Summary
finding access to a covered location was not "prohibited" where the property "was accessible to the public, plaintiff's employees and its vendors"
Summary of this case from Elite Union Installations, LLC v. Nat'l Fire Ins. Co. of HartfordOpinion
1371
June 10, 2003.
Order, Supreme Court, New York County (Barbara Kapnick, J.), entered June 28, 2002, which granted defendant's motion for partial summary judgment, dismissing plaintiff's first cause of action to the extent that it sought damages for alleged loss of business due to business interruption beyond December 8, 1997, and denied plaintiff's cross motion for partial summary judgment, unanimously affirmed, without costs.
Joshua L. Mallin, for plaintiffs-appellants.
Walter J. Andrews, for defendant-respondent.
Before: Buckley, P.J., Mazzarelli, Rosenberger, Friedman, Marlow, JJ.
Contrary to plaintiff's contention, the language of the subject policy clearly and unambiguously provides that for business interruption coverage to be triggered, there must be a "necessary suspension," i.e., a total interruption or cessation (see Buxbaum v. Aetna Life Cas. Co., 103 Cal App. 4th 434, 444, review denied 2003 Cal LEXIS 225; Keetch v. Mut. of Enumclaw Ins. Co., 66 Wn. App. 208; Am. States Ins. Co. v. Creative Walking, Inc., 16 F. Supp.2d 1062, affd 175 F.3d 1023; Royal Indem. Ins. Co. v. Mikob Props., Inc., 940 F. Supp. 155; Home Indem. Co. v. Hyplains Beef, 893 F. Supp. 987, 991-992, affd 89 F.3d 850), of the insured's business operations.
Plaintiff's claim for coverage under the "civil authority" provision of the policy was properly limited to plaintiff's loss of income while access to its premises was denied by an act of civil authority, which occurred only on December 7 and 8, 1997. Thereafter, although vehicular and pedestrian traffic in the area was diverted, access to the restaurant was not denied; the restaurant was accessible to the public, plaintiff's employees and its vendors (see 730 Bienville Partners, Ltd. v. Assur. Co. of Am., 2002 U.S. Dist LEXIS 18780 [ED La., Sept. 30, 2002], affd 2003 U.S. App. LEXIS 8570 [5th Cir., April 29, 2003]; St. Paul's Mercury Ins. Co. v. Magnolia Lady, Inc., 1999 U.S. Dist LEXIS 17895 [ND Miss., Nov. 4, 1999]).
The IAS court properly found that issues of fact precluded a grant of summary judgment on plaintiff's claim for extra expenses.
We have reviewed plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.