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Executive Plaza, LLC v. Erless Insurance Company

March 13, 2012

EXECUTIVE PLAZA, LLC, PLAINTIFF,
v.
ERLESS INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Plaintiff Executive Plaza, LLC ("Plaintiff") commenced this action in March 2011 against Defendant Peerless Insurance Company ("Defendant") in New York State Supreme Court, Nassau County seeking a declaratory judgment that Plaintiff is entitled to insurance coverage under a policy issued to Plaintiff by Defendant and damages in an amount no less than $50,000. On April 4, 2011, Defendant removed the action to this Court on the basis of diversity jurisdiction and filed its Verified Answer to the Complaint. Pending before the Court is Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(c)*fn1 or, in the alternative, for summary judgment under Rule 56. For the following reasons, Defendant's motion is GRANTED.

BACKGROUND*fn2

I. The Insurance Policy

Plaintiff is the sole owner of commercial real property located at 4584 Austin Boulevard, Island Park, New York (the "Property"). (Comp. ¶¶ 3-4, 6.) On or about September 25, 2006, Defendant, "for good and valuable consideration and a premium paid," issued to Plaintiff a general liability and property damage insurance policy (the "Policy") with a $1,000,000 limit. (Compl. ¶¶ 5, 12.)

Upon loss or damage to the Property, the Policy provides for an initial payment of the "actual cash value" of the Property as of the date of the loss. (Def. Ex. B., Policy-Liability Coverage § E.6.a(1).) Defendant is not obligated to pay the actual cost to repair or replace the Property (the "Replacement Cost"):

(i) Until the lost or damaged property is actually repaired or replaced; and

(ii) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.

(Def. Ex. B., Policy-Liability Coverage § E.6.d(1)(b).) This provision will hereinafter be referred to as the "Condition Precedent Provision."

The Policy also provides that:

No one may bring a legal action against us under this insurance unless:

a. There has been full compliance with all of the terms of this insurance; and

b. The action is brought within 2 years after the date on which the direct physical loss or damage occurred.

(Def. Ex. B, Policy-Liability Coverage ยง E.4.) This will be hereinafter referred to as the "Legal ...


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