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`NYSCEF DOC. NO. 2
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`INDEX NO. 713847/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`MANGIA RESTAURANT CORP.,
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`Plaintiffs,
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`Index No.
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`VERIFIED COMPLAINT
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`UTICA FIRST INSURANCE COMPANY,
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`-against-
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`Defendants.
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`The Plaintiff, by its attorneys of record, Sacco & Fillas, LLP, as and for its Verified
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`Complaint against the Defendant, respectfully alleges, upon information and belief, as follows:
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`
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`I.
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`PARTIES AND JURISDICTION
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`1.
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`That, at all times hereinafter mentioned, the Plaintiff MANGIA RESTAURANT
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`CORP., dba OVELIA (“OVELIA”) is located at 3401 30th Avenue Astoria, NY 11103.
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`2.
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`That, at all times hereinafter mentioned, the Defendant UTICA FIRST
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`INSURANCE COMPANY (“UTICA”) is located at 5981 Airport Rd., Oriskany, NY 13424.
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`3.
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`Jurisdiction exists in the Supreme Court, County of Queens because Queens
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`County is the county in which the subject premises of this action is located.
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`4.
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`The basis of venue is CPLR § 503(c): Venue Based on Corporation. Plaintiff is a
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`domestic corporation authorized to transact business in the state and as such is deemed a resident
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`of the county in which its principal office is located, that being Queens County.
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`
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`II.
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`NATURE OF THE ACTION
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`5.
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`Plaintiff Mangia Restaurant Corp., owns and operates a full-service bar and
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`restaurant known as OVELIA, also known as “OVEILA” in the Policy. OVELIA’s futures are
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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
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`now threatened by COVID-19 (a.k.a. the “coronavirus” or “SARS-CoV-2”).
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`6.
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`To protect its business in the event that they suddenly had to suspend operations
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`for reasons outside of its control, or in order to prevent further property damage, Plaintiff
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`purchased insurance coverage from UTICA, including special property coverage, as set forth in
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`UTICA’s Business Income (and Extra Expense) Coverage Form (“Coverage Policy Form BP-
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`200”).
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`7.
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`UTICA’s Coverage Policy Form BP-200 provides “Business Income” coverage,
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`which promises to pay for loss due to the necessary suspension of operations following physical
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`loss or damage to property.
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`8.
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`UTICA’s Coverage Policy Form BP-200 also provides “Civil Authority”
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`coverage, which promises to pay for loss caused by the action of a civil authority that prohibits
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`access to the insured premises.
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`9.
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`UTICA’s Coverage Policy Form BP-200 also provides “Extra Expense” coverage,
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`which promises to pay the expense incurred to minimize the suspension of business and to
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`continue operations.
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`10.
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`UTICA’s Coverage Policy Form BP-200, under a section entitled “Duties in the
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`Event of Loss” mandates that the insured “must see that the following are done in the event of
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`loss”. . . [t]ake all reasonable steps to protect the Covered Property from further damage and
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`keep a record of your expenses necessary to protect the Covered Property, for consideration in
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`the settlement of the claim.”
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`11.
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`Plaintiff OVELIA was forced to suspend or reduce business due to COVID-19
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`and the resultant orders issued by civil authorities in New York mandating the suspension of
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`business for on-site services, as well as in order to take necessary steps to prevent further damage
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`and minimize the suspension of business and continue operations.
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`12.
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`Upon information and belief, UTICA has denied Plaintiff’s claim submitted
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`pursuant to its policy, and refused to pay its insured under its Business Income, Civil Authority,
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`Extra Expense, and Sue and Labor coverages for losses suffered due to COVID-19, any
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`executive orders by civil authorities that have required the necessary suspension of business, and
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`any efforts to prevent further property damage or to minimize the suspension of business and
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`continue operations.
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`
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`III. FACTUAL BACKGROUND
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`A. The Coverage Policy Form BP-200
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`13.
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`In return for the payment of a premium, UTICA issued Policy No. BOP 4469347
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`to OVELIA, for a policy period of June 1, 2019 to June 1, 2020. Policy No. BOP 4469347 is
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`attached hereto as Exhibit A. OVELIA has performed all of its obligations under Policy No.
