Mangia Rest. Corp. v. Utica First Ins. Co.

• Decision Date: 30 March 2021
• Docket Number: 713847/ 2020
• Citation: 148 N.Y.S.3d 606,72 Misc.3d 408
• Court: New York Supreme Court
• Parties: MANGIA RESTAURANT CORP., Plaintiff(s), v. UTICA FIRST INSURANCE COMPANY, Defendant(s).

72 Misc.3d 408

148 N.Y.S.3d 606

MANGIA RESTAURANT CORP., Plaintiff(s),

v.UTICA FIRST INSURANCE COMPANY, Defendant(s).

713847/ 2020

Supreme Court, Queens County, New York.

Decided on March 30, 2021

Plaintiff, Sacco & Fillas, LLP, 3119 Newtown Avenue, Seventh floor, Astoria, New York 11102, (718) 746-3440

Defendant, Farber Brocks & Zane LLP, 400 Garden City Plaza, Garden City, New York 11530, (516) 739-5100

Marguerite A. Grays, J.

It is ordered that the motion by defendant: (1) seeking dismissal of the complaint, pursuant to CPLR § 3211(a)(1) and (7) ; (2) seeking treatment of this motion as one for summary judgment, pursuant to CPLR § 3211(c) ; and (3) for declaratory relief, pursuant to CPLR § 3001 is determined as follows:

Defendant issued an insurance policy to Plaintiff, Oveila d/b/a Mangia Restaurant Corp., effective December 16, 2019 through December 16, 2020 which covered plaintiff's restaurant and bar. Defendant's policy provides coverage for, inter alia , "Business Income", "Civil Authority" and "Extra Expense". As a result of the COVID-19 pandemic, in early May 2020, plaintiff notified defendant of its claim, under the policy, for loss of income. Days later, defendant disclaimed coverage. By Summons and Complaint, dated August 17, 2020, plaintiff asserts a breach of contract action for damages, and seeks a declaration that defendant was responsible for coverage for plaintiff's loss of income suffered as a result of the effects of the COVID-19 virus, and various Executive Orders, issued by the Governor of New York State, for the purpose of containing said virus. The Complaint alleges that such Executive Orders restricted plaintiff "from operating its business in the usual manner causing a loss of income it would otherwise have received in absence of the Orders." Defendant moves this Court for an Order: (1) dismissing the Complaint, pursuant to CPLR § 3211 (a)(1) and (7) ; (2) to treat the motion as one for summary judgment pursuant to CPLR § 3211(c) ; and (3) for a judicial declaration that it has no duty to provide insurance coverage for such a claim, pursuant to CPLR § 3001. Defendant contends that: (1) the subject insurance policy does not cover such loss; (2) that there was not any physical loss or damage to real property involved in plaintiff's claim, as required by the insurance policy; (3) that any civil authority loss was a result of COVID-19, and (4) such virus is specifically excluded from coverage in the policy.

Initially, CPLR § 3211(c), allows that, on a motion to dismiss, "the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment" (see Mihlovan v. Grozavu , 72 N.Y.2d 506, 534 N.Y.S.2d 656, 531 N.E.2d 288 [1988] ; Matter of Gorelik v. Suffolk County Comptroller's Off. , 186 A.D.3d 1518, 131 N.Y.S.3d 686 [2020] ). There exist three exceptions to the notice requitement, i.e. , where subdivision (c) treatment is requested by all parties; where the motion raises a pure question of law addressed by both parties; and where the parties, by laying bare their respective proofs, deliberately chart a summary judgment course (see Hendrickson v. Philbor Motors, Inc. , 102 A.D.3d 251, 955 N.Y.S.2d 384 [2012] ). The second exception has been held to apply in cases such as the one at bar, where a motion to dismiss, pursuant to CPLR § 3211 (a)(1) and (7), a cause of action seeking declaratory relief, was properly converted into a motion for summary judgment the subject cause of action, "inasmuch as it rested entirely upon the construction and interpretation of an unambiguous contractual provision ... ‘exclusively involve(d) issues of law which were fully appreciated and argued by the parties’ " ( F & T Mgt. & Parking Corp. v. Flushing Plumbing Supply Co., Inc. , 68 A.D.3d 920, 923, 893 N.Y.S.2d 66 [2009] quoting Moutafis v. Osborne , 18 A.D.3d 723, 724, 795 N.Y.S.2d 716 [2d Dept. 2005] ; see Brown v. Decaudin , 129 A.D.3d 875, 10 N.Y.S.3d 444 [2d Dept. 2015] ).

Further, again as in the instant case, the Court in the matter of Serrano v. County of Suffolk. 188 A.D.3d 938, 132 N.Y.S.3d 296, 305 [2d Dept. 2020], opined that a motion to dismiss should be treated as a summary judgment motion, "since, in their motion papers, the defendants sought relief pursuant to both CPLR § 3211(a) and § 3212, and specifically requested CPLR § 3211 (c) treatment ... the plaintiff's responsive papers clearly stated that they were being submitted in opposition to the defendant's motion for summary judgment, and the parties demonstrated with their submissions that they were ‘laying bare their proof and deliberately charting a summary judgment course’ " (at 939, quoting Hendrickson v. Philbor Motors, Inc. , 102 A.D.3d at 258-259, 955 N.Y.S.2d 384 ; see Ain v. Allstate Ins. Co. , 181 A.D.3d 875, 122 N.Y.S.3d 340 [2020] ). As such, the Court shall treat this motion as one for summary judgment pursuant to CPLR § 3211 (c).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Ayotte v. Gervasio , 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400 [1993], citing Alvarez v. Prospect Hospital , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Wonderly v. City of Poughkeepsie , 185 A.D.3d 632, 125 N.Y.S.3d 734 [2020] ; Oxford Health Plans (N.Y.), Inc. v. Biomed Pharms., Inc. , 181 A.D.3d 808, 122 N.Y.S.3d 47 [2020] ). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (see Trustees of Columbia Univ. in the City of NY v. D'Agostino Supermarkets, Inc. , 36 N.Y.3d 69, 138 N.Y.S.3d 498, 162 N.E.3d 727 [2020] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). On plaintiff's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving defendants (see Hewitt v. Palmer Veterinary Clinic, PC , 35 N.Y.3d 541, 134 N.Y.S.3d 312, 159 N.E.3d 228 [2020] ; Matter of New York City Asbestos Litig. , 33 N.Y.3d 20, 99 N.Y.S.3d 734, 123 N.E.3d 218 [2019] ; Monroy v. Lexington Operating Partners , LLC, 179 A.D.3d 1053, 118 N.Y.S.3d 132 [2020] ; Rivera v. Town of Wappinger , 164 A.D.3d 932, 83 N.Y.S.3d 178 [2018] ). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v. Vargas , 113 A.D.3d 579, 978 N.Y.S.2d 307 [2014] ; Martin v. Cartledge , 102 A.D.3d 841, 958 N.Y.S.2d 452 [2013] ), and the denial of summary judgment.

The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" ( Lopez v. Beltre , 59 A.D.3d 683, 685, 873 N.Y.S.2d 726 [2009] ; Santiago v. Joyce , 127 A.D.3d 954, 7 N.Y.S.3d 403 [2015] ). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues or where the issue is ‘arguable’ [citations omitted] ( Sillman v. Twentieth Century-Fox Film Corp. , 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ; see also, Rotuba Extruders v. Ceppos , 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ; Andre v. Pomeroy , 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ; Stukas v. Streiter , 83 A.D.3d 18, 918 N.Y.S.2d 176 [2011] ; Dykeman v. Heht , 52 A.D.3d 767, 861 N.Y.S.2d 732 [2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Collado v. Jiacono , 126 A.D.3d 927, 6 N.Y.S.3d 116 [2014] ), citing Scott v. Long Is. Power Auth. , 294 A.D.2d 348, 348, 741 N.Y.S.2d 708 [2002] ; see Charlery v. Allied Transit Corp. , 163 A.D.3d 914, 81 N.Y.S.3d 523 [2018] ; Chimbo v. Bolivar , 142 A.D.3d 944, 37 N.Y.S.3d 339 [2016] ; Bravo v. Vargas , 113 A.D.3d 579, 978 N.Y.S.2d 307 [2014] ).). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co. , 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988] ; Winegrad v. New York Med. Ctr. , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Cach, LLC v. Khan , 188 A.D.3d 1135, 132 N.Y.S.3d 794 [2020] ).

The evidence submitted in support of defendant's motion, in the form of the applicable policy of insurance, was documentary, in that it was of undisputed authenticity, unambiguous and undeniable (see Twinkle Play Corp. v. Alimar Props., Ltd. , 186 A.D.3d 1447, 128 N.Y.S.3d 848 [2020] ; Qureshi v. Vital Transp., Inc. , 173 A.D.3d 1076, 103 N.Y.S.3d 515 [2019] ; Mehrhof v. Monroe-Woodbury Central School Dist. , 168 A.D.3d 713, 91 N.Y.S.3d 503 [2019] ; Anderson v. Armento. 139 A.D.3d 769, 33 N.Y.S.3d 294 [2016] ). Such insurance policy was an out-of-court transaction, i.e., a contract, in admissible form, "the contents of which are essentially undeniable" ( Phillips v. Taco Bell Corp. , 152 A.D.3d 806, 807, 60 N.Y.S.3d 67 [2017] ; see Porat v. Rybina , 177 A.D.3d 632, 111 N.Y.S.3d 625 [2019] ; Fox, Paine & Co., LLC v. Houston Cas. Co. , 153 A.D.3d 673, 60 N.Y.S.3d 294 [2017] ), which could conclusively establish a possible defense to plaintiffs’ claims as a matter of law (see Pacella v. RSA Consultants, Inc. , 164 A.D.3d 806, 83 N.Y.S.3d 630 [2018] ; Greenberg v. Spitzer , 155 A.D.3d 27, 62 N.Y.S.3d 372 [2017] ; Phillips v. Taco Bell Corp. , 152 A.D.3d 806, 60 N.Y.S.3d 67 [2017]; Scialdone v. Stepping Stones...