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An appellate court in New Jersey has affirmed a decision denying a homeowner’s request for a grant to repair his home after Superstorm Sandy on the ground that the repair estimates he submitted were inadequate.

The Case

In 2011, Hurricane Irene damaged the back wall of David Kopecky’s home in New Brunswick, New Jersey, causing it to rot and eventually develop a hole. Mr. Kopecky received $10,832.46 in Federal Emergency Management Agency (“FEMA”) assistance to repair the damage caused by Irene.

Mr. Kopecky, however, did not remediate the damage and it existed in October 2012, when Superstorm Sandy struck New Jersey.

Mr. Kopecky did not receive FEMA assistance following Sandy. He applied for a grant to repair his home from the Low-to-Moderate Income Program (“LMIP”), administered by the New Jersey Department of Community Affairs (“DCA”).

The DCA, however, denied Mr. Kopecky’s application because he did not have a verified loss of $8,000 or flooding greater than one foot on the first floor of his home caused by Sandy.

As a part of his LMIP application, Mr. Kopecky presented an estimate dated more than one year before Superstorm Sandy. He presented a second estimate for repair dated after the storm indicating the damage was “due to storm,” but not indicating which storm. A third estimate provided by Mr. Kopecky was for “repair [of the] rear exterior wall” – the same damage caused by Hurricane Irene. All estimates provided by Mr. Kopecky were from private contractors.

An administrative law judge issued a written decision, adopted by the DCA, finding that the contractor estimates failed to link the damage to Superstorm Sandy. The ALJ also found the contractor estimates were not “[t]he accepted and adequate examples of third-party verifications” under the LMIP.

Mr. Kopecky appealed, arguing that he had provided adequate proof the damage had resulted from Superstorm Sandy. He argued that even if his estimates were inadequate, the subsequent condemnation of his home was proof of damage totaling at least $8,000.

The LMIP

The LMIP provides:

Level of Damage

The residence must have sustained damage as a result of Superstorm Sandy with a Full Verified Loss (FVL) of at least $8,000 or at least one (1) foot of water on the first floor, as determined by FEMA, its sub-agencies, or affiliates. If FEMA records do not confirm the minimum level of damage, inspection data from the Small Business Administration (SBA) will be reviewed to determine if those records indicate an eligible level of damage. If data from these sources do not confirm the minimum level of damage, the applicant will be determined ineligible. The applicant will be notified in writing and offered an opportunity to submit acceptable third party documentation as noted below to verify the damage level. This review will follow the process in accordance with the appeals policy. The third party information that may be submitted as acceptable damage eligibility documentation include[s] the following:

• National Flood Insurance Program (NFIP);

• Insurance Adjuster Estimate (IAE);

• Insurance documents demonstrating $8,000 or greater in damage to the dwelling; and

• Damage Letter from local township demonstrating $8,000 or greater in damage or excess of one (1) foot of flooding to the dwelling.

N.J. Dep’t of Cmty. Affairs, Low-to-Moderate (LMI) Program Policies and Procedures 1.3 (2017), available at http://www.renewjerseystronger.org/wp-content/uploads/2017/04/2.10.79-LMI-Program-Policies-and-Procedures-Final-Signed.pdf.

The Appellate Court’s Decision

The appellate court affirmed.

In its decision, the appellate court explained that Mr. Kopecky had not asserted that he had a foot of water on the first floor of his home and that he had not challenged the LMIP’s mandatory categories of third-party verification but, instead, had asserted that the contractor estimates he provided were adequate.

The appellate court ruled, however, that “none of the three estimates he obtained quantified damages by documentation from the sources required by the LMIP.” Moreover, it added, none of the estimates tied the damage to Mr. Kopecky’s home to Superstorm Sandy. It also found that no such tie was established between the subsequent condemnation of Mr. Kopecky’s home and Sandy. This was necessary, the appellate court said, considering that he had not made the repairs resulting from the damage caused by Hurricane Irene.

The appellate court concluded that the ALJ’s determination, adopted by the DCA, was based on substantial and credible evidence in the record. “It neither violated any constitutional or legislative policies nor was it arbitrary, capricious or unreasonable.”

The case is Kopecky v. Dep’t of Community Affairs, Sandy Recovery Div., No. A-3459-15T3 (N.J. App.Div. Sep. 21, 2017).

About The Author

Steven A. Meyerowitz, Esq., Director, FC&S Legal

Steven A. Meyerowitz, Esq., Director, FC&S Legal

Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.

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