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`BOP 4469347, including the payment of premiums.
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`14.
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`In context to the insurance industry in the majority of the world, property
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`insurance is sold on a specific peril basis. Such policies cover a risk of loss if that risk of loss is
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`specifically listed (e.g., hurricane, earthquake, H1N1, etc.). Most property policies sold in the
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`United States, however, including those sold by UTICA insurance, are all-risk property damage
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`policies. These types of policies cover all risks of loss except for risks that are expressly and
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`specifically excluded. Under the heading “Covered Causes of Loss,” UTICA agreed to pay for
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`direct physical loss “unless the loss is excluded or limited” in the policies.
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`15.
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`In the Coverage Policy Form BP-200, UTICA agreed to pay for its insured’s
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`actual loss of Business Income sustained due to the necessary suspension of its operations during
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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
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`the “period of restoration” caused by direct physical loss or damage. A “slowdown or cessation”
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`of business activities at the Covered Property is a “suspension” under the policy, for which
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`UTICA agreed to pay for loss of Business Income during the “period of restoration” that begins
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`72 hours after the time of direct physical loss or damage.
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`16.
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`“Business Income” means net income (or loss) before tax that Plaintiff would
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`have earned and continuing normal operating expenses incurred, including payroll.
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`17.
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`The presence of virus or disease can constitute physical damage to property, as
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`the insurance industry has recognized since at least 2006. When preparing so-called “virus”
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`exclusions to be placed in some policies, but not others, the insurance industry drafting arm, ISO,
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`circulated a statement to state insurance regulators that included the following:
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`Disease-causing agents may render a product impure (change its quality or substance), or
`enable the spread of disease by their presence on interior building surfaces or the surfaces
`of personal property. When disease-causing viral or bacterial contamination occurs,
`potential claims involve the cost of replacement of property (for example, the milk), cost
`of decontamination (for example, interior building surfaces), and business interruption
`(time element) losses. Although building and personal property could arguably become
`contaminated (often temporarily) by such viruses and bacteria, the nature of the property
`itself would have a bearing on whether there is actual property damage. An allegation of
`property damage may be a point of disagreement in a particular case.
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`18.
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`In the Coverage Policy Form BP-200, UTICA also agreed to pay necessary Extra
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`
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`Expense that its insureds incur during the “period of restoration” that the insureds would not
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`have incurred if there had been no direct physical loss or damage to the Covered Property.
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`19.
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`“Extra Expense” includes expenses to avoid or minimize the suspension of
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`business, continue operations, and to repair or replace property.
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`20.
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`UTICA also agreed to “pay for the actual loss of Business Income” that Plaintiff
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`sustains “and any Extra Expense caused by action of civil authority that prohibits access to” the
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`Covered Property when a Covered Cause of Loss causes damage to property near the Covered
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`Property, the civil authority prohibits access to property immediately surrounding the damaged
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`property, the Covered Property is within the prohibited area, and the civil authority action is
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`taken “in response to dangerous physical conditions.”
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`21.
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`UTICA’s Coverage Policy Form BP-200, under a section entitled “Duties in the
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`Event of Loss” mandates that UTICA’s insured “must see that the following are done in the
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`event of loss. . . [t]ake all reasonable steps to protect the Covered Property from further damage
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`and keep a record of your expenses necessary to protect the Covered Property, for consideration
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`in the settlement of the claim.” This is commonly referred to as “Sue and Labor” coverage.
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`22.
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`Losses caused by COVID-19 and the related orders issued by local, state, and
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`federal authorities triggered the Business Income, Extra Expense, Civil Authority, and Sue and
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`Labor provisions of the UTICA policy.
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`
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`B. The Covered Cause of Loss
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`23.
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`In December 2019, a novel (new) coronavirus known as SARS-CoV-2 was first
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`detected in Wuhan, Hubei Province, China, and which caused an outbreak of a disease now
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`known as COVID-19.
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`24.
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`The coronavirus causing COVID-19 is thought to spread mainly from person to
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`person, primarily through respiratory droplets produced when an infected person coughs or
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`sneezes.1
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`25.
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`The coronavirus spread globally, and on January 30, 2020, the World Health
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`Organization designated the COVID-19 outbreak as a Public Health Emergency of International
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`1 See generally CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/faq.html
`(last visited June 1, 2020).
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`Concern. 2
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`26. On January 31, 2020, United States Health and Human Services Secretary Alex
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`M. Azar II declared a public health emergency for the entire United States to aid the nation’s
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`healthcare community in responding to COVID-19.3
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`27.
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` To date, there have been more than 3 million confirmed cases of COVID-19 in
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`the United States, including more than 399,000 in New York State and more than 160,000 in
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`New York City. As a result of COVID-19, there have been more than 133,000 deaths in the
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`United States, including more than 22,000 in New York State and more than 17,000 in New
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`York City.4
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`28.
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` In New York, on March 7, 2020, Governor Andrew Cuomo declared a state
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`disaster emergency for the entire state in effect until September 7, 2020.5
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`29.
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`On March 12, 2020, Governor Cuomo signed Executive Order 202.1, which,
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`among other things, ordered that any large gathering or event for which attendance is anticipated
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`to be in excess of five hundred people be cancelled or postponed for a minimum of thirty days.
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`Executive Order 202.1 also required that any place of business or public accommodation, and
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`any gathering or event for which attendance is anticipated to be fewer than five hundred people,
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`operate at no greater than 50% occupancy, and no greater than 50% of seating capacity, for thirty
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`2 https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the- international-health-
`regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel- coronavirus-(2019-ncov)
`3 Press Release, Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus
`(Jan. 31, 2020), available at https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-
`emergency- us-2019-novel-coronavirus.html.
`4 See Johns Hopkins Coronavirus Resource Center, available at https://coronavirus.jhu.edu/map.html (last visited
`June 1, 2020); N.Y. Dep’t of Health COVID- 19 Tracker, available at
`https://covid19tracker.health.ny.gov/views/NYS-COVID19- Tracker/NYSDOHCOVID-19Tracker-
`Map?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last checked April 28, 2020); New York City Dep’t of Health
`COVID-19: Data, available at https://www1.nyc.gov/site/doh/covid/covid-19-data.page (last visited June 1, 2020).
`5 https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york.
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`days effective on Friday, March 13, 2020.6
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`30.
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`On March 16, 2020, Governor Cuomo signed Executive Order 202.3, which
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`amended Executive Order 202.1 to require that, until further notice, any large gathering or event
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`at any location in New York State be cancelled or postponed if more than fifty persons are
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`expected in attendance. Executive Order 202.3 also ordered that any restaurant or bar in the state
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`Executive Order No. 202, 202.1-48: Continuing Temporary Suspension and Modification of
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`Laws Relating to the Disaster Emergency, March 12, 2020. of New York cease serving patrons
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`food or beverage on-premises effective at 8 p.m. on March 16, 2020 until further notice.7
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`31.
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`On March 18, 2020, Governor Cuomo signed Executive Order 202.6, which
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`required, among other things, that any non-essential business reduce its in-person workforce at
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`any work locations by 50% no later than March 20, 2020 at 8 p.m.8
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`32.
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`On March 19, 2020, Governor Cuomo signed Executive Order 202.7, which,
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`among other things, amended Executive Order 202.6 to require that any non-essential business
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`reduce its in-person workforce at any work locations by 75% no later than March 21, 2020 at 8
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`p.m.9
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`33.
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`On March 20, 2020, Governor Cuomo signed Executive Order No. 202.8, which
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`ordered, among other things, that effective at 8 p.m. on Sunday, March 22, 2020, all non-
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`essential businesses statewide would be closed.10
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`34.
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`For the purposes of the Executive Orders 202.6 and subsequent orders, non-
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`6 https://www.governor.ny.gov/news/no-2021-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
`7 https://www.governor.ny.gov/news/no-2023-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
`8 https://www.governor.ny.gov/news/no-2026-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
`9 https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
`10 https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
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`essential businesses include, among other things, “Any large gathering or event venues,
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`including but not limited to establishments that host concerts, conferences, or other in-person
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`performances or presentations in front of an in-person audience” and “Any dine-in or on-premise
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`restaurant or bar service, excluding take-out or delivery for off-premise consumption.”11
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`35.
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`On March 23, 2020, Governor Cuomo signed Executive Order No. 202.10, which
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`ordered that “Non-essential gatherings of individuals of any size for any reason (e.g. parties,
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`celebrations or other social events) are canceled or postponed at this time.”12
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`
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`C. The Impact of COVID-19 and the Closure Orders
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`36.
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`The presence of COVID-19 caused direct physical loss of or damage to the
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`covered property under the Plaintiffs’ policies, and the policies of the other Class members, by
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`denying use of and damaging the covered property, and by causing a necessary suspension of
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`operations during a period of restoration.
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`37.
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`The Closure Orders prohibited access to Plaintiff’s Covered Property, and the area
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`immediately surrounding Covered Property, in response to dangerous physical conditions
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`resulting from a Covered Cause of Loss.
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`38.
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`As a result of the presence of COVID-19 and the Closure Orders, Plaintiff lost
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`Business Income and incurred Extra Expense.
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`D. Covered Losses Under the Policy
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`39.
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`Defendants issued Plaintiff’s Policy No. BOP 4469347 for the policy period
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`between December 16, 2019 to December 16, 2020 (the “Policy”).
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`11 See Empire State Development, Guidance for Whether a Business Enterprise Is Subject to a Workforce Reduction
`Under Recent Executive Orders (last updated April 24, 2020), available at https://esd.ny.gov/guidance-executive-
`order-2026
`12 https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and- modification-laws-relating-
`disaster-emergency
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`40.
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`Parts of the Policy are standardized forms that are used by UTICA for all insureds
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`having applicable coverage.
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`41.
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`The Policy is an all-risk policy, insofar as it provides that covered causes of loss
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`under the policy means direct physical loss or direct physical damage unless the loss is
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`specifically excluded or limited in the Policy.
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`42.
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`Among the coverages provided by the Policy, which is currently in full effect, is
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`business interruption insurance, which, generally, would indemnify Plaintiff for lost income and
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`profits in the event that its business was shut down.
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`43.
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`Specifically, Plaintiff’s Coverage Policy Form BP-200, Form ed. 1-87, provides
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`coverage for loss of Business Income as follows:
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`We provide the Earnings and Extra Expense Coverage shown below
`when your business is necessarily interrupted by loss or damage to
`real or personal property caused by a peril covered during the policy
`period. This coverage applies only when the loss or damage to real
`or personal property is at the described premises or in the open
`within 100 feet thereof.
`UTICA Policy, Coverage Policy Form BP-200 § ed. 1-87.
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`44.
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`Under this coverage in the Policy, “Business Income” is defined as:
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`
`
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`Income Loss means financial loss you sustain, as determined in accordance with the
`provisions of Coverage Agreement F(2) or Coverage Agreement H.
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`
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`UTICA Policy, Coverage Policy Form BP-200 § GG.
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`45.
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`The Policy also provides Civil Authority coverage as follows:
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`
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`
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`“We” extend “your” coverage to include loss while access to the described premises is
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`specifically denied by an order of civil authority. This order must be a result of damage to
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`property other than at the described premises and caused by a covered peril.
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`This extension of coverage:
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`a. For Earnings, starts 72 hours after the time the order is issued and will apply for a
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`period of up to three consecutive weeks after the order is issued; and
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`b. For Extra Expense, starts immediately after the order is issued, and will apply for:
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`i. A period of up to three consecutive weeks after the order is issued; or
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`ii. until “your” Earnings coverage ends;
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`whichever is later.
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`
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`46.
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`Plaintiff has suffered a direct physical loss of and damage to their property as a
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`result of COVID-19 and the orders of civil authorities because, among other things, they have
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`been unable to use their property for its intended purpose, and they have been denied access to
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`their property, causing a suspension of business operations on the premises and the function of
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`their property to be nearly eliminated or destroyed.
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`47.
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`Beginning in March 2020, Plaintiff was forced to suspend business operations as
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`a result of COVID-19 and the related actions of civil authorities. This suspension, which is
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`ongoing, has caused Plaintiff to suffer significant losses and incur significant expenses.
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`48.
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`Plaintiff provided notice of its losses to Defendants consistent with the terms and
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`procedures of the Policy.
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`49.
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`Notwithstanding the foregoing, by way of letter dated May 11, 2020, UTICA
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`denied Plaintiff’s claim for business interruption, extra expense, and civil authority losses under
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`the Policy because UTICA contends that Plaintiff’s Policy excludes said losses. Exhibit B.
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`
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`50.
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`IV. CLAIMS FOR RELIEF
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`FIRST CAUSE OF ACTION
`BREACH OF CONTRACT – BUSINESS INCOME COVERAGE
`Plaintiff repeats and realleges Paragraphs 1-50 as if fully set forth herein.
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`51.
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`Plaintiff’s UTICA policy, is a contract under which UTICA were paid premiums
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`in exchange for their promise to pay Plaintiff’s losses for claims covered by the policy.
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`52.
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`In the Coverage Policy Form BP-200, UTICA agreed to pay for its insured’s
`
`actual loss of Business Income sustained due to the necessary suspension of its operations during
`
`the “period of restoration.”
`
`53.
`
`A “slowdown or cessation” of business activities at the Covered Property is a
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`“suspension” under the policy, for which UTICA agreed to pay for loss of Business Income
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`during the “period of restoration” that begins within 72 hours after the time of direct physical
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`loss or damage.
`
`54.
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`“Business Income” means net income (or loss) before tax that Plaintiff would
`
`have earned “if no physical loss or damage had occurred” and continuing normal operating
`
`expenses incurred. COVID-19 caused direct physical loss and damage to Plaintiff’s Covered
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`Properties, requiring suspension of operations at the Covered Properties. Losses caused by
`
`COVID-19 thus triggered the Business Income provision of Plaintiff’s policy.
`
`55.
`
`Plaintiff has complied with all applicable provisions of its policy and/or those
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`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
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`UTICA has abrogated its insurance coverage obligations pursuant to the policy’s clear and
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`unambiguous terms.
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`56.
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`By denying coverage for any Business Income losses incurred by Plaintiff in
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`connection with the COVID-19 pandemic, UTICA has breached its coverage obligations under
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`the policy.
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`57.
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`As a result of UTICA’s breach of the policy, Plaintiff has sustained substantial
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`damages for which UTICA is liable, in an amount to be established at trial.
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`
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`herein.
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`SECOND CAUSE OF ACTION
`BREACH OF CONTRACT – CIVIL AUTHORITY COVERAGE
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`58.
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`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
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`59.
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`Plaintiff’s UTICA policy is a contract under which UTICA was paid premiums in
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`exchange for its promise to pay Plaintiff’s losses for claims covered by the policy.
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`60.
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`UTICA agreed to “pay for the actual loss of Business Income” that its insured
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`sustains “and any Extra Expense caused by action of civil authority that prohibits access to” the
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`Covered Property when a Covered Cause of Loss causes damage to property near the Covered
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`Property, the civil authority prohibits access to property immediately surrounding the damaged
`
`property, the Covered Property is within the prohibited area, and the civil authority action is
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`taken “in response to dangerous physical conditions.”
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`61.
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`The Closure Orders triggered the Civil Authority provision under Plaintiff’s Civil
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`Authority’s UTICA insurance policy.
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`62.
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`Plaintiff has complied with all applicable provisions of the policy, and/or those
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`provisions have been waived by UTICA, or is UTICA estopped from asserting them, and yet
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`UTICA has abrogated its insurance coverage obligations pursuant to the Policy’s clear and
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`unambiguous terms.
`
`
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`63.
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`By denying coverage for any business losses incurred by Plaintiff in connection
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`with the Closure Orders and the COVID-19 pandemic, UTICA has breached its coverage
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`obligations under the policy.
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`64.
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`As a result of UTICA’s breach, Plaintiff has sustained substantial damages for
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`which UTICA is liable, in an amount to be established at trial.
`
`13
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`12 of 18
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`

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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 713847/2020
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`RECEIVED NYSCEF: 08/24/2020
`
`THIRD CAUSE OF ACTION
`BREACH OF CONTRACT – EXTRA EXPENSE COVERAGE
`
`65.
`
`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
`
`
`
`herein.
`
`66.
`
`Plaintiff’s UTICA insurance policy is a contract under which UTICA was paid
`
`premiums in exchange for its promise to pay Plaintiff’s Extra Expense losses for claims covered
`
`by the policy.
`
`67.
`
`In the Coverage Policy Form BP-200, UTICA also agreed to pay necessary Extra
`
`Expense that Plaintiff incurs during the “period of restoration” that the insured would not have
`
`incurred if there had been no direct physical loss or damage to the Covered Property.
`
`68.
`
`“Extra Expense” includes expenses to avoid or minimize the suspension of
`
`business, continue operations, and to repair or replace property.
`
`69.
`
`Due to COVID-19 and the Closure Orders Plaintiff incurred Extra Expense at
`
`Covered Property
`
`70.
`
`Plaintiff has complied with all applicable provisions of the policy and/or those
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the Policy’s clear and
`
`unambiguous terms.
`
`
`
`71.
`
`By denying coverage for any business losses incurred by Plaintiff in connection
`
`with the Closure Orders and the COVID-19 pandemic, UTICA has breached its coverage
`
`obligations under the policy.
`
`72.
`
`As a result of UTICA’s breach, Plaintiff has sustained substantial damages for
`
`which UTICA is liable, in an amount to be established at trial.
`
`14
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`13 of 18
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`

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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 713847/2020
`
`RECEIVED NYSCEF: 08/24/2020
`
`FOURTH CAUSE OF ACTION
`BREACH OF CONTRACT – SUE AND LABOR COVERAGE
`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
`
`73.
`
`herein.
`
`74.
`
`Plaintiff’s UTICA policy is a contract under which UTICA was paid premiums in
`
`exchange for its promise to pay Plaintiff’s losses for claims covered by the policy.
`
`75.
`
`In the Coverage Policy Form BP-200, UTICA agreed to give due consideration in
`
`settlement of a claim to expenses incurred in taking all reasonable steps to protect Covered
`
`Property from further damage.
`
`76.
`
`In complying with the Closure Orders and otherwise suspending or limiting
`
`operations, Plaintiff incurred expenses in connection with reasonable steps to protect Covered
`
`Property.
`
`77.
`
`Plaintiff has complied with all applicable provisions of the policy and/or those
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the policy’s clear and
`
`unambiguous terms.
`
`78.
`
`By denying coverage for any Sue and Labor expenses incurred by Plaintiff in
`
`connection with the Closure Orders and the COVID-19 pandemic, UTICA has breached its
`
`coverage obligations under the policy.
`
`79.
`
`As a result of UTICA’s breach of the policy, Plaintiff has sustained substantial
`
`damages for which UTICA is liable, in an amount to be established at trial.
`
`FIFTH CAUSE OF ACTION
`DECLARATORY JUDGMENT – BUSINESS INCOME COVERAGE
`Plaintiff repeats and realleges Paragraphs 1-50 as if fully set forth herein.
`80.
`
`81.
`
`Plaintiff’s UTICA policy is a contract under which UTICA was paid premiums in
`
`15
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`14 of 18
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`

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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 713847/2020
`
`RECEIVED NYSCEF: 08/24/2020
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`exchange for its promise to pay Plaintiff’s losses for claims covered by the policy.
`
`82.
`
`Plaintiff has complied with all applicable provisions of the policies and/or those
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the policy’s clear and
`
`unambiguous terms and has wrongfully and illegally refused to provide coverage to which
`
`Plaintiff is entitled.
`
`83.
`
`Therefore, Plaintiff seeks a declaratory judgment from this Court declaring the
`
`following:
`
`i. Plaintiff’s Income losses incurred in connection with the Closure Orders and the
`
`necessary interruption of their businesses stemming from the COVID-19 pandemic
`
`are insured losses under its policy; and
`
`ii. UTICA is obligated to pay Plaintiff for the full amount of the Business Income
`
`losses incurred and to be incurred in connection with the Closure Orders during the
`
`period of restoration and the necessary interruption of their business stemming from
`
`the COVID-19 pandemic.
`
`SIXTH CAUSE OF ACTION
`DECLARATORY JUDGMENT – CIVIL AUTHORITY COVERAGE
`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
`84.
`
`herein.
`
`85.
`
`Plaintiffs bring this Count individually and on behalf of the other members of the
`
`Civil Authority Declaratory Judgment Class.
`
`86.
`
`Plaintiff’s UTICA insurance policy is a contract under which UTICA was paid
`
`premiums in exchange for its promise to pay Plaintiff’s losses for claims covered by the policy.
`
`87.
`
`Plaintiff has complied with all applicable provisions of the policy and/or those
`
`16
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`15 of 18
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`

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`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 713847/2020
`
`RECEIVED NYSCEF: 08/24/2020
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the policy’s clear and
`
`unambiguous terms and has wrongfully and illegally refused to provide coverage to which
`
`Plaintiff is entitled.
`
`
`
`SEVENTH CAUSE OF ACTION
`DECLARATORY JUDGMENT – EXTRA EXPENSE COVERAGE
`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
`
`88.
`
`herein.
`
`89.
`
`Plaintiff’s UTICA insurance policy is a contract under which UTICA was paid
`
`premiums in exchange for its promise to pay Plaintiff’s losses for claims covered by the policy.
`
`90.
`
`Plaintiff has complied with all applicable provisions of the policy and/or those
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the policies clear and
`
`unambiguous terms and has wrongfully and illegally refused to provide coverage to which
`
`Plaintiff is entitled.
`
`91.
`
`Plaintiff seeks a declaratory judgment from this Court declaring the following:
`
`i. Plaintiff’s Extra Expense losses incurred in connection with the Closure Orders
`
`and the necessary interruption of their businesses stemming from the COVID-19
`
`pandemic are insured losses under its policy; and
`
`ii. UTICA is obligated to pay Plaintiff for the full amount of the Extra Expense
`
`losses incurred and to be incurred in connection with the covered losses related to the
`
`Closure.
`
`
`
`
`17
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`16 of 18
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`

`

`FILED: QUEENS COUNTY CLERK 08/24/2020 03:05 PM
`NYSCEF DOC. NO. 2
`
`INDEX NO. 713847/2020
`
`RECEIVED NYSCEF: 08/24/2020
`
`EIGHTH CAUSE OF ACTION
`DECLARATORY JUDGMENT – SUE AND LABOR COVERAGE
`Plaintiff OVELIA repeats and realleges Paragraphs 1-50 as if fully set forth
`
`92.
`
`herein.
`
`93.
`
`Plaintiff’s UTICA insurance policy is a contract under which UTICA was paid
`
`premiums in exchange for its promise to pay Plaintiff’s reasonably incurred expenses to protect
`
`Covered Property.
`
`94.
`
`Plaintiff has complied with all applicable provisions of the policy and/or those
`
`provisions have been waived by UTICA, or UTICA is estopped from asserting them, and yet
`
`UTICA has abrogated its insurance coverage obligations pursuant to the policy’s clear and
`
`unambiguous terms and has wrongfully and illegally refused to provide coverage to which
`
`Plaintiff is entitled.
`
`
`
`V. REQUEST FOR RELIEF
`
` WHEREFORE, Plaintiff, respectfully requests that the Court enter judgment in their favor
`
`and against Defendants as follows:
`
`a. Entering judgment on Causes of Action I-IV in favor of Plaintiff OVELIA and awarding
`
`damages for breach of contract in an amount to be determined at trial;
`
`c. Entering declaratory judgments on Causes of Action V-VIII in favor of Plaintiff as follows;
`
`i. Business Income, Civil Authority, Extra Expense, and Sue and Labor losses
`
`incurred in connection with the Closure Orders and the necessary interruption of
`
`Plaintiff’s business stemming from the COVID-19 pandemic are insured losses under
`
`its policy; and
`
`ii. UTICA i