FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`OF NEW YORK
`
`THREE
`R.P.
`SQUARE
`
`ASSOCIATES,
`THIRTY
`
`Index
`
`No.:
`
`SUMMONS
`
`ASSOCIATES,
`ASSOCIATES,
`TEN WEST
`
`ASSOCIATES,
`42-52 WEST
`FORTIETH
`
`LLC,
`
`20-136
`OF THE STATE
`COURT
`SUPREME
`OF NEW YORK
`COUNTY
`------------------------------------------------------------------------------------X
`TWENTY
`FORTY-FOUR
`EIGHTEEN
`KOFLER
`11 MADISON
`ASSOCIATES,
`NORTH ASSOCIATES,
`THIRTY
`THIRD
`ARCADE
`FORTY
`EIGHT
`BUILDING
`SEVEN
`39 STREET,
`ASSOCIATES,
`ONE TEN WEST
`411
`ASSOCIATES,
`4 BRYANT
`AVENUE
`PARK
`ASSOCIATES,
`WEST
`SQUARE
`16 MADISON
`ASSOCIATES,
`THE ARSENAL
`34 STREET,
`COMPANY,
`ANNEX
`THE ARSENAL
`1605 MAIN
`CORP.,
`39™ STREET
`WEST
`231/249
`ASSOCIATES,
`39™ STREET
`FASHION
`CORP.,
`ASSOCIATES,
`DEER
`LEFCOURT,
`LLC,
`TRU-UNION,
`LLC,
`11 DAYTON
`TECHNOLOGIES,
`AVENUE,
`LLC,
`LEFCOURT
`TERESHARAN
`CENTRAL,
`LLC,
`
`LLC,
`FIFTH
`
`ASSOCIATES,
`317 EAST
`
`LLC,
`STREET,
`231 WEST
`
`PARK
`
`LLC,
`REALTY,
`
`The Plaintiffs
`New York
`of
`place
`
`County
`trial.
`
`designate
`as the
`
`CORP.,
`
`The basis
`Plaintiffs'
`
`of venue
`principal
`
`business:
`
`.
`is
`place
`
`of
`
`411 5"¹ Avenue.
`New York, NY 10016
`
`-against-
`
`AFFILIATED
`
`FM INSURANCE
`
`COMPANY,
`
`------------------------------------------------------------------------------------X
`To the above-named
`
`Defendant(s)
`
`Plaintiffs,
`
`Defendant.
`
`SUMMONED
`complaint
`
`the
`
`in this
`
`action
`and
`to
`serve
`
`a
`of
`
`YOU ARE HEREBY
`to answer
`to serve
`complaint
`the
`with
`your
`if
`a notice
`this
`is not
`served
`summons,
`answer,
`or,
`Plaintiffs'
`of
`after
`within
`on the
`exclusive
`this
`the service
`20 days
`summons,
`Attorney(s)
`if
`after
`(or within
`of service
`is complete
`this
`summons
`is not personally
`the service
`30 days
`of New York);
`in
`of
`your
`to appear
`or answer,
`within
`case
`failure
`to you
`the State
`and
`will
`be taken
`for
`the relief
`in the complaint.
`against
`you
`by default
`demanded
`
`of
`
`copy
`appearance,
`of
`the day
`delivered
`judgment
`
`Dated:
`
`New York,
`November
`
`New York
`12, 2020
`
`Defendant's
`
`address:
`
`270 Central
`
`Johnston,
`
`Avenue
`RI 02919
`
`P.C.
`
`WEG AND MYERS,
`for
`Attorneys
`Plaintiffs
`Federal
`Plaza
`2nd FlOOr
`52 Duane
`Street,
`New York
`New York,
`10007
`227-4210
`(212)
`
`1 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`OF NEW YORK
`
`ASSOCIATES,
`ASSOCIATES,
`TEN WEST
`BUILDING
`
`TWENTY
`11 MADISON
`THIRTY
`THIRD
`
`THREE
`R.P.
`SQUARE
`
`FORTY
`39
`
`Index
`
`No.
