024, attached as Ex. 10 to Travelers’ Mot. for Summ. J., Dkt. No. 26-16 at 11:23–12:03); the deterioration of the roof, (id. at 15:17–16:23); and the presence of rust on the walls beneath the roof deck and support hangers, (id. at 18:04–24). Tracey responded, respectively: the 15 months had no effect on his ability to issue an expert report, (id. at 11:23–12:03); there would have been additional deterioration in the interim 15 months but nothing significant absent an extreme weather event like Hurricane Ida, (id. at 15:17–16:23); and that 15 months would have worsened the presence of rust, but that the rust he observed occurred over a period of approximately 5 to 15 years, (id. at 18:04–24). There is no portion of the deposition in which the Court can locate any admissions by Tracey that would support Amaar Holding's position that the passage of time undermined his conclusions or that they would not constitute an “accurate representation” of the damage. Amaar Holding offered no expert of its own to rebut Tracey's report or to support its theory of damage to the Premises.³

Travelers details the history of water leaks at the Premises prior to the storm—undisputed by Amaar Holding—in explaining why an expert witness like Tracey was required to examine the roof to determine causation. (Travelers’ Mem. of Law at 11–12; Travelers’ 56.1 Stmt. ¶¶ 44–46; Amaar Holding's 56.1 Stmt. ¶¶ 44–46). The roof of the building had been replaced at least once and repaired multiple times. (Travelers’ 56.1 Stmt. ¶ 44; Amaar Holding's 56.1 Stmt. ¶ 44). In 2016, Esposito added roof drains, patched the roof for leaks, and cleaned the inside walls’ “water and steel rust stains.” (Id. ¶ 46; Travelers’ 56.1 Stmt. ¶ 46; 2014 Roof Repair Bill dated Apr. 3, 2014, attached as Ex. 16 to Travelers’ Mot. for Summ. J., Dkt. No. 26-22). The most recent repair before the storm—to “clean the roof” and “patch all vent pipes and drains”—occurred only a few months prior to the storm in July 2021, Amaar Holding's principal testified, because “there might have been some leak.” (Tr. of Dep. of Afzal Amanat dated Sept. 7, 2023, attached as Ex. 2 to Travelers’ Mot. for Summ. J., Dkt. No. 26-8 at 105:25–107:18; 2021 Roof Repair Bill dated July 12, 2021, attached as Ex. 17 to Travelers’ Mot. for Summ. J., Dkt. No. 26-23). As noted by DuPre during his September 27, 2021 inspection, buckets had been hung to catch water dripping from the roof, and tarps were laid over tenants’ goods to protect from leaks. (Amaar Holding's 56.1 Stmt. ¶¶ 12, 16; Travelers’ 56.1 Stmt. ¶¶ 12, 16; DuPre Decl. ¶ 8). Indeed, one of Amaar Holding's tenants testified to “continuous water leaks” since they had started leasing the space in 2019. (Travelers’ 56.1 Stmt. ¶¶ 53–54; Amaar Holding's 56.1 Stmt. ¶¶ 53–54).

DISCUSSION

In its motion for summary judgment, Travelers seeks a declaration that (1) it has no obligation to Amaar Holding for any alleged damage resulting from the September 2, 2021, storm. (Travelers’ Mem. of Law at 10–12). In the alternative, if Travelers were found to have such obligation, Travelers seeks a declaration that (2) Amaar Holding has not and cannot show any business income loss, (id. at 13–16), and (3) Amaar Holding's maximum building damage recovery amount is limited to the sum determined by Travelers’ building expert, (id. at 16–18).

As an initial matter, Travelers is not entitled to any declaration. It did not file any counterclaims in the case. (Answer). And so it has no claims under the Declaratory Judgment Act, which is the traditional vehicle in an insurance dispute litigation to obtain a declaration of non-liability or interpretation of a contract. Without such claims, it cannot obtain any declaration. “Because an action for a declaratory judgment is an ordinary civil action, a party may not make a motion for declaratory relief, but rather, the party must bring an action for a declaratory judgment.” Int'l Bhd. of Teamsters v. E. Conf. of Teamsters, 160 F.R.D. 452, 456 (S.D.N.Y. 1995); e.g., Bisnews AFE (Thailand) Ltd. v. Aspen Rsch. Grp. Ltd., No. 11-CV-3108, 2012 WL 3283479, at *3 (S.D.N.Y. Aug. 13, 2012) (“The straightforward problem with the pending motion is that Aspen seeks partial summary judgment [seeking declaratory relief] on a claim that it failed to plead in its counterclaim. Because declaratory relief must be sought through an action, not a motion, for declaratory judgment, Aspen's failure to adequately raise its claim in an appropriate pleading procedurally forecloses its access to such relief under these circumstances.”); Onebeacon Am. Ins. Co. v. Fulton Boiler Works, Inc., No. 13-CV-01525, 2016 WL 1248892, at *6 (N.D.N.Y. Mar. 28, 2016) (“Where the parties are seeking declaratory relief but have not commenced an action for declaratory judgment, the Court is without jurisdiction to act under [the Declaratory Judgment Act].”). Because the only claims are those brought by Amaar Holding, at best, Travelers is entitled to summary judgment on the breach of contract claim. And the Court interprets Travelers’ motion as seeking dismissal of that claim.

Under New York Law, the elements of a breach of contract claim are “(1) the existence of a contract, (2) performance by the party seeking recovery, (3) breach by the other party, and (4) damages suffered as a result of the breach.” Zam & Zam Super Mkt., LLC v. Ignite Payments, LLC, 736 F. App'x 274, 276 (2d Cir. 2018). Here, where the breach of contract claim is based upon an insurance contract, and coverage depends upon the cause of the underlying injury falling within the policy coverage, the plaintiff bears the burden of proof. U.S. Dredging Corp. v. Lexington Ins. Co., 99 A.D.3d 695, 696, 952 N.Y.S.2d 60 (2d Dep't 2012) (“[A]n insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and also that the loss was a covered event within the terms of the policy[.]” (quotations and citations omitted)); Morgan Stanley Grp. Inc. v. New England Ins. Co., 225 F.3d 270, 276 (2d Cir. 2000) (“It is well established under New York law that a policyholder bears the burden of showing that the insurance contract covers the loss.”). When causation “is sufficiently beyond the knowledge of the lay juror[,] ․ expert testimony is required to establish causation.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004). Parties bearing the burden of proof on causation must offer expert testimony. If they fail to do so, and the opposing side offers an admissible expert opinion, they cannot defeat a summary judgment motion. See Thomas v. C.R. Bard, Inc., No. 20-CV-2738, 2022 WL 16748753, at *6 (S.D.N.Y. Nov. 7, 2022) (granting defendant summary judgment where plaintiff failed to provide required expert testimony on causation).

Causation is “sufficiently beyond the knowledge of the lay juror” when the issue is sufficiently complex and there are multiple potential causes that “circumstantial, lay evidence alone” cannot resolve. Wills, 379 F.3d at 46. But “ ‘[c]auses of action in which the law predicates recovery upon expert testimony’ are ‘rare.’ ” Ojeda v. Metro. Transp. Auth., 41 F.4th 56, 70 (2d Cir. 2022) (quoting Salem v. U.S. Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962)).

This complexity exists in certain types of cases, such as those requiring determinations of the cause of certain medical illnesses. Barnes v. Anderson, 202 F.3d 150, 159 (2d Cir. 1999) (“[E]xpert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.”) (quoting Shegog v. Zabrecky, 36 Conn.App. 737, 654 A.2d 771, 776 (1995)); see, e.g., Wills, 379 F.3d at 46 (concluding expert testimony was required to determine the causal nexus between exposure to toxins and squamous cell carcinoma); Burgess v. Costco Wholesale Corp., No. 21-CV-5178, 2024 WL 4333617, at *8 (S.D.N.Y. Sept. 27, 2024) (finding plaintiff failed to submit the expert testimony necessary to create a genuine dispute as to “complex causation issues” regarding plaintiff's injuries from a fall); Thomas, 2022 WL 16748753, at *4–*5 (requiring expert testimony in determining whether a medical filter device caused plaintiff to cough up blood).

On the other hand, “where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill,” a party's claim survives without expert testimony. Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367 (1941). “[E]xpert testimony is unnecessary in cases where jurors ‘are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training.’ ” Wills, 379 F.3d at 46 (quoting Salem, 370 U.S. at 35, 82 S.Ct. 1119).

At bottom, expert evidence is only required “when a necessary element of the claim ‘would not be obvious to the lay juror.’ ” Ojeda, 41 F.4th at 70 (quoting Wills, 379 F.3d at 46).

There is no per se rule that experts are necessary to establish causation in a property damage case. See Fabozzi v. Lexington Ins. Co., 23 F. Supp. 3d 120, 129 (E.D.N.Y. 2014) (“Although expert testimony may normally be preferred in cases involving the cause of property damage, absent any binding authority stating otherwise, the Court is unwilling to conclude that such testimony is required as a matter of law.”); e.g., Leeber Realty LLC v. Trustco Bank, 316 F. Supp. 3d 594, 612 n.6 (S.D.N.Y. 2018) (noting that “expert testimony as to the cause of the mold and sewage issues ․ would not be necessary if the issue of causation” were one jurors could determine on their own), aff'd, 798 F. App'x 682 (2d Cir. 2019); compare Bruno v. Toyotomi U.S.A., Inc., 203 F.R.D. 77, 78 (N.D.N.Y. 2001) (requiring expert testimony from plaintiffs to prove property damage was proximately caused by kerosene heater at issue in products liability action), with Lifchits v. Key 4U Transp. Corp. Bus, No. 20-CV-3749, 2024 WL 4252041, at *7 (E.D.N.Y. Sept. 20, 2024) (finding plaintiff's automobile property damage claim did not require expert opinion).

The Court need not conclude that an expert is always required to prove causation in property damage cases. But in this case, where the only theory on which Amaar Holding can prevail—that the damage to the Premises was storm-related—is based on a single employee's testimony, unsupported by any photographic or documentary evidence, and contradicted by the sole unrebutted expert, Travelers is entitled to summary judgment. Said differently, without favorable expert evidence, no reasonable jury could find for Amaar Holding.

As noted, Amaar Holding and Travelers have each set forth wholly different causes for the water damage that occurred at the Premises. Amaar Holding asserts that rain rushed in through a storm-created opening formed by a piece of metal, which struck the roof during the storm. (Amaar Holding's Mem. of Law at 3). No photographic or written documentation exists of the storm-created opening before its repair by Amaar Holding's neighbor, nor has Amaar Holding submitted expert evidence attributing the damage to the storm-created opening. Travelers asserts, with expert evidence, that improper maintenance and insufficient roof drains led to the overflow of water through existing openings. (Travelers’ Mem. of Law at 12; Tracey Decl. ¶ 7). Furthermore, it is undisputed that Amaar Holding's Premises suffered from roof damage and water leaks in the past. (Travelers’ 56.1 Stmt. ¶¶ 44–46; Amaar Holding's 56.1 Stmt. ¶¶ 44–46).

Travelers contends that “determining what caused ․ substantial water damage to the interior ․ of the Premises requires an expert such as an engineer to review in detail the roof, the drainage, the wind and the weather at the time of the Loss[.]” (Travelers’ Mem. of Law at 11–12). The Court agrees. The issue of whether the water flowed in through a storm-created opening or through existing openings to cause the water damage is beyond the ken of a layperson. Absent expert evidence, a reasonable conclusion on causation is not possible. Indeed, litigants in similar disputes have employed the use of expert witnesses. See, e.g., Iannucci v. Allstate Ins. Co., 354 F. Supp. 3d 125, 133–34, 138–39 (N.D.N.Y. 2018) (considering both parties’ experts in evaluating the cause of the collapse of plaintiff's roof in insurance coverage dispute); Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 78, 87, 8 N.Y.S.3d 143 (1st Dep't 2015) (concluding summary judgment was precluded because the opinions of plaintiff's expert and defendant's expert directly conflicted, with plaintiff's expert determining that the cause of flooding was improper plumbing installation, and defendant's expert determining that installation was proper).

Amaar Holding fails to address the issue of the necessity of expert testimony in its memorandum. Instead, it relies on three cases to argue that the loss is covered under the Policy. (Amaar Holding's Mem. of Law at 3–4). None are apposite. First, it contends that in 7001 E. 71st St. LLC v. Chubb Custom Ins. Co., 417 F. Supp. 3d 150 (E.D.N.Y. 2019), “the court found that roof damage caused by wind was covered by the policy and not subject to exclusions.” (Amaar Holding's Mem. of Law at 3). But that determination does not say anything about whether a coverage claim can survive summary judgment without expert testimony. Indeed, in that case both sides provided expert testimony. 7001 E. 71st St., 417 F. Supp. 3d at 152. Second, Fontanelli v. Hanover Ins. Co., 48 A.D.3d 413, 851 N.Y.S.2d 274 (2d Dep't 2008), similarly has no relevance. Fontanelli makes no mention of whether the parties provided expert witnesses. Id. And third, the same is true of Inter-Governmental Philatelic Corp. v. Aspen Am. Ins. Co., 73 Misc. 3d 265, 152 N.Y.S.3d 548 (Sup. Ct. 2021). It is axiomatic that summary judgment is precluded when material facts are at issue. But Amaar Holding fails to argue, or even acknowledge, what is at issue here: whether in the face of a genuine issue of causation, it needs expert testimony to have its claims survive.

“[S]ummary judgment is appropriate where required expert testimony is absent from the record.” Thomas, 2022 WL 16748753, at *5. Travelers has offered an expert report as to the ultimate cause of the water damage. Amaar Holding has not. They have offered no expert witness to either demonstrate that a storm-created opening caused the water damage, or to rebut the opinion attributing the damage to an insufficient drainage system and improper roof maintenance. And without that testimony, Amaar Holding cannot show causation and survive summary judgment. See Adorno v. Corr. Servs. Corp., 312 F. Supp. 2d 505, 514 (S.D.N.Y. 2004) (“If a plaintiff cannot establish a prima facie case without the benefit of expert testimony, and the plaintiff is unable to procure such testimony, then summary judgment is appropriate.”).

CONCLUSION

For the reasons explained above, Travelers’ motion for summary judgment is granted. Accordingly, Amaar Holding's claims are dismissed with prejudice.

FOOTNOTES

1.   Esposito's full testimony regarding his initial inspection: “I met one of [Amaar Holding's] workers out there. They showed me the place was destroyed. I went up on the roof. There was some metal sticking in the roof. There was—I guess from the wind must have ripped somebody's metal off and got stuck in the roof there. And then there was—it looked like the roof kind of like lifted, like it was going to rip up, but—and then it was settled back down. I guess it settled down, so everything got disconnected and that's why it got a lot of water inside there.” (Esposito Dep. Tr. at 39:19–40:04).

2.   Amaar Holding also says “Esposito clearly saw the metal sticking out of the roof[.]” (Amaar Holding's 56.1 Stmt. ¶ 19). But that does not demonstrate that Esposito showed Travelers or Travelers saw places where metal existed or metal damaged the roof.

3.   The Court set an initial discovery schedule with expert discovery to be completed by February 28, 2023. (Min. Entry dated Nov. 15, 2022). After a status conference on June 15, 2023, the parties were directed to “continue to exchange expert and other relevant information[.]” (Min. Entry and Order dated June 15, 2023). On July 6, 2023, the parties jointly proposed a revised discovery schedule, which included a deadline of September 9, 2023 for Amaar Holding to serve its expert reports on Travelers. (Status Report dated July 6, 2023, Dkt. No. 17). The Court ordered: “Plaintiff shall serve its expert reports by 9/9/2023[.]” (Order dated July 7, 2023). After a request from Amaar Holding to extend discovery, the Court extended discovery deadlines a second time, allowing Plaintiff to serve its expert reports by October 9, 2023. (Order dated Aug. 22, 2023).Amaar Holding filed a letter on October 17, 2023, stating that delays from a change in counsel had continued to prevent it from serving its expert reports. (Letter Requesting Status Conference dated Oct. 17, 2023, Dkt. No. 19). After a status conference on November 14, 2023, the Court extended the deadline—for the third time—for Amaar Holding to serve expert reports to February 12, 2024. (Min. Entry dated Nov. 14, 2023). Finally, at a status conference on March 28, 2024, in light of the multiple missed expert report deadlines, Amaar Holding was precluded from submitting any expert testimony or reports. (Min. Entry and Order dated Mar. 29, 2024). Discovery closed on June 11, 2024. (Id.).

BULSARA, United States District Judge: