Winget, Spadafora & Schwartzberg, LLP, attorneys recently won a motion for summary judgment dismissing a $19.3MM construction claim in the Supreme Court of the State of New York, County of Nassau. Partners Ken McLellan and Garry Stevens and Associates Gina Kim and Keith Roussel worked on the case.
We represented a mid-sized regional construction subcontractor who installed insulation at a hedge fund owner’s home in Mill Neck, New York. The homeowner was not living in the home due to an ongoing major renovation. The home is better described as a mansion, and was outfitted with custom carpentry and automated custom lighting and audio visual equipment. The home featured an art gallery where the owner was installing rotating motorized panels and lighting to display artwork.
Electrical subcontractors had been working in and around the art gallery installing wiring. A major fire broke out, and the local fire department responded. There was extensive fire, water and smoke damage inside the home.
Our involvement in the case began shortly after the fire about five years ago. We participated in a forensic examination of the site along with a fire investigator and a professional engineer. The investigation revealed evidence that our client had not installed any insulation in the area of origin, but further, provided support for an argument that even if it had, any spray foam insulation had been installed prior to the electrical work in the area of origin.
The homeowner’s insurer paid out over $19.3MM to the homeowner, and brought a subrogation action against the electrical contractors, who, in turn, named our client as a third-party defendant.
Thousands of pages of discovery were exchanged, and the depositions of the Plaintiff insurer and the homeowner commenced. Simultaneously with depositions, a lab examination and destructive testing were undertaken by expert engineers.
Rather than proceed through months of costly depositions, we filed a motion for summary judgment supported by affidavits from our client, photographs, engineering diagrams and expert affidavits from two professional engineers, one of whom was an electrical engineer. The electrical contractor submitted an affidavit from an expert who vaguely argued that the spray foam surrounding the wiring somehow exacerbated the spread of the fire. We argued that the physical evidence in question showed the wiring was installed after the spray foam, and that there was nothing at all improper or violative of any codes or standards for spray foam to be surrounding wiring. We further argued that the electrical contractor had submitted an affidavit that was a net opinion. The Court agreed with our argument citing Delehanty v. KLI, Inc., 663 F.Supp.2d 127 (EDNY 2009).
The Court granted our client’s motion for summary judgment, and, in doing so our client — which was emerging from the stresses of the Covid-19 Pandemic — was able to avoid months if not years more of costly, time-consuming discovery and a trial, and focus on its business. An early and thorough pre-suit multi-day site inspection with our engineer and investigator helped to preserve evidence and provided the building blocks for our successful motion.