`
`COMPLAINT
`
`20-136
`OF THE STATE
`COURT
`SUPREME
`OF NEW YORK
`COUNTY
`--------------------------------------------------------------------------------------X
`FORTY-FOUR
`EIGHTEEN
`KOFLER
`ASSOCIATES,
`NORTH ASSOCIATES,
`ASSOCIATES,ARCADE
`ASSOCIATES,
`42-52 WEST
`EIGHT
`THIRTY
`SEVEN
`ASSOCIATES,
`FORTIETH
`ONE TEN WEST
`ASSOCIATES,
`LLC,
`STREET,
`AVENUE
`4 BRYANT
`PARK
`411
`FIFTH
`ASSOCIATES,
`SQUARE
`WEST
`MADISON
`ASSOCIATES,16
`317 EAST
`THE ARSENAL
`34 STREET,
`LLC,
`ANNEX
`THE ARSENAL
`1605 MAIN
`CORP.,
`39™ STREET
`WEST
`231/249
`ASSOCIATES,
`39™ STREET
`FASHION
`CORP.,
`ASSOCIATES,
`DEER
`LEFCOURT,
`LLC,
`TRU-UNION,
`LLC,
`11 DAYTON
`TECHNOLOGIES,
`AVENUE,
`LLC,
`LEFCOURT
`TERESHARAN
`CENTRAL,
`LLC,
`
`ASSOCIATES,
`COMPANY,
`STREET,
`231 WEST
`
`LLC,
`CORP.,
`
`PARK
`
`LLC,
`REALTY,
`
`-against-
`
`AFFILIATED
`
`FM INSURANCE
`
`COMPANY
`
`--------------------------------------------------------------------------------------X
`
`Plaintiffs,
`
`Defendant.
`
`FORTY-FOUR
`
`EIGHTEEN
`
`ASSOCIATES,
`
`TWENTY
`
`THREE
`
`R.P.
`
`ASSOCIATES,
`
`KOFLER
`
`ASSOCIATES,
`
`11 MADISON
`
`SQUARE
`
`NORTH
`
`ASSOCIATES,
`
`TEN WEST
`
`THIRTY
`
`THIRD
`
`ASSOCIATES,
`
`ARCADE
`
`BUILDING
`
`ASSOCIATES,
`
`FORTY
`
`EIGHT
`
`THIRTY
`
`SEVEN
`
`ASSOCIATES,
`
`42-52 WEST
`
`39 STREET,
`
`LLC,
`
`ONE TEN WEST
`
`FORTIETH
`
`ASSOCIATES,
`
`411
`
`FIFTH
`
`AVENUE
`
`ASSOCIATES,
`
`4 BRYANT
`
`PARK
`
`ASSOCIATES,
`
`16
`
`MADISON
`
`SQUARE
`
`WEST
`
`ASSOCIATES,
`
`317 EAST
`
`34 STREET,
`
`LLC,
`
`THE
`
`ARSENAL
`
`COMPANY,
`
`LLC,
`
`THE
`
`ARSENAL
`
`ANNEX
`
`CORP.,
`
`1605 MAIN
`
`STREET,
`
`LLC,
`
`231/249
`
`WEST
`
`39™ STREET
`
`ASSOCIATES,
`
`231
`
`WEST
`
`39™ STREET
`
`CORP.,
`
`FASHION
`
`2
`
`2 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`ASSOCIATES, LEFCOURT, LLC, TRU-UNION, LLC, DEER PARK TECHNOLOGIES, LLC,
`
`11 DAYTON AVENUE, LLC, LEFCOURT CENTRAL, LLC, TERESHARAN REALTY,
`
`Plaintiffs (“Plaintiffs”) by their attorneys WEG AND MYERS, P.C., as and for their Complaint
`
`herein allege as follows:
`
`1.
`
`Plaintiffs, together with their managing agent Adams & Company Real Estate,
`
`INTRODUCTION
`
`LLC, manages and/or owns a large portfolio of real estate properties throughout New York.
`
`2.
`
`Like most property owners, out of concern for the general possibility of unforeseen
`
`loss, Plaintiffs procured insurance in order to protect its assets against fortuitous losses.
`
`3.
`
`Specifically, Plaintiffs procured an “all risk” insurance policy sold by Affiliated
`
`FM Insurance Company (“Affiliated FM”) which was in full force and effect when the Covid-19
`
`pandemic swept through the nation.
`
`4.
`
`The Covid-19 pandemic has caused physical loss or damage to high volume
`
`commercial tenants and retail businesses.
`
`5.
`
`In particular, in response to the damage being inflicted, and to protect the public
`
`from further exposure to infected areas, New York State and New York City both issued “stay at
`
`home” orders which prohibited Plaintiffs from continuing its normal business operations.
`
`6.
`
`As a result of the retail tenants being forced to shut their doors, they stopped paying
`
`rent, causing a substantial loss to Plaintiffs.
`
`7.
`
`Plaintiffs fully expected that, in light of the all-encompassing all-risk policy of
`
`insurance, Defendant would be responsive to their insurance claim.
`
`8.
`
`Defendant’s failure to provide Plaintiffs with coverage for losses sustained due to
`
`the outbreak of Covid-19 has forced Plaintiffs to bring this litigation.
`
`
`
`3
`
`3 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`PARTIES
`
`9.
`
`At all times hereinafter mentioned, Forty-Four Eighteen Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`10.
`
`At all times hereinafter mentioned, Twenty Three R.P. Associates was a partnership
`
`registered in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`11.
`
`At all times hereinafter mentioned, Kofler Associates was a partnership registered
`
`in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`12.
`
`At all times hereinafter mentioned, 11 Madison Square North Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`13.
`
`At all times hereinafter mentioned, Ten West Thirty Third Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`14.
`
`At all times hereinafter mentioned, Arcade Building Associates was a partnership
`
`registered in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`15.
`
`At all times hereinafter mentioned, Forty Eight Thirty Seven Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`16.
`
`At all times hereinafter mentioned, 42-52 West 39 Street, LLC, was a domestic
`
`limited liability company duly organized and existing under and by virtue of the laws of New
`
`York, having its principal place of business at 411 5th Avenue, New York, New York.
`
`
`
`4
`
`4 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`17.
`
`At all times hereinafter mentioned, One Ten West Fortieth Associates, was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`18.
`
`At all times hereinafter mentioned, 411 Fifth Avenue Associates, was a partnership
`
`registered in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`19.
`
`At all times hereinafter mentioned, 4 Bryant Park Associates was a partnership
`
`registered in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`20.
`
`At all times hereinafter mentioned, 16 Madison Square West Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`21.
`
`At all times hereinafter mentioned, 317 East 34 Street, LLC, was a domestic limited
`
`liability company duly organized and existing under and by virtue of the laws of New York, having
`
`its principal place of business at 411 5th Avenue, New York, New York.
`
`22.
`
`At all times hereinafter mentioned, The Arsenal Company, LLC, was a domestic
`
`limited liability company duly organized and existing under and by virtue of the laws of New
`
`York, having its principal place of business at 411 5th Avenue, New York, New York.
`
`23.
`
`At all times hereinafter mentioned, The Arsenal Annex Corp., was a domestic
`
`corporation duly organized and existing under and by virtue of the laws of New York, having its
`
`principal place of business at 411 5th Avenue, New York, New York.
`
`24.
`
`At all times hereinafter mentioned, 231/249 West 39th Street Associates was a
`
`partnership registered in the State of New York with an address at 411 5th Avenue, New York,
`
`New York.
`
`
`
`5
`
`5 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`25.
`
`At all times hereinafter mentioned, 231 West 39th Street, Corp., was a domestic
`
`corporation duly organized and existing under and by virtue of the laws of New York, having its
`
`principal place of business at 411 5th Avenue, New York, New York.
`
`26.
`
`At all times hereinafter mentioned, Fashion Associates was a partnership registered
`
`in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`27.
`
`At all times hereinafter mentioned, LEFCOURT, LLC, was a foreign limited
`
`liability company duly organized and existing under and by virtue of the laws of Florida and
`
`authorized to do business in the State of New York, having its principal place of business at 411
`
`5th Avenue, New York, New York.
`
`28.
`
`At all times hereinafter mentioned, 11 Dayton Avenue, LLC, was a domestic
`
`limited liability company duly organized and existing under and by virtue of the laws of New
`
`York, having its principal place of business at 411 5th Avenue, New York, New York.
`
`29.
`
`At all times hereinafter mentioned, Lefcourt Central, LLC, was a domestic limited
`
`liability company duly organized and existing under and by virtue of the laws of New York, having
`
`its principal place of business at 411 5th Avenue, New York, New York.
`
`30.
`
`At all times hereinafter mentioned, Teresharan Realty was a partnership registered
`
`in the State of New York with an address at 411 5th Avenue, New York, New York.
`
`31.
`
`At all times hereinafter mentioned, Defendant AFFILIATED FM INSURANCE
`
`COMPANY (hereinafter referred to as “Defendant or “Affiliated FM”) was and is a foreign
`
`corporation organized and existing under and by virtue of the laws of Rhode Island, having its
`
`principal place of business at 270 Central Avenue, Johnston, Rhode Island
`
`
`
`
`
`
`
`6
`
`6 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`THE NOVEL CORONAVIRUS AND ITS EFFECTS
`
`32.
`
`It is beyond cavil that the world is currently experiencing a global pandemic from
`
`a disease caused by a novel coronavirus (specifically, SARS-COV-2) and commonly referred to
`
`as Covid-19.
`
`33.
`
`From as early as December 2019, Covid-19 began spreading, first in China and
`
`then, because the disease is highly contagious, rapidly around the globe.
`
`34.
`
`The first confirmed case of the virus outside China was diagnosed on January 13,
`
`2020 in Bangkok, Thailand with the number of cases exceedingly increasing worldwide.
`
`35.
`
`On January 30, 2020, the World Health Organization (“WHO”) declared the Covid-
`
`19 outbreak constituted a public health emergency of international concern.
`
`36.
`
`Not only is SARS-COV-2 transmitted via human-to-human, but the WHO and
`
`scientific studies have confirmed that the virus can remain infectious on objects and surfaces.
`
`37.
`
`According to a study documented in The New England Journal of Medicine, Covid-
`
`19 was detectable in aerosols for up to 3 hours, up to 4 hours on copper, up to 24 hours on
`
`cardboard, and up to 3 days on plastic and stainless steel.1
`
`38.
`
`Indeed, scientific studies suggest that individuals could get Covid-19 through
`
`indirect contact with surfaces or objects used by an infected person, regardless of whether the
`
`infected person was symptomatic.
`
`39.
`
`40.
`
`All of these materials are used and found throughout the insured premises.
`
`By February 25, 2020, the Center for Disease Control (“CDC”) warned Americans
`
`that the world was on the brink of a global pandemic, effectively dismantling any notion that
`
`SARS-COV-2 would not affect the population of the United States.
`
`
`1 https://www.nejm.org/doi/full/10.1056/nejmc2004973
`
`
`
`7
`
`7 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`41.
`
`From that point forward, Covid-19 and its damaging consequences received wide
`
`spread media attention.
`
`42.
`
`As a result of this outbreak, the Center for Disease Control began recommending
`
`that individuals stay at home and those who are not sick engage in preventative measures such as
`
`constant hand washing and the avoidance of activities that would bring them in close proximity of
`
`people or surfaces where the virus resides.
`
`43.
`
`Given the nature of Plaintiffs’ business, the spread of the Covid-19 virus led to
`
`significant economic damages.
`
`44.
`
`These damages resulted from damage to and from within Plaintiffs’ insured
`
`premises as well as from premises within the vicinity of the insured locations.
`
`45.
`
`Such damage both existing on surfaces found within the insureds’ and surrounding
`
`premises as well as in the breathable air circulating within the insureds’ and surrounding premises.
`
`46.
`
`Human beings spread Covid-19 through the simple act of breathing in air that
`
`contains viral droplets. The New York Times recently reported that “[a]n infected person talking
`
`for five minutes in poorly ventilated space can also produce as many viral droplets as one infectious
`
`cough.2
`
`47. Moreover, studies have verified that many individuals remain asymptomatic
`
`despite infection by Covid-19.3
`
`
`2 https://www.nytimes.com/interactive/2020/04/14/science/coronavirus-transmission-cough-6-feet-arul.html
`3 https://www.usnews.com/news/health-news/articles/2020-05-28/studies-detail-rates-of-
`asymptomatic-cases-of-coronavirus (observing that 42% of infected persons in Wuhan, China
`were asymptomatic).
`
`
`
`8
`
`8 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`48.
`
`Consequently, while it is possible to identify certain individuals who are suffering
`
`from obvious symptoms of the coronavirus, absent significant medical testing, it is impossible to
`
`distinguish between infected and non-infected members of the general public.
`
`49.
`
`Civil authority orders began to be issued by New York State and New York City
`
`which required properties to close their doors to the public.
`
`50.
`
`The basis of these orders were all predicated, in part, on the effect of the presence
`
`of Covid-19 within enclosed, highly trafficked locations.
`
`PLAINTIFFS’ INSURANCE POLICY AND CLAIM
`
`51.
`
`The commencement of this lawsuit results from a breach of insurance contract
`
`arising from the failure of Affiliated FM to provide payment to Plaintiffs for their losses resulting
`
`from the global pandemic commonly referred to as coronavirus beginning on or about March 17,
`
`2020, resulting in an economic loss that was first realized on or about April 1, 2020.
`
`52.
`
`On or about June 23, 2019, for good and valuable consideration, Plaintiffs procured
`
`a policy of insurance from Affiliated FM (the “Subject Policy”) bearing policy number KM984.
`
`53.
`
`The Subject Policy provides coverage for, inter alia, physical loss or damages, as
`
`well as losses of income due to business interruption.
`
`54.
`
`55.
`
`The Subject Policy bears effective dates from June 23, 2019 to June 23, 2020.
`
`The Subject Policy was in full force and effect as of June 23, 2019 and for the
`
`period of time immediately thereafter.
`
`56.
`
`The insuring clause of the Subject Policy provides in relevant part:
`
`This Policy covers property, as described in this Policy,
`against ALL RISKS OF PHYSICAL LOSS OR
`DAMAGE, except as hereinafter excluded, while located
`as described in this Policy.
`
`
`
`
`9
`
`9 of 14
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`57.
`
`The Subject Policy further provides coverage for Communicable Disease –
`
`Property Damage, specifically:
`
`If a described location owned, leased or rented by the
`Insured has the actual not suspected presence of
`communicable disease and access to such described
`location is limited, restricted or prohibited by:
`
`a) An order of an authorized governmental agency
`regulating or as a
`result of such presence of
`communicable disease; or
`
`b) A decision of an Officer of the Insured as a result of such
`presence of communicable disease,
`
`
`
`This Policy covers the reasonable and necessary costs
`incurred by the Insured at such described location for
`the:
`
`a) Cleanup, removal and disposal of such presence of
`communicable disease from insured property.
`
`The Subject Policy further provides coverage for losses resulting from interruption
`
`58.
`
`to Plaintiffs’ business, Specifically:
`
`B. BUSINESS INTERRUPTION COVERAGE
`
`(3) Rental Income
`
`The recoverable Rental Income is the actual loss
`sustained by the Insured of the following during the
`Period of Liability:
`
`a) The fair rental value of any portion of the property
`occupied by the Insured;
`
`b) Income reasonably expected from
`the rentals of
`unoccupied or unrented portions of such property;
`
`c) The rental income from the rented portions of such
`property, according to bona fide leases, contracts or
`agreements, in force at the time of the loss.
`
`10
`
`10 of 14
`
`
`
`
`
`
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 656260/2020
`
`RECEIVED NYSCEF: 11/13/2020
`
`59.
`
`The Subject Policy provides Business Interruption Coverage Extensions
`
`specifically:
`
`(2) Civil or Military Authority
`
`This Policy covers the Business Interruption Coverage
`loss incurred by the Insured during the Period of Liability
`if an order of civil or military authority prohibits access
`to a location provided such order is the direct result of
`physical damage if the type insured at a location or within
`five (5) statute miles of it.
`
`(3) Communicable Disease – Business Interruption
`
`
`If a described location owned, leased or rented by the
`Insured has the actual not suspected presence of
`communicable disease and access to such described
`location is limited, restricted or prohibited by:
`
`a) an order of an authorized governmental agency
`regulating such presence of communicable disease;
`
`b) A decision of an Officer of the Insured as a result of such
`presence of communicable disease.
`
`This Policy covers the Business Interruption Coverage
`loss incurred by the Insured during the Period of Liability
`at such described location with such presence of
`communicable disease.
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`(7) Extended Period of Liability
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`The Gross Earnings and Rental Income coverage is
`extended to cover the reduction in sales resulting from:
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`a) The interruption of business as covered by Gross
`Earnings or Rental Income;
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`b) For such additional length of time as would be required
`with the exercise of due diligence and dispatch to restore
`the Insured’s business to the condition that would have
`existed had no loss happened; and
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`c) Commencing with the date on which the liability of the
`Company for loss resulting from interruption of business
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`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656260/2020
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`RECEIVED NYSCEF: 11/13/2020
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`would terminate if this Business Interruption Coverage
`Extension had not been included in this Policy.
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`(8) Ingress/Egress
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`This Policy covers the Business Interruption Coverage
`loss incurred by the Insured due to the necessary
`interruption of the Insured’s business when ingress to or
`egress from a described
`location(s)
`is physically
`prevented, either partially or totally, as a direct result of
`physical loss or damage of the type insured to property of
`the type insured whether or not at a described location.
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`The Subject Policy further provides coverage for Professional Fees, Specifically:
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`60.
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`This Policy covers the reasonable and necessary expenses
`incurred by the Insured of:
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`b) Accountants;
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`e) Other professionals; and
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`f) The Insured’s own employees,
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`For producing and certifying particulars or details to
`determine the amount of loss payable under this Policy
`for which this Company has accepted liability.
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`No exclusion in the Policy applies to preclude coverage for the actual presence of
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`61.
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`Covid-19 at or away from Plaintiffs’ property, the physical loss and damage to the property/or the
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`business interruption losses that have and will continue to result from the physical loss and damage
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`to property.
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`62.
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`On or about April 13, 2020, Affiliated FM issued requests for information
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`consisting of a questionnaire to be filled out by the Plaintiffs, asking for specific verified cases of
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`Covid-19 on its premises.
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`63.
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`On or about August 12, 2020, Plaintiffs submitted a Sworn Statement in Proof of
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`Loss, in connection with a claim for $23,757,712.00 in damages incurred between April 1, 2020
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`through October, 2020, as projected.
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`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656260/2020
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`RECEIVED NYSCEF: 11/13/2020
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`64.
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`Pursuant to Insurance Law § 216.6, Affiliated FM had 15 business days to accept
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`or reject Plaintiffs’ claim.
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`65.
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`Notwithstanding the foregoing, Affiliated FM failed to accept or reject the claim
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`submitted by Plaintiffs in a timely manner.
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`Loss.
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`66.
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`67.
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`To date Plaintiffs have not received a response to its Sworn Statement in Proof of
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`Subsequent to the filing of its Sworn Statement in Proof of Loss, Plaintiffs have
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`attempted to mitigate their damages in connection with the rental income loss suffered. As a result,
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`Plaintiffs current damages for the applicable time period totals $16,386,172.00.
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`AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT
`(Breach of Contract)
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`68.
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`Plaintiffs repeat and reallege paragraphs “1” through “67”, with the same force and
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`effect as if set forth at length herein.
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`FM.
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`69.
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`70.
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`The Subject Policy constituted a binding contract between Plaintiffs and Affiliated
`
`Plaintiffs complied with all of their obligations under the Subject Policy, including
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`through timely notification of a loss and the filing of a Sworn Statement in Proof of Loss.
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`71.
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`To date, Affiliated FM has failed to compensate Plaintiffs for any of their losses,
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`which now totals $16,386,172.00.
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`72.
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`Affiliated FM’s failure to compensate Plaintiffs for their losses constitutes a breach
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`of the Subject Policy.
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`73.
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`As a result of Affiliated FM’s breach of the Subject Policy, Plaintiffs have suffered
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`damages in the amount of $16,386,172.00 together with such additional and subsequent damages
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`as may be incurred and proven at trial.
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`FILED: NEW YORK COUNTY CLERK 11/13/2020 11:37 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656260/2020
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`RECEIVED NYSCEF: 11/13/2020
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`WHEREFORE, Plaintiffs demand judgment against Affiliated FM Insurance Company as
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`follows:
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`(a) On the First Cause of Action, a money judgment against Affiliated FM in the amount of
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`$16,386,172.00, together with such additional and subsequent damages as may be
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`proven at trial;
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`Reasonable fees and costs of this action; and
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`For such other and further relief as to which this Court deems just and proper.
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`(b)
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`(c)
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`Dated: New York, New York
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`November 12, 2020
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`Yours, etc.,
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`WEG AND MYERS, P.C.
`Attorneys for Plaintiffs
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`By:
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`/s/Joshua L. Mallin
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` Dennis D’Antonio, Esq.
` Joshua Mallin, Esq.
` Federal Plaza
` 52 Duane Street, 2nd Floor
` New York, New York 10007
` (212) 227-4210
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