Opinion
713847/ 2020
03-30-2021
MANGIA RESTAURANT CORP., Plaintiff(s), v. UTICA FIRST INSURANCE COMPANY, Defendant(s).
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
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 Associates, L.P. , 148 A.D.3d 953, 954, 50 N.Y.S.3d 413 [2017] ). Such evidence would have to undeniably support movant's claims and/or utterly refute plaintiffs’ factual allegations (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ; Stewart v. Berger , 192 A.D.3d 940, 140 N.Y.S.3d 714 [2021] ; Clarke v. Laidlaw Tr., Inc. , 125 A.D.3d 920, 5 N.Y.S.3d 138 [2015] ; Comprehensive Mental Assessment & Medical Care, P.C. v. Gusrae Kaplan Nusbaum, PLLC , 130 A.D.3d 670, 13 N.Y.S.3d 485 [2015] ).
" ‘The fundamental, neutral precept of contractual interpretation is that agreements are construed in accord with the parties’ intent’ ... (and) [t]he best evidence of the parties’ intent is their own writing’. ... A written agreement that is complete, clear, and unambiguous on its face is to be enforced according to the plain meaning of its terms" ( Goetz v. Trinidad , 168 A.D.3d 688, 689, 91 N.Y.S.3d 513 [2019], quoting Greenfield v. Philles Records , 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002] ; see MHR Capital Partners, LP v. Presstek, Inc. , 12 N.Y.3d 640, 645, 884 N.Y.S.2d 211, 912 N.E.2d 43 [2009] ; Silberman v. Farkas , 179 A.D.3d 1075, 114 N.Y.S.3d 407 [2020] ; Osborne v. Williamson Law Book Co. , 175 A.D.3d 1311, 109 N.Y.S.3d 97 [2020] ). "Where the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole" ( Tomhannock, LLC v. Roustabout Resources, LLC , 33 N.Y.3d 1080, 1082, 104 N.Y.S.3d 596, 128 N.E.3d 674 [2019], quoting Ellington v. EMI Music, Inc. , 24 N.Y.3d 239, 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014] ; see Long Is. Med. & Gastroenterology Assoc., P.C. v. Mocha Realty Assoc., LLC , 191 A.D.3d 857, 143 N.Y.S.3d 56 [2021] ; World Ambulette Transp., Inc. v. Lee , 161 A.D.3d 1028, 78 N.Y.S.3d 137 [2018] ).
"Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide.... A contract is unambiguous if the language it uses has ‘a definite and precise meaning unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ " ( Greenfield v. Philles Records , 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166, quoting Breed v. Insurance Co. of N. Am. , 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 [1976] ; see Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co. , 31 N.Y.3d 131, 74 N.Y.S.3d 162, 97 N.E.3d 711 [2018] ; CDC Dev. Props., Inc. v. American Ind. Paper Mills Supply Co., Inc. , 184 A.D.3d 623, 125 N.Y.S.3d 722 [2020] ). The relevant portions of this insurance policy are clear and unambiguous in their wording.
The terms of the instant insurance policy state, in pertinent part, that it covers a "loss of income" when "business is necessarily interrupted by loss or damage to real or personal property caused by a peril covered during the policy period." Said policy contains two exclusions in this regard: (1) "We do not cover loss caused by order of any civil authority," and (2) "We do not pay for loss, cost, or expense caused by, resulting from, or relating to any virus, bacterium, or other microorganism that causes disease, illness, or other physical distress or that is capable of causing disease, illness, or physical distress." Further, the policy provides that "This exclusion applies to, but is not limited to, any loss, cost, or expense as a result of any denial of access to property because of any virus, bacterium, or other microorganism." Such unequivocal exclusions apply to any contamination by any virus, and any denial of access to property due to any virus. Plaintiff's "mere assertion that the contract language means something different to (it) ... is not enough to raise a triable issue of fact" ( Cohen & Slamowitz, LLP v. Zurich Am. Ins. Co., 168 A.D.3d 905, 906, 92 N.Y.S.3d 365 [2019] ). This Court will not apply to this insurance policy a "strain[ed reading] to find an ambiguity which otherwise might not be thought to exist" ( Uribe v. Merchants Bank of New York , 91 N.Y.2d 336, 341, 670 N.Y.S.2d 393, 693 N.E.2d 740 [1998], quoting Loblaw, Inc. v. Employers’ Liab. Assur. Corp. , 57 N.Y.2d 872, 877, 456 N.Y.S.2d 40, 442 N.E.2d 438 [1982] ).
Prior to the advent of the COVID-19 virus, New York case law held that there could be no recovery for lost business income/extra expense" absent a showing of any "direct physical loss or damage," stating that "the language in the policy clearly and unambiguously provides coverage only where the insured's property suffers direct physical damage" ( Roundabout Theatre Co., Inc. v. Continental Cas. Co. , 302 A.D.2d 1, 6, 751 N.Y.S.2d 4 [2002] ; see Newman Myers Kreines Gross Harris, P.C. v. Great Northern Ins. Co. , 17 F.Supp.3d 323 [S.D.N.Y.2014] - plain meaning of phrase "direct physical loss of or damage to" connotes a negative alteration in the tangible condition of property [at 331]). Such policy terms ordinarily connote actual, demonstrable, physical harm of some form to the premises itself, rather than damages merely consequential to a forced closure or business interruption, as claimed herein. A mere loss of use was insufficient to trigger coverage under such policy terms (see United Airlines, Inc. v. Ins. Co. of State of Pa. , 385 F.Supp.2d 343 [S.D.N.Y.2005] ; Phila. Parking Auth. v. Fed. Ins. Co. , 385 F.Supp.2d 280 [S.D.N.Y.2005] ).
The policyholder bears the initial burden of showing that the subject insurance contract covers the alleged loss (see Roundabout Theatre Co., Inc. v. Continental Cas. Co. , 302 A.D.2d 1, 751 N.Y.S.2d 4 ; Tappo of Buffalo, LLC v. Erie Ins. Co. , 2020 WL 7867553, U.S.D.C., W.D.NY, December 29, 2020, No. 20-cv-754v [HKS] ). Plaintiff has failed to do so herein.
Since the appearance of the Coronavirus pandemic, courts have continued to posit that actual physical damage is required before business interruption insurance coverage is paid (see Sharde Harvey, DDS, PLLC v. Sentinel Ins. Co. , 2021 WL 1034259, U.S.D.C., S.D.N.Y., March 18, 2021.No. 20-cv-3350 [PGG RWL] ; Food for Thought Caterers Corp. v. Sentinel Ins. Co. , 2021 WL 860345, U.S.D.C., S.D.N.Y., March 6, 2021, No. 20-cv-3418 [JKG] ; Alexandre B. Demoura, M.D. v. Continental Casualty Co. , 2021 WL 848840, U.S.D.C., E.D.N.Y., March 5, 2021, No. 20-cv-2912 [NGG SIL] ; 10012 Holdings, Inc. d/b/a Guy Hepner v. Sentinel Ins. Co., Ltd. , 2020 WL 7360252, U.S.D.C., S.D.N.Y., December 15, 2020, No. 20-cv-4471 [LGS] ).
Plaintiff would have had to show that the claimed "business interruption" was the result of "a loss or damage to real or personal property caused by a peril covered" ( Satispie, LLC v. Travelers Prop. Cas. Ins. Co. of Am. , 448 F.Supp.3d 287, 293 [W.D.N.Y.2020] ; Roundabout Theatre Co., Inc. v. Continental Cas. Co. , 302 A.D.2d 1, 751 N.Y.S.2d 4 ). Plaintiff failed to demonstrate that the alleged "damage" was a result of a covered peril, because it wasn't. The policy contained a specific "virus exclusion," and both sides agree that COVID-19 is a "virus." Additionally, plaintiff's claim that it suffered "actual damage" because the virus germs settled on the fixtures and food at the restaurant, and they were forced to "clean surfaces" of virus contaminants, is without merit. Contrary to plaintiff's contention, the "direct physical damage or loss" criteria of the subject policy was not triggered by such actions.
Additionally, plaintiff's claim that COVID-19, a harmful and unwanted substance, entered its premises and made it impossible to use, was not borne out by any proof that COVID-19 was ever found on the premises, so there exists no reason to assert that the virus contaminated, or "damaged," anything at the property, let alone made it uninhabitable. Therefore, any claim for "loss" of the insured property is unavailable to plaintiff (see Michael Cetta, Inc. v. Admiral Indem. Co. , 2020 WL 7321405, U.S.D.C., S.D.N.Y., December 11, 2020, No. 20-cv-4612 [JPC] ). Even had there been proof that the virus "physically attached to the property," as plaintiff alleged, that would not have constituted the direct, physical loss or damage required to trigger the policy coverage, because such presence can be eliminated by "routine cleaning and disinfecting" ( Tappo of Buffalo, LLC v. Erie Ins. Co. , 2020 WL 7867553, at *4 - "this Court agrees with the overwhelming majority of courts to have considered this issue that plaintiff cannot plausibly allege that this impact is the result of direct physical loss or damage to covered property as required to establish coverage under their insurance policies"). In fact, even if the virus had been present on plaintiff's property, any business income losses were caused by the precautionary measures taken by the State to prevent the spread of COVID-19, rather than by direct physical loss of, or damage to, the property (see Tappo , ibid ; Sharde Harvey, DDS, PLLC v. Sentinel Ins. Co. , 2021 WL 1034259 ).
Plaintiff's claim that the actions of a "civil authority ... prohibited its access to the premises," is, also, meritless. A limitation of use is not the equivalent of a "prohibition of access." Plaintiff could have continued to operate its restaurant under a "limitation." Therefore, an essential element of the civil authorization coverage has not been demonstrated (see Michael Cetta, Inc. v. Admiral Indem. Co. , 2020 WL 7321405 ). Also, plaintiff's contention that the risk of Covid-19 being physically present in neighboring properties "caused" the State authorities to prohibit access to plaintiff's property, is without merit, as plaintiff's complaint does not allege that the potential presence of Covid-19 in neighboring properties directly resulted in the closure of plaintiff's property, but, instead, alleges that the "closure" was the direct result of the risk of Covid-19 at plaintiff's property (see 10012 Holdings, Inc. d/b/a Guy Hepner v. Sentinel Ins. Co., Ltd. , 2020 WL 7360252 ).
"As a result of COVID-19 closure orders throughout the country, many businesses have brought lawsuits claiming entitlement to coverage under provisions materially similar to those at issue in Roundabout Theatre , Newman Meyers , and here. And nearly every court to address the issue has concluded that loss of use of premises due to a governmental closure order does not trigger business income coverage premises on physical loss of property" ( Michael Cetta, Inc. v. Admiral Indem. Co. , 2020 WL 7321405, at *6-7 ).
Defendant has conclusively established defenses to plaintiff's claims as a matter of law (see Greenberg v. Spitzer , 155 A.D.3d 27, 62 N.Y.S.3d 372 [2017] ; Shofel v. DaGrossa , 133 A.D.3d 649, 19 N.Y.S.3d 427 [2015] ). Such evidence, undeniably supports movant's claims and utterly refutes plaintiff's factual allegations (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Arnell Construction Co. v. New York City School Construction Auth. , 177 A.D.3d 595, 112 N.Y.S.3d 169 [2d Dept. 2019] ; U.S. Bank National Assoc. v. Hunte , 176 A.D.3d 894, 110 N.Y.S.3d 53 [2019] ). Plaintiff's opposition, devoid of any case law decided after the appearance of COVID-19 on the World stage, fails to raise an issue of fact in rebuttal. "The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations" ( James v. Alderton Dock Yards , 256 N.Y. 298, 305, 176 N.E. 401 [1931] ; see 159 MP Corp. v. Redbridge Bedford, LLC , 160 A.D.3d 176, 71 N.Y.S.3d 87 [2018] ). An action for declaratory judgment may be utilized only for a justiciable controversy, i.e. , where the court has jurisdiction over the subject matter of the action, and the dispute is genuine, rather than academic, between parties with a stake in the outcome (see Matter of Hargraves v. City of Rye Zoning Bd. of Appeals , 162 A.D.3d 1072, 80 N.Y.S.3d 337 [2018] ; DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC , 102 A.D.3d 725, 958 N.Y.S.2d 417 [2013] ; Chanos v. MADAC, LLC , 74 A.D.3d 1007, 903 N.Y.S.2d 506 [2010] ). A declaratory judgment action, brought by the disclaiming insurer, would be the appropriate vehicle to test the insurer's right to disclaim coverage or deny liability (see McDonald v. Shore , 100 A.D.3d 602, 603, 953 N.Y.S.2d 650 [2012] ; see Iacobellis v. A-1 Tool Rental, Inc. , 65 A.D.3d 1015, 885 N.Y.S.2d 293 [2d Dept. 2009] ; Monaghan v. Meade , 91 A.D.2d 1014, 457 N.Y.S.2d 886 [1983] ). In the case at bar, the movant has demonstrated "the absence of all factual issues so that a determination as to the rights of the parties could be determined as a matter of law" ( Guthart v. Nassau County , 178 A.D.3d 777, 778, 111 N.Y.S.3d 886 [2019] ).
Plaintiff's remaining contentions and arguments are either without merit or need not be addressed in light of the foregoing determinations.
Accordingly, it is
ORDERED AND ADJUDGED that defendant's motion, seeking declaratory relief, pursuant to CPLR § 3001, is granted and it is further
ORDERED AND ADJUDGED that the defendant, Utica First Insurance Company has no duty to provide insurance coverage to plaintiff, for its COVID-19 virus related loss as set forth in the Summons and Complaint herein.