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54th St. Ltd. Partners, L.P. v. Fid. & Guar. Ins. Co.

Supreme Court of New York, Appellate Division, First Department

June 10, 2003, Decided ; June 10, 2003, Entered

1371

Opinion

 [*67]   [**243]  Order, Supreme Court, New York County (Barbara Kapnick, J.), entered June 28, 2002, which granted defendant's motion for partial summary judgment, dismissing plaintiff's first cause of action to the extent that it sought damages for alleged loss of business due to business interruption beyond December 8, 1997, and denied plaintiff's cross motion for partial summary judgment, unanimously affirmed, without costs.

Contrary to plaintiff's contention, the language of the subject policy clearly and unambiguously provides that for business interruption coverage to be triggered, there must be a "necessary suspension," i.e., a total interruption or cessation [**244]  (see Buxbaum v Aetna Life & Cas. Co., 103 Cal App 4th 434, 444, 126 Cal. Rptr. 2d 682, 688 [2002], review denied 2003 Cal LEXIS 225 [2003]; Keetch v Mutual of Enumclaw Ins. Co., 66 Wn. App. 208, 831 P.2d 784 [1992]; American States Ins. Co. v Creative Walking, Inc., 16 F. Supp. 2d 1062 [1998], [***2]  affd 175 F.3d 1023 [1999]; Royal Indem. Ins. Co. v Mikob Props., Inc., 940 F. Supp. 155 [1996]; Home Indem. Co. v Hyplains Beef, 893 F. Supp. 987, 991-992 [1995], affd 89 F.3d 850 [1996]), of the insured's business operations.

Plaintiff's claim for coverage under the "civil authority" provision of the policy was properly limited to plaintiff's loss of income while access to its premises was denied by an act of civil authority, which occurred only on December 7 and 8, 1997. Thereafter, although vehicular and pedestrian traffic in the area was diverted, access to the restaurant was not denied; the restaurant was accessible to the public, plaintiff's employees and its vendors (see 730 Bienville Partners, Ltd. v Assurance Co. of Am., 2002 WL 31996014, 2002 U.S. Dist LEXIS 18780 [ED La., Sept. 30, 2002], affd 67 Fed. Appx. 248, 2003 U.S. App LEXIS 8570 [5th Cir, Apr. 29, 2003]; St. Paul Mercury Ins. Co. v Magnolia Lady, Inc., 1999 WL 33537191, 1999 U.S. Dist LEXIS 17895 [ND Miss., Nov. 4, 1999]).

 [*68]  The IAS court properly found that issues of fact precluded a grant of summary judgment on plaintiff's claim for extra expenses.

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306 A.D.2d 67 *; 763 N.Y.S.2d 243 **; 2003 N.Y. App. Div. LEXIS 6448 ***

54th Street Limited Partners, L.P., et al., Appellants, v. Fidelity and Guaranty Insurance Company, Respondent.

CORE TERMS

partial summary judgment, business interruption, plaintiff's claim, civil authority, restaurant, coverage