A tenant-driven class action lawsuit brought against two Lower Manhattan buildings ravaged by Hurricane Sandy must be dismissed because expert opinions meant to support negligence theories were conclusory and unsupported by data and industry standards, a state appeals court has ruled.
An Appellate Division, First Department panel wrote that ownership and management company defendants in the lawsuit had established entitlement to judgment as a matter of law by, among other things, showing that any property-related damages suffered by the tenants were “caused by an act of God” and that, in opposition, the tenants failed to raise a triable issue of fact.
“Plaintiffs … failed to provide evidence sufficient to support these [negligence] theories since their experts’ opinions were conclusory and unsupported by objective data or citations to the Building Code or industry standards,” the panel wrote in its decision, citing in part Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1.
“Moreover,” the panel wrote, “the opinion of one of plaintiffs’ experts was based on observations long after the storm and subsequent to the installation of new floodgates” at the buildings.
The lawsuit was lodged in November 2012, just weeks after Superstorm Sandy devastated the New York area, and it was brought on behalf of tenants at the adjacent 2 Gold Street and 201 Pearl Street buildings, both of which were evacuated and sustained major storm damage, court records say.
Among the causes of action against the defendants, which included ownership companies 2 Gold LLC and 201 Pearl LLC and management company TF Cornerstone Inc., were multiple negligence claims.
According to the complaint, tenants lost personal property and suffered property diminution of value, among other damages, and they were exposed to safety and health dangers from toxic fumes that emanated from a gasoline spill into the floodwaters.
Manhattan Supreme Court Justice Ellen Coin, in her 2017 summary judgment dismissal decision, which the First Department affirmed, wrote that the tenant-plaintiffs sought damages for loss and/or diminution of personal property value. She also noted that Sandy, said to be the largest hurricane ever recorded in the Atlantic Ocean, sent surging waters that “overtopped the Buildings’ flood protections … depositing hundreds of thousands of gallons of water” into a flooded common basement, which in turn “caused the Buildings’ 20,000 gallon oil tank to detach form the floor and release approximately 10,000 gallons of fuel oil into the floodwaters.”
The First Department panel of Justices David Friedman, John Sweeny, Rosalyn Richter, Jeffrey Oing and Peter Moulton wrote in their March 7 opinion that defendants 2 Gold, 201 Pearl and TF Cornerstone had established entitlement to judgment as a matter of law.
“They submitted evidence showing that plaintiffs’ damages, if any, were caused by an act of God,” the justices wrote, and they showed that it was “not foreseeable” that “a storm of the magnitude of Superstorm Sandy would strike lower Manhattan, and that compliance with the Department of Buildings’ mandated provisions for flood protection would be inadequate.”
Then the justices pointed out that the class plaintiffs had “assert[ed] that they presented sufficient evidence to raise triable issues[,] including whether the buildings were adequately flood proofed and prepared for the storm; whether there was a deviation from the design drawings during construction that caused water to accumulate against the floodgate; whether it was unreasonable for defendants not to have an emergency plan; whether defendants should have trained their superintendent in flood preparation and not have permitted him to leave the buildings the weekend before the storm; and whether it was unreasonable for defendants not to call the emergency services offered by their insurer.”
But the justices found that the tenant class “failed to provide evidence sufficient to support these theories since their experts’ opinions were conclusory and unsupported by objective data or citations to the Building Code or industry standards,” while noting that “the opinion of one of plaintiffs’ experts was based on observations long after the storm and subsequent to the installation of new floodgates.”
Brittany Weiner, a partner at Imbesi Law in New York, said in an email on Monday that “plaintiffs are evaluating all available options after reviewing the First Department’s decision.” She did not say more about whether or not plaintiffs may seek leave to appeal the First Department decision to the Court of Appeals.
Barbara Goldberg, a Martin Clearwater & Bell partner in New York and head of the firm’s Appellate Department, represented the company defendants in the appeal. She also could not reached.