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Sirob Imps., Inc. v. Peerless Ins. Co.

United States District Court, E.D. New York

August 2, 2013

SIROB IMPORTS, INC., Plaintiff,
v.
PEERLESS INSURANCE COMPANY, Defendant

For the Plaintiff: Mitchell J. Winn, Esq., Of Counsel, Law Office of Mitchell J. Winn, Garden City, NY.

For the Defendant: Scott D. Storm, Esq., Of Counsel, Mura & Storm, PLLC, Buffalo, NY.

OPINION

Page 385

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On August 31, 2012, the Plaintiff Sirob Imports, Inc. (the " Plaintiff" ) commenced this action against the Defendant Peerless Insurance Company (the " Defendant" ), seeking a judgment against the Defendant for breach of contract based on a fire insurance policy (" the policy" ). The Plaintiff asserts that the Defendant unlawfully refused to pay for repