Appellate Alert: Hernandez-Ortiz v. 2 Gold LLC

Appellate Alert: Hernandez-Ortiz v. 2 Gold LLC

Appellate Division Upholds Order Granting Summary Judgment to Defendants

In Hernandez-Ortiz v. 2 Gold, LLC, one of several class action lawsuits seeking damages for property damage and related expenses caused by Hurricane Sandy, Hon. Ellen Coin of the New York County Supreme Court granted summary judgment in favor of defendants who owned and managed two high rise residential buildings in lower Manhattan that were partially located in Flood Zone A. The buildings had flood attenuation features that protected them to the level of a 100 year storm as specified by the Building Department, but sustained significant damage from Sandy’s flooding, which exceeded that level. Based on detailed expert affidavits submitted on behalf of the defendants, which analyzed historical storm surges dating back to 1821, as well as weather advisories in the days preceding Sandy’s landfall on October 29, 2012, Justice Coin found as a matter of law that the magnitude of the storm surge from Hurricane Sandy, which surpassed all previously recorded levels, was not reasonably foreseeable.

That determination has now been affirmed by the Appellate Division, First Department. In a Decision and Order issued on March 7, 2019, the Appellate Division noted in pertinent part that defendants had submitted evidence showing that “plaintiffs’ damages, if any, were caused by an act of God,” and that it was not reasonably foreseeable that a storm of the magnitude of Sandy would strike lower Manhattan, or that “compliance with the Department of Buildings’ mandated provisions for flood protection would be inadequate.”

The Appellate Division further held that plaintiffs had failed to raise a triable issue of fact, finding that the opinions of the plaintiffs’ experts were “conclusory and unsupported by objective data or citations to the Building Code or industry standards.” Responding to plaintiffs’ arguments that the Supreme Court had improperly determined the credibility of the parties’ experts and relied too heavily on the defendants’ expert, the Appellate Division found that instead, “the court evaluated whether plaintiffs’ experts’ affidavits were sufficient to raise a triable issue of fact, and found them wanting.”

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