Atlantic Specialty Insurance v. AE Outfitters Retail Co.

970 F. Supp. 2d 278, 2013 WL 5289013, 2013 U.S. Dist. LEXIS 134963
CourtDistrict Court, S.D. New York
DecidedSeptember 20, 2013
DocketNo. 07 Civ. 8508(LAP)(GWG)
StatusPublished
Cited by12 cases

This text of 970 F. Supp. 2d 278 (Atlantic Specialty Insurance v. AE Outfitters Retail Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Specialty Insurance v. AE Outfitters Retail Co., 970 F. Supp. 2d 278, 2013 WL 5289013, 2013 U.S. Dist. LEXIS 134963 (S.D.N.Y. 2013).

Opinion

[280]*280 OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiffs in this action, subrogees of tenants and occupants of a six-story building at 575 Broadway (“the building”), have brought claims for property damage sustained as a result of a fire in the building in January 2006 against the tenant of the building, American Eagle Outfitters, Inc. (“AE”). AE has brought third-party actions based on negligence and breach of contract against the building’s owners, 575 Broadway, LLC, 575 Broadway Associates L.P., and 575 Broadway Corporation (collectively, “575 Broadway”), and against the company that maintained the fire alarm system, Integrated Systems and Power Inc. (“ISPI”). We will refer to ISPI and 575 Broadway collectively as the “defendants.” The defendants have joined together to bring the instant motion pursuant to Federal Rules of Civil Procedure 702, 402, and 403 to preclude an inspection and testing of the building’s fire alarm system that was conducted by AE’s proposed expert witness, Jeffrey Zwirn, in September 2011. They also seek to preclude Zwirn’s testimony and expert report. For the following reasons, defendants’ motion to preclude Zwirn’s testimony and expert report is granted.

I. BACKGROUND

On January 21, 2006, a fire occurred in a six-story building located at 575 Broadway. See Complaint, filed Oct. 2, 2007 (Docket # 1) (“First Compl.”), ¶¶ 18, 24-26; Affidavit in Support, filed Nov. 15, 2012 (Docket # 254) (“Mezzacappa Aff.”), ¶ 3. The parties dispute the cause of the fire and the course of events that took place before, during, and after the fire. We discuss the disputed facts solely to give some context to the issue of the admissibility of the opinions being offered by Zwirn.

A. AE’s Version of Events and Zwim’s Proposed Testimony

Replying on deposition testimony in the case and other record evidence, Zwirn’s expert report asserts that the fire originated in “[wjood joists above solid sheet rock ceiling above the southwest corner of the 1st floor duct room” of the building. See Letter from Jeffrey D. Zwirn to Steven D. Phillips, Esquire, dated Jan. 31, 2012 (annexed as Ex. U to Mezzacappa Aff.) (“Zwirn Report” or “Report”), at 5. The Report cites the testimony of Fire Marshal Ott that the cause of the fire was of “ ‘unknown origin’ ... most likely caused by electrical faults in the cables.” Id. While combustible materials stored in the duct room (also referred to as the “marketing room”) by American Eagle “contributed to the flame and smoke found in and emitting from the first floor duct room,” that part of the fire was “extinguished as early as five minutes after FDNY arrived at the scene at 10:07 p.m.” Id. The Fire Marshal concluded “that the fire discovered by American Eagle employees in the [duct room] was a ‘drop down fire’ resulting from the ceiling joists burning down through the sheet rock ceiling and dropping embers to the floor below.” Id.

Zwirn asserts that the “initial alarm of fire was generated by the triggering of a smoke detector in the second floor ... space,” meaning that “the fire was already well up into the building when AE employees first noticed the drop down fire.” Id. at 6. The Report states that the building’s Fire Safety Director, Gani Haxhaj, was not properly certified and, as described further below, opines that he used a “central station activation switch” to stop the alarm system’s signal from being transmitted to the fire department. Id. at 7; id. at 10, 13, 15, 26-27; Affirmation in Opposition Motions [sic] of ISPI and 575 Broadway to [281]*281Preclude/Exclude Alarm Expert Jeffrey Zwirn, filed Feb. 4, 2013 (Docket ## 277-280) (“Phillips Aff.”), ¶¶ 11,17.

Zwirn’s report describes deposition testimony from AE employees about the events on the night of the fire. Zwirn states that the employees heard a fire alarm go off in the store 10 to 15 minutes before employees discovered the fire. Zwirn Report at 8. Because the alarm stopped and no other announcement was made, the employees continued to work. Id. Brandon DeMoranville, an AE employee, noticed the fire in the duct/marketing room and alerted other employees. Id. at 9. He testified that he left the first floor retail space to warn stock room employees in the basement of the fire and then entered the building’s lobby. Id. He approached the security desk there and heard Haxhaj saying into the telephone, “It was a false alarm, I shut off the fire alarm.” Id. DeMoranville testified that he stopped at the desk for several seconds and informed Haxhaj that it was a real fire and that Haxhaj needed to call the police. Id. Haxhaj testified that he heard no fire alarm that night until AE personnel informed him, and that he did not touch the master fire alarm panel that night. Id. at 8, 13.

According to Zwirn’s report, before the fire, leaks and electrical shorts had occurred throughout the building in various tenant spaces. Id. at 9; Phillips Aff. ¶ 9. During one of these leaks six days before the fire, fire sensors had been triggered, causing the New York City Fire Department (“FDNY”) to respond. Zwirn Report at 9; Phillips Aff. ¶ 9. As a result, the building manager, Peter Zanelli, and the building supervisor, Haim Quereti, repaired five sensors in the same general location of the fire sensor on the second floor. Phillips Aff. ¶ 9. On the day of the fire, an hour before it was discovered, Haxhaj was investigating a leak in the building. Id. ¶ 10; Zwirn Report at 10.

AE argues that Haxhaj turned off the fire alarm “with the obvious motive to prevent the situation of six days previously when water leaks shorted out fire alarm wiring automatically summoning FDNY to the building (with the clear potential for FDNY issuance of a fine to the building as a result of a repeat false alarm under the circumstances[.) ].” Phillips Aff. ¶ 11.

AE asserts that the fire alarm system was programmed such that, in accordance with code requirements, the system would emit a “loud whooping sound” when smoke was detected. Id. ¶ 14. Strobe lights on the first and second floors would then activate for 30 seconds, halt for ten seconds, and then repeat. Id. The sequence would not stop until an “acknowledgment button” on the control panel was pressed. Id. Similar sequences of strobe light activation and loud tones would occur on other floors. Id. On the night of the fire, the first alarm that was actually transmitted from the building to AFA1 and the FDNY was at 10:03 p.m. and occurred right after DeMoranville informed Haxhaj of the fire. Id. ¶ 15. AE asserts that for Haxhaj to have shut off the alarm, as DeMoranville overheard him say he did, not only would he have had to silence the alarm system, he also would have had to employ devices or methods at the fire command center panel “which effectively prevented the reporting of any alarm activations or trouble signals from being transmitted to the AFA Central Station while he was investigating the leaks in the building prior to the fire.” Id.

[282]

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970 F. Supp. 2d 278, 2013 WL 5289013, 2013 U.S. Dist. LEXIS 134963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-specialty-insurance-v-ae-outfitters-retail-co-nysd-2013.