Aboulafia Law Firm defeated an insurer’s motion for summary judgment in the U.S. District Court for the Eastern District of New York on behalf of a client that operates a nursing home and assisted living facility in New York. In June 2021, while a contractor was replacing the facility’s roof, the contractor removed the roof’s gravel ballast, one of the roof’s four layers, which holds the roof membrane in place. During a storm, the wind lifted the membrane, and rain entered the building, damaging thirteen patient rooms, a lounge, and a hallway. The insurer limited its payment to $10,000 under the policy’s rain limitation, which capped coverage for interior rain damage unless the building first sustained damage to its “roof” by a covered cause of loss. The insurer argued that, with the ballast removed, there was no “roof” at all.
The Court rejected that argument. Because the policy did not define “roof,” the Court applied its ordinary dictionary meaning (“the cover of a building” or “the covering that forms the top of a building”) and held that the three remaining layers of the roof, including the membrane, were sufficient to constitute a “roof” on the day of the loss. The Court distinguished cases in which an insured had removed the roof entirely and covered the opening with only a tarp, and held that, even if the term “roof” were ambiguous, it must be construed in favor of the insured. The Court also held that questions of fact existed as to whether the windstorm or the contractor’s workmanship was the cause of the loss, and as to whether it was feasible to preserve the damaged property for the insurer’s inspection, and it therefore denied the insurer’s motion.
The decision has since been cited and followed outside of New York. In 11640 Woodbridge Condominium Homeowners’ Association v. Farmers Insurance Exchange, the California Court of Appeal relied on this decision in reversing a summary judgment for an insurer that had denied a rain damage claim during a roof replacement. Like the court here, the California court concluded that the remaining layers of a roof under repair were sufficient to constitute a “roof,” and held that “a roof under repair remains a ‘roof’ within the meaning of the policy.” 110 Cal. App. 5th 211, 331 Cal. Rptr. 3d 319 (Cal. Ct. App. 2025).
Read the Decision below: