Law Offices of Curtis, Vasile, Mehary & Dorry P.C.

HURRICANE LAW

DISASTER RELIEF ASSISTANCE

            The following are some notes taken from a New York State Bar Association Seminar to assist lawyers in advising others following natural disasters such as SuperStorm Sandy.

            This information is supplied merely to assist you in having a general understanding of how the claims process works under these scenarios and what options may be available to you – it is not meant as specific legal advice. You should rely on your own insurance broker and legal advisers.

            The websites listed below offer a wealth of information for victims of Sandy and, in general.

            You are welcome to contact the firm for a free consultation or to see if we can otherwise be of assistance. Please note – it is essential that you do, or be ready to do, your own legwork in order to expedite and maximize assistance – you can’t expect others to do it for you. The best course would be to email your question(s) with a brief summary of the facts, as warranted, to: mmehary@cvdm.com

IMMEDIATELY AFTER THE OCCURRNCE

            Before resorting to “self-help,” you should report your claim to all of your available insurance brokers and companies. Get the names and claim numbers or everyone you speak to. Take notes and follow their instructions.

            Time is of the essence – you have a duty to report as soon as possible, which can be strictly construed against  you. While there is a one-year waiver for Sandy, in all other instances proof of loss for all flood claims must be filed within 60 days.  Merely notifying the broker or waiting for the insurance adjuster to show up is insufficient and will not excuse the failure to file a proof of loss. For step-by-step details on what to do, go to:   http://www.floodsmart.gov/floodsmart/pages/preparation_recovery/file_your_claim.jsp

            You may think you have Flood Insurance from a national insurance company, such as Travelers or Allstate, but chances are they merely administer the program and your policy is with the National Flood Insurance Program (NFIP). For more information on filing your claim, see:

      http://www.floodsmart.gov/floodsmart/pages/preparation_recovery/file_your_claim.jsp

            Most policies require that you preserve the damaged items for an on-site inspection before a claim will be processed. Following Sandy, our governor issued order allowing you to dispose of property, as long as you kept proof, such as inventories, photos and samples (see link below). However, NOTE, Federal agencies, such as NFIP or FEMA may not be subject to Governor’s order.

            http://www.governor.ny.gov/press/11052012Insurance-Rules

            Even without the any executive order, you should be able to take steps to mitigate damages and prevent further damage, such as cleaning or removing debris that may create mold or further health issues, or removing a tree that could fall on your property.

            When in doubt: document, document, document. Keep all receipts.

            Lastly, and unfortunately, prepare for the long haul. Things will usually take longer than you reasonably expect. There are shortages of workers, supplies, and replacement items. If you have been displaced, consider leasing an apartment short term. Much of this is meant for the “next-time”; hopefully, you will never have to read this again.

            FLOOD AND HOMEOWNERS INSURANCE: THE DIFFERENCE?

            Most homeowners (HO) and business casualty insurance DOES NOT provide flood insurance. Flood insurance covers rising waters and storm surges. However. HO may still cover water damage, for example, if a frozen pipe burst and caused a flood, or if wind blew part of your roof off and the rain flooded your house, HO may cover. It depends on what your policy says, including any exclusions.

            When wind creates an opening and water comes in, the HO may cover, but rising water or storm surges are floods. What if a flood caused water to rise 4 feet, but wind pushed the water higher, say 6 feet, and this caused the damage? There has been some post-Katrina insurance litigation which supported the interpretation that this damage was caused by wind, requiring coverage.

            If you have both types coverage, you are probably going to be subject to two different deductibles. Also, any and all available insurance coverage must be exhausted before FEMA kicks in. FEMA does not provide replacement costs, only a “safe, sanitary and habitable space.”

            Notice how Sandy is usually referred to as “Super Storm” as opposed to “Hurricane.” Be thankful because most policies have a HIGHER deductible for hurricanes versus other storms. Sandy did not have hurricane force winds when it struck, per governors’ executive order, see:

http://www.nytimes.com/2012/11/01/business/governors-rulings-mean-lower-deductibles-for-storm-tossed-homeowners.html

            Flood insurance seems to limit coverage for below grade areas. There have been different results with different companies, even though the standard policy is a FEMA form. The following is a general idea of what should be covered by flood insurance:

            Building items covered below grade are specifically identified as (1) Central air conditioners; (2) Cisterns and the water in them; (3) Drywall for walls and ceilings in a basement and the cost of labor to nail it, unfinished and unfloated and not taped, to the framing; (4) Electrical junction and circuit breaker boxes; (5) Electrical outlets and switches; (6) Elevators, dumbwaiters, and related equipment, except for related equipment installed below the base flood elevation after September 30, 1987; (7) Fuel tanks and the fuel in them; (8) Furnaces and hot water heaters; (9) Heat pumps; (10) Nonflammable insulation in a basement; (11) Pumps and tanks used in solar energy systems; (12) Stairways and staircases attached to the building, not separated from it by elevated walkways; (13) Sump pumps; (14) Water softeners and the chemicals in them, water filters, and faucets installed as an integral part of the plumbing system; (15) Well water tanks and pumps; (16) Required utility connections for any item in this list; and (17) Footings, foundations, posts, pilings, piers, or other foundation walls and anchorage systems required to support a building. Clean-up. Personal property below grade is specifically limited by the policy to the following items: a. Air conditioning units, portable or window type; b. Clothes washers and dryers; and c. Food freezers, other than walk-in, and food in any freezer.

            Unless you paid extra for “contents coverage,” you will not be able to recover for the other personal property items lost in the flood

            NOTE – most Flood policies are only “actual cash value,” you will NOT get replacement costs. With HO policies – most have “replacement costs” or “actual cash value,” which takes into account depreciation or value. So if you had an excellent portable A/C unit in your basement window destroyed in the flood that cost $500 five years ago, you may only get $50 actual cash value, whereas, if you also had one in upstairs bedroom window destroyed by a tree, if covered, and now it costs $650 to replace, that’s what HO may pay.

            Remember insurance company or “independent” adjusters work for insurance companies, NOT you. An “independent” adjusters is when the insurance company hires an outside firm to conduct their inspections and recommend adjustments. This does not mean they will not strive to be fair as they have jobs and licenses to protect, but you should be aware of by whom they are employed.

            You have the right to hire a Public Adjuster, who work for you (the insured), but you pay them a % out of recovery, or hourly. This should be considered for complicated claims. The more you lost, the more likely you should hire one. See: http://www.napia.com/     

Also: http://newyork.bbb.org/

            If you have a complaint about your insurer, or you just have questions,  a great resource is the NYS Dept of Financial Services (f/k/a the Insurance and Banking Departments). They can answer generic insurance questions and they handle any type of insurance complaints, such as, a failure to come to inspect within a reasonable time and they include flood and auto insurers. They have a disaster hotline available 24/7: 800 339 1759, or see: www.dfs.ny.gov

            Cars – may be covered if you have “Comprehensive,” but you must see if policy has flood or nature exclusions.

CONTRACTORS

            Always insist on seeing any proposed contractors proof of current Liability and Workers Compensation Insurance. If they won’t show you, or hesitate, go elsewhere.

OTHER RESOURCES

            The Small Business Authority (SBA) is a primary source of Federal Funds for repair and replacement of private property, NOT just businesses – it covers all private property impacted by the disaster.

            First register with FEMA, then complete application for a SBA loan – there are no costs, fees or points – JUST APPLY – do not have to take the loan. NOTE: – even if you do not get this loan – it can help open the door for other benefits!

            Available for businesses are up to $2 million to replace assets, and you can apply for working capital. For homeowners there is up to $200k and $40k for property renters and this includes vehicles. You need to do first before applying for grants from FEMA, see:

                  http://www.sba.gov/content/home-and-personal-property-loans

See also: http://www.nyc.gov/html/sbs/nycbiz/html/home/home.shtml

  • ADDITIONAL 10,000 GRANT Homeowners who have already qualified for FEMA housing assistance grants can now also obtain up to an additional $10,000 grant through the Governor's Disaster HomeownershipRepair and Rebuilding Fund

http://scoem.suffolkcountyny.gov/OEM/DisasterHomeownershipRepairandRebuildingFund.aspx#.UMJ7_OTBGSo
INCREASED COST OF COMPLIANCE (ICC) GRANTS: http://www.fema.gov/national-flood-insurance-program-2/increased-cost-compliance-coverage
  • Rental Assistance: Section 8 Voucher assistance is available to low income Sandy victims who were permanently or 
  • indefinitely displaced. For more information on Disaster Vouchers in Nassau call 516 572-2782 or 0815. In Suffolk call 631 471-1215

  • Touro Law Center - Hurricane Emergency Assistance and Referral Team (TLC HEART) is providing 
  • referrals, assistance and legal advice for local residents and small businesses affected by the storm. The 
  • Center will provide help in assessing eligibility and completing application forms for the wide range of 
  • emergency assistance available to storm victims, both individuals and small businesses (e.g., food stamps, 
    government loans and grants); free legal consultation and advice on storm-related legal issues (e.g., insurance, landlord-tenant, consumer complaints, unemployment) to members of the community who are in need. Call (631) 761-7198 and email tlcheart@tourolaw.edu 
  • United Way of L.I.'s 2-1-1 Long Island Disaster Information and Referral Call Center open from 8-8, seven days a week. Dial 2-1-1 or 1 888 774-7633. In Suffolk County, the Call Center is scheduling damage 
  • assessments for the FEMA STEP (Sheltering Temporary Essential Power) Program to help people
  • get back into their homes quickly and safely. Under the program, residents of the designated disaster areas that participate will be able to have the damage to their residence assessed and, where safe and practicable have electricity restored and other basic repairs made so they can move back into their homes. Residents can call 2-1-1 or 1-888-774-7633, between 8 a.m. - 8 p.m., 7 Days a Week or go to: http://scoem.suffolkcountyny.gov/OEM/ShelteringandTemporaryEssentialPower.aspx#.UMKHLuTBGSo

            Housing, see: http://www.hud.gov/info/disasterresources_dev.cfm

            http://money.cnn.com/2012/11/02/real_estate/sandy-mortgage-relief/

            Disaster Legal Services – income eligibility = low income at the time of disaster for assistance: http://www.disasterlegalaid.org/

    Disaster Relief Legal Manual:

            http://www.lawhelp.org/documents/519321LSNYC%20Disaster%20Relief%20Legal%20Assistance%20Manual.pdf?stateabbrev=/NY/

            United Way's L. I. Disaster assistance Guide:

 http://www.211longisland.org/pdf/Disaster%20Guide%20-%20%20211%20Long%20Island.pdf

            Disaster Unemployment Assistance (DUA) – Federal program for those in Federally declared disaster areas who lost employment or income as a direct result of the disaster. Key = loss must be directly related to the storm – live or work in counties in the Metropolitan area – Call 1 888 209 8124 – need ss #, driver’s license, employers in last 18 months. 

            Military: the Coast Guard has lawyers who will help all members of the military with disaster related legal needs:

                            http://www.uscg.mil/legal/la/legal_assistance_home.asp

            Red Cross is based on need, not income or anything else, it’s open to all:   http://www.redcross.org/hurricane-sandy

            Here’s a handy reference cite:   http://www.dhses.ny.gov/oem/event/sandy/contact.cfm

            NYS Emergency assistance thru up to 200% of poverty with kids, or adults with SSI recipient and “emergency safety net” even if otherwise ineligible. Also, one-time assistance grants for furniture, security deposits, repairs:   http://otda.ny.gov/programs/temporary-assistance/

            Your Health: there is a recognized post-disaster stress syndrome – it may well happen to you. Be on the look-out for signs and symptoms among you and your loved-ones. It is important to eat, live, exercise, and rest, as normally as possible, see:

                                 http://www.mayoclinic.com/health/disaster-stress/MY01869  

            Unfortunately, these stresses can cause domestic violence to increase. The Hotline for domestic violence triggered by this disaster is: 718 875 5062       http://www.urbanjustice.org/ujc/staff/domestic.html

LANDLORD - TENANT

            If you are a renter and are  “constructively evicted,” i.e., apt damaged and you cannot live there, you do NOT have to pay the rent for as long as you as out and you can’t be evicted. You need to see what lease says re “casualty.”

            IMPORTANT: you need to send proper notice to break the lease because if the apt gets habitable in the future, you could be liable for rent per the lease.

            If you can live there, but there is no hot water or heat – you should negotiate rate abatement, ex., free week, 5-15 % off the rent – much depends on what your lease says.

OIL SPILLS

            In the old days, the NYS DEC would come right down and clean up an oil spill for the sake of the environment. Unfortunately, they have apparently been overwhelmed and have told property owners to clean it themselves. There is helpful information, including a fund where you may be able to file a claim, at:

            http://www.health.ny.gov/publications/2752.pdf

            http://www.osc.state.ny.us/oilspill/index.htm

EDUCATION

            Under “McKinney-Vento,” children who are “homeless” have the right to attend the school they were going to before this happened and may have other rights. If you were displaced by the storm, you children may qualify for various rights. There may be aid for lost books, etc. See:

            http://www.nysteachs.org/

            http://usny.nysed.gov/hurricane-sandy.html

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