Torches on the Hudson, LLC v. The Sentinel Insurance Company, LTD. et al
MEMORANDUM OPINION AND ORDER: re: 23 MOTION to Dismiss filed by The Sentinel Insurance Company, LTD., 29 LETTER MOTION for Oral Argument. addressed to Judge Philip M. Halpern from Charles Michael dated May 12, 2021. filed by The Sentinel Ins urance Company, LTD. For the foregoing reasons, Defendant's motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion sequences pending at Doc. 23 and Doc. 29 and close this case. SO ORDERED. (Signed by Judge Philip M. Halpern on 11/18/2021) (ama) Transmission to Orders and Judgments Clerk for processing.
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TORCHES ON THE HUDSON, LLC d/b/a
BLU POINTE; JOSCO INC,
-againstTHE SENTINEL INSURANCE COMPANY,
LTD. and THE HARTFORD FINANCIAL
SERVICES GROUP, INC.,
PHILIP M. HALPERN, United States District Judge:
Almost two years after COVID-19 first spread across the globe and brought society as we
commonly knew it to a halt, the pandemic’s impact continues to be felt everywhere—including in
the world of insurance litigation. See, e.g., Metro. Dental Arts P.C. v. Hartford Fin. Servs. Grp.,
Inc., No 20-CV-02443, 2021 WL 5027536 (E.D.N.Y. Oct. 12, 2021); Hudson Valley Bone & Joint
Surgeons, LLP v. CNA Fin. Corp., No. 20-CV-06073, 2021 WL 4340987 (S.D.N.Y. Sept. 23,
2021); WM Bang LLC v. Travelers Cas. Ins. Co., No. 20-CV-04540, 2021 WL 4150844 (S.D.N.Y.
Sept. 13, 2021); Elite Union Installations, LLC v. Nat’l Fire Ins. Co. of Hartford, No. 20-CV04761, 2021 WL 4155016 (S.D.N.Y. Sept. 13, 2021); Broadway 104, LLC v. XL Ins. Am., Inc.,
No. 20-CV-03813, 2021 WL 2581240 (S.D.N.Y. June 23, 2021); Office Sol. Grp., LLC v. Nat’l
Fire Ins. Co. of Hartford, No. 20-CV-04736, 2021 WL 2403088 (S.D.N.Y. June 11, 2021); see
also Abbey Hotel Acquisition, LLC v. Nat’l Sur. Corp., No. 21-CV-03506, 2021 WL 4522950, at
*1 n.2 (S.D.N.Y. Oct. 1, 2021) (applying Florida law but observing that “there is no conflict
between New York and Florida law”). This particular Memorandum Opinion and Order addresses
a COVID-19-related insurance dispute between Torches on the Hudson, LLC d/b/a Blu Pointe;
Josco Inc. (“Plaintiff”) and Sentinel Insurance Company, Ltd. (“Defendant”).
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 2 of 13
In short, Plaintiff sues for breach of a property insurance agreement, Policy No. 13 SBA
AA3891 (“Policy”), that it purchased from Defendant for a term beginning on June 2, 2019 and
ending on June 2, 2020. (See Doc. 10, “FAC” ¶¶ 14, 127-41).1
Defendant served Plaintiff with its motion to dismiss the First Amended Complaint
(“FAC”), the operative pleading, on March 24, 2021. (See Doc. 23; Doc. 24, “Def. Br.”). Plaintiff
served its opposition thereto on April 21, 2021 (Doc. 26, “Opp. Br.”),2 and the motion was briefed
fully with service of Defendant’s reply memorandum of law on May 12, 2021 (Doc. 28).
For the reasons set forth below, the motion to dismiss is GRANTED.3
Plaintiff has owned and operated a fine dining restaurant in Newburgh, New York, since
2013. (FAC ¶¶ 4, 67-68). As COVID-19 spread in March 2020, the restaurant was impacted by a
variety of Executive Orders issued by then-Governor Andrew M. Cuomo, which limited Plaintiff’s
ability to serve patrons on site. (Id. ¶¶ 26-30). “These Orders,” as characterized by Plaintiff, “were
intended to protect people and property from imminent substantial harm and avoid the occurrence
in the state of New York of a pandemic disaster,” and “were issued pursuant to the Executives’
inherent emergency powers to deal with disasters . . . . They were not the result of the . . . process
typical of laws and regulations.” (Id. ¶¶ 32-33). Plaintiff maintains that it complied with all
Executive Orders and that COVID-19 was present on its property. (Id. ¶¶ 34, 60).
Plaintiff initially pressed two claims for relief—one for breach of contract and one for breach of the
implied covenant of good faith and fair dealing—and proceeded against Defendant and The Hartford
Financial Services Group, Inc. (“Hartford”). (See generally FAC). By Stipulation signed by the parties and
“So Ordered” by the Court on March 15, 2021, both Hartford and the claim for breach of the implied
covenant of good faith and fair dealing were dismissed from this action. (Doc. 22).
Plaintiff’s memorandum of law in opposition to the motion was filed twice. (See Opp. Br.; Doc. 27). As
there are no differences between the documents, the Court cites to the first document filed.
Defendant also filed, on May 12, 2021, a letter requesting oral argument on the motion to dismiss. (Doc.
29). Given the conclusions reached herein, that request is denied as moot.
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 3 of 13
The problem with cooperating with the Executive Orders and countering the presence of
COVID-19, from Plaintiff’s perspective, is that its business model—fine dining along the Hudson
River—could not operate profitably on takeout services alone. (Id. ¶¶ 60, 67-69, 71). Indeed,
Plaintiff avers that the majority of its “revenue derives from . . . on-premises dining and table
service.” (Id. ¶ 70). Despite its preference to offer a fine dining experience on site, the Executive
Orders required that Plaintiff “slow down,” cancel approximately sixty-five events, and provide
only takeout services until June 23, 2020. (Id. ¶¶ 73-79). Plaintiff, consequently, has lost “$1.7
million in revenue since March 16, 2020.” (Id. ¶¶ 81-82).
Having suffered these losses, Plaintiff made a claim under the Policy. (Id. ¶ 98). Defendant,
on or about April 21, 2020, denied Plaintiff’s claim. (Id.). Plaintiff believes that Defendant’s denial
of the claim constitutes a breach of contract. (See generally id. ¶¶ 99-108, 127-41).
This suit followed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 4 of 13
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The factual allegations pled “must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff.” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and
conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
On a Rule 12(b)(6) motion, “the Court is entitled to consider facts alleged in the complaint
and documents attached to it or incorporated in it by reference, documents ‘integral’ to the
complaint and relied upon in it, and facts of which judicial notice may properly be taken under
Rule 201 of the Federal Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41,
43 (2d Cir. 2014); see also Manley v. Utzinger, No. 10-CV-02210, 2011 WL 2947008, at *1 n.1
(S.D.N.Y. July 21, 2011) (“The Court may consider any written instrument attached to the
complaint, statements or documents incorporated into the complaint by reference, and documents
possessed by or known to the plaintiff and upon which plaintiff relied in bringing the suit.”). Still,
“[w]here an extrinsic document is not incorporated by reference, the district court may
nevertheless consider it if the complaint relies heavily upon its terms and effect, which renders the
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 5 of 13
document integral to the complaint.” Schafer v. Direct Energy Servs., LLC, 845 F. App’x 81, 82
(2d Cir. 2021) (internal quotation marks omitted).
Here, the FAC has two attachments. The first attachment, Exhibit 1, is a copy of the Policy.
(FAC at 27-202, “Ex. 1”). The second attachment, Exhibit 2, is a copy of an April 21, 2020 letter
from Defendant denying Plaintiff’s claim for coverage under the Policy. (Id. at 203-08, “Ex. 2”).
As the documents were annexed to the FAC and are integral thereto, the Court properly considers
them at this stage.4 Schafer, 845 F. App’x at 82 n.5.
Choice of Law and Principles of New York Contract Interpretation
Initially, the Court must first determine which law governs the Policy and its interpretation.
As the Policy is silent on this issue, and “[t]he parties apply New York law in their moving papers,”
10012 Holdings, Inc. v. Sentinel Ins. Co., Ltd., 507 F. Supp. 3d 482, 486 n.1 (S.D.N.Y. 2020), the
Court applies New York law.5
The Policy—like any agreement governed by New York law—is “interpreted according to
general rules of contract interpretation. Courts must give effect to the intent of the parties as
expressed in the clear language of their contract. The insured party bears the burden of showing
that the insurance contract covers the loss.” Food for Thought Caterers Corp. v. Sentinel Ins. Co.,
524 F. Supp. 3d 242, 245 (S.D.N.Y. 2021) (internal citations and quotation marks omitted); see
also Nat’l Convention Servs., L.L.C. v. Applied Underwriters Captive Risk Assur. Co., Inc., 239 F.
Citations to Exhibit 1 correspond to the Bates Numbers stamped onto the document by Plaintiff; citations
to Exhibit 2 correspond to the pagination generated by ECF.
Separately, the Court concludes that New York law applies because the Policy concerns insurance for “a
New York-based entity” and “covers property in New York.” Newman Myers Kreines Gross Harris, P.C.
v. Great N. Ins. Co., 17 F. Supp. 3d 323, 327 n.4 (S.D.N.Y. 2014); see also N.Y. Ins. Law § 3103(b)
(directing that no property insurance policy “shall provide that the rights or obligations of the insured . . .
shall be governed by the laws of any jurisdiction other than this state”).
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 6 of 13
Supp. 3d 761, 784 (S.D.N.Y. 2017) (explaining that if an insurance contract’s terms are “clear and
unambiguous,” they are “understood in their plain, ordinary and proper sense” (internal quotation
marks omitted)). “The initial interpretation of the contract and whether its terms are ambiguous
are questions of law for the Court to decide.” Food for Thought Caterers Corp., 524 F. Supp. 3d
at 246 (citing Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33,
42 (2d Cir. 2006)). “[T]erms are unambiguous where they provide ‘a definite and precise meaning,
unattended by danger of misconception in the purport of the contract itself, and concerning which
there is no reasonable basis for a difference of opinion.’” Id. (quoting Olin Corp. v. Am. Home
Assur. Co., 704 F.3d 89, 99 (2d Cir. 2012)).
Plaintiff’s business generally remained open—albeit less profitably and at reduced levels—
throughout 2020. The question, then, is whether a reduction in profitability triggers coverage under
any of the provisions identified by Plaintiff. The Court concludes that it does not do so.6
A. Business Income and Extra Expense Coverage
The first coverage Plaintiff identifies, “Business Income and Extra Expense Coverage,” is
set forth in two separate provisions in the Policy. (See FAC ¶¶ 112-17; Ex. 1 at POLICY047).
The Policy provides as a general proposition that Defendant:
will pay for direct physical loss of or physical damage to Covered
Property at the premises described in the Declarations . . . caused by
or resulting from a Covered Cause of Loss.
The Courts notes that “the great majority of courts that have addressed this issue of insurance coverage
for business losses sustained as a result of COVID-19 restrictions have held that a complaint which only
alleges loss of use of the insured property fails to satisfy the requirement for physical damage or loss.” Food
for Thought Caterers Corp., 524 F. Supp. 3d at 247. This includes, as noted in Defendant’s September 24,
2021 letter, three decisions on motions to dismiss rendered in the last year by this Court from the bench.
(Doc. 30). The Court is not aware of, and Plaintiff has not advised of, any cases applying New York law
that concluded otherwise.
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 7 of 13
(Ex. 1 at POLICY038). Bearing this principle in mind, Section A.5.o. outlines the parameters of
Business Income Coverage. That clause explains that Defendant
will pay for the actual loss of Business Income [Plaintiff] sustain[s]
due to the necessary suspension of [Plaintiff’s] “operations” during
the “period of restoration”. The suspension must be caused by direct
physical loss of or physical damage to property at the “scheduled
premises” . . . caused by or resulting from a Covered Cause of Loss.
(Id. at POLICY047). As for Extra Expense Coverage, Section A.5.p. explains that Defendant:
will pay reasonable and necessary Extra Expense [Plaintiff] incur[s]
during the “period of restoration” that [Plaintiff] would not have
incurred if there had been no direct physical loss or physical damage
to property at the “scheduled premises” . . . caused by or resulting
from a Covered Cause of Loss.
(Id.). “Covered Cause of Loss” is, in turn, defined as “RISKS OF DIRECT PHYSICAL LOSS,”
subject to certain limitations and exclusions. (Id. at POLICY039).
Plaintiff’s theories of coverage, with respect to these provisions, are that: (1) “actual onsite COVID-19 contamination” qualifies under the insurance contract; (2) the actions it took “to
preserve property and persons from an imminent risk of harm” fall under these coverages; and (3)
the prospect “of imminent harm” posed by COVID-19 “is itself a covered cause of loss.” (FAC ¶¶
85(i)-(iii); see also id. ¶¶ 60, 63-64). In light of applicable New York State precedent, specifically
Roundabout Theatre Co. v. Cont’l Cas. Co., 751 N.Y.S.2d 4 (App. Div. 2002), the Court must—
like numerous courts before it—reject these arguments.
The Appellate Division, First Department, in Roundabout Theatre, held that the plaintiff,
a theatre company, “was not entitled to coverage because physical damage to the theatre did not
cause it to suspend its business operations, and the policy ‘clearly and unambiguously provide[d]
coverage only where the insured’s property suffer[ed] direct physical damage.’” Food for Thought
Caterers Corp., 524 F. Supp. 3d at 247 (quoting Roundabout Theatre, 751 N.Y.S. 2d at 8
(alterations in original)). Since Roundabout Theatre was decided, “courts applying New York law
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 8 of 13
have consistently concluded that loss of use of an insured’s premises does not trigger Business
Income coverage when the policy provides that such coverage requires evidence of physical
damage or physical loss.” Id.; 10012 Holdings, Inc., 507 F. Supp. 3d at 486-87 (“New York courts
interpreting substantially identical language -- ‘loss of, damage to, or destruction of property or
facilities’ -- have found it limited to losses involving physical damage to the insured’s property.”
(emphasis in original)); see also United Air Lines, Inc. v. Ins. Co. of State of PA, 439 F.3d 128,
133 (2d Cir. 2006); Metro. Dental Arts P.C., 2021 WL 5027536, at *3 (“This Court agrees with
the holding in 10012 Holdings and the many other cases that reached the same conclusion.
Plaintiff’s business property insurance policy requires some form of ‘direct physical loss of or
physical damage’ to the insured premises to trigger loss of business income coverage.”); Newman
Myers Kreines Gross Harris, P.C., 17 F. Supp. 3d at 331; Michael Cetta, Inc. v. Admiral Indem.
Co., 506 F. Supp. 3d 168, 175-82 (S.D.N.Y. 2020); Rye Ridge Corp. v. Cincinnati Ins. Co., No.
20-CV-07132, 2021 WL 1600475, at *2-3 (S.D.N.Y. Apr. 23, 2021).
Although Plaintiff attempts to differentiate the policy language and facts underlying
Roundabout Theatre from those extant here, its effort is unavailing. Indeed, Judge Schofield, in
considering the same language in a different COVID-19 insurance case, found the language
“substantially identical” to that addressed by the Appellate Division in Roundabout Theatre. 10012
Holdings, Inc., 507 F. Supp. 3d at 486-87. What’s more, courts in the Southern District have
routinely applied Roundabout Theatre in adjudicating disputes arising from insurance
agreements—and specifically in the context of COVID-19 business interruption. See, e.g., Spirit
Realty Capital, Inc. v. Westport Ins. Corp., No. 21-CV-02261, 2021 WL 4926016, at *2 (S.D.N.Y.
Oct. 21, 2021); Northwell Health, Inc. v. Lexington Ins. Co., No. 21-CV-01104, 2021 WL
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 9 of 13
3139991, at *6 (S.D.N.Y. July 26, 2021); Broadway 104, LLC, 2021 WL 2581240, at *3. Plaintiff
simply offers no convincing reason to reject these holdings.
Plaintiff also argued in its opposition that “[t]he presence of COVID-19 on Plaintiff’s
property constitute[d] property damage . . . .” (Opp. Br. at 17). Assuming that Plaintiff’s business
was contaminated by COVID-19, “[w]here courts interpreted Business Income provisions to
require evidence of physical damage, as required under New York law, alleging the presence of
the virus at the insured’s premises was inadequate to survive a motion to dismiss on this type of
insurance claim.” Food for Thought Caterers Corp., 524 F. Supp. 3d at 249. In fact, Judge Koeltl
has explained that “contamination of the premises by a virus does not constitute a ‘direct physical
loss’ because the virus’s presence can be eliminated by ‘routine cleaning and disinfecting,’ and
‘an item or structure that merely needs to be cleaned has not suffered’ a direct physical loss.” Id.
(quoting Tappo of Buffalo, LLC v. Erie Ins. Co., No. 20-CV-00754, 2020 WL 7867553, at *4
(W.D.N.Y. Dec. 29, 2020)); see also Spirit Realty Capital, Inc., 2021 WL 4926016, at *3 (“The
Court is unpersuaded. First, the overwhelming weight of precedent, both from lower New York
courts and district courts in this Circuit, holds that COVID-19 does not qualify as ‘physical loss or
damage.’” (collecting cases)).
The Court rejects Plaintiff’s arguments regarding the Business Interruption or Extra
Expense Coverages. Accordingly, Plaintiff has failed to allege plausibly “direct physical loss of or
physical damage to” its property caused by COVID-19 that would trigger either of these two
coverages. (See also Ex. 2 at 204 (concluding, inter alia, that “since the coronavirus did not cause
property damage at [Plaintiff’s] place of business . . . this loss is not covered”)). Any claim
stemming from these coverage provisions is, consequently, dismissed.
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 10 of 13
B. Civil Authority Coverage
Plaintiff’s third coverage theory concerns situations where a business loses income by
operation of governmental directives. (See FAC ¶¶ 118-20). The provision explaining coverage
for Civil Authority Orders, Section A.5.q., states that:
[t]his insurance is extended to apply to the actual loss of Business
Income [Plaintiff] sustain[s] when access to [Plaintiff’s] “scheduled
premises” is specifically prohibited by order of a civil authority as
the direct result of a Covered Cause of Loss to property in the
immediate area of [Plaintiff’s] “scheduled premises”.
(Ex. 1 at POLICY048). Plaintiff’s theories with respect to the Civil Authority Coverage are that
the Executive Orders meet the parameters of this provision because they: (1) rendered Plaintiff’s
business “uninhabitable and unusable on premises and in other forms;” and (2) were issued
“pursuant to inherent authorities to act in a disaster regardless of the actual presence of COVID19 virus on-site.” (FAC ¶¶ 85(iv)-(v); see also id. ¶¶ 61-62, 65). The Court rejects these contractual
theories as well.
The coverage secured in this provision is, by its very terms, limited to situations where
Plaintiff incurs losses because a government specifically prohibited access to Plaintiff’s property
as a direct result of physical loss or damage to property “in the immediate area” around Plaintiff’s
property. That is simply not the case here. First, Plaintiff does not allege plausibly that any specific
Executive Order “prohibit[ed]” access to its property. At best, Plaintiff complains that Executive
Orders curtailed its preferred business model. (See FAC ¶¶ 26-30). While this may well be the
case, “[t]his workforce reduction requirement simply does not amount to denial of access to the
property. Unlike a situation, for example, of an unsafe condition at an adjoining building requiring
a safety evacuation of a covered property, the owner of the property could continue to access the
property despite the total reduction in the workforce.” Food for Thought Caterers Corp., 524 F.
Supp. 3d at 250. Second, even if that were not the case, the Executive Orders were not the result
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 11 of 13
of “direct physical loss of or damage to” any property. As Judge Kuntz observed when considering
the same language in a different case approximately one month ago:
“[N]othing about New York’s shutdown orders enable [Plaintiff] to
satisfy the express requirements of the Civil Authority provision.
[Plaintiff] cannot plausibly plead that the shutdown orders (1)
prohibited ‘access to’ its premises; or (2) were ‘the direct result of a
risk of direct physical loss to property in the immediate area.’”
Metro. Dental Arts P.C., 2021 WL 5027536, at *3 (quoting Sharde Harvey, DDS, PLLC v. Sentinel
Ins. Co., Ltd., No. 20-CV-03350, 2021 WL 1034259, at *13 (S.D.N.Y. Mar. 18, 2021) (alterations
in original)); (see also Ex. 2 at 204 (concluding, inter alia, that “since the coronavirus did not
cause property damage . . . in the immediate area, this loss is not covered”)).
Any claim based upon the Civil Authority Coverage is, accordingly, dismissed.
C. Extended Business Income Coverage
The final coverage under which Plaintiff insists its losses fall is the Extended Business
Income Coverage outlined in Section A.5.r. (See FAC ¶¶ 121-2). That section states, in pertinent
part, that when:
the necessary suspension of [Plaintiff’s] “operations” produces a
Business Income loss payable under this policy, [Defendant] will
pay for the actual loss of Business Income [Plaintiff] incur[s] during
(Ex. 1 at POLICY048). Plaintiff has not alleged the existence of a loss payable under the Business
Income Coverage, so it cannot state a claim for Extended Business Income Coverage. See
Poughkeepsie Waterfront Dev., LLC v. Travelers Indem. Co. of Am., No. 20-CV-04890, 2021 WL
4392304, at *1 n.2 (S.D.N.Y. Sept. 24, 2021). Any liability grounded on this coverage is, therefore,
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 12 of 13
D. Miscellaneous Coverage Provisions
Plaintiff, taking a blunderbuss approach at the end of the FAC, claimed in conclusory
fashion that four other coverages might apply. (See FAC ¶ 123). Defendant moved to dismiss any
breach of contract claim based on those coverages, and Plaintiff failed to respond to those
arguments. (Compare Def. Br. at 22-23, with Opp. Br.). These theories are, therefore, deemed
abandoned and are dismissed on that basis. See, e.g., Ventillo v. Falco, No. 19-CV-03664, 2020
WL 7496294, at *12 (S.D.N.Y. Dec. 18, 2020) (explaining that where a plaintiff fails to respond
to a defendant’s argument on a motion to dismiss, the point is conceded); see also Felske v.
Hirschmann, No. 10-CV-08899, 2012 WL 716632, at *3 (S.D.N.Y. Mar. 1, 2012) (“A plaintiff
effectively concedes a defendant’s arguments by his failure to respond to them.”).
However, even if the theories were not deemed abandoned, the Court would nevertheless
conclude that the provisions are inapplicable here.
The first, Expediting Expenses Coverage, “appl[ies] only to direct physical loss or physical
damage caused by or resulting from an Equipment Breakdown Accident . . . .” (Ex. 1 at
POLICY041). Plaintiff makes no allegations supporting the existence of an “Equipment
Breakdown Accident.” (See generally FAC; see also Ex. 1 at POLICY041 (defining the phrase to
mean, inter alia, a mechanical breakdown). The second, Business Income from Dependent
Properties, requires that Defendant reimburse Plaintiff “for the actual loss of Business Income
[Plaintiff] sustain[s] due to direct physical loss or physical damage at the premises of a dependent
property caused by or resulting from a Covered Cause of Loss.” (Ex. 1 at POLICY048). Aside
from failing to plead a Covered Cause of Loss, Plaintiff also fails to identify any “dependent
property” in the FAC. (See generally FAC). The third, Claim Expenses Coverage, is triggered
when Plaintiff incurs expenses—at Defendant’s “specific request”—in connection with
Case 7:20-cv-07855-PMH Document 31 Filed 11/18/21 Page 13 of 13
investigation of a claim or determining the amount of loss. (Ex. 1 at POLICY145). Plaintiff has
not identified any such “specific request.” (See generally FAC). The final coverage, Super Stretch
for Business Services, is not a specific grant of coverage, but rather, the title of an endorsement—
with a variety of subsections—modifying the Policy. (Ex. 1 at POLICY144-150). None of these
theories could withstand Defendant’s motion to dismiss.
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. The Clerk of the
Court is respectfully directed to terminate the motion sequences pending at Doc. 23 and Doc. 29
and close this case.
White Plains, New York
November 18, 2021
PHILIP M. HALPERN
United States District Judge
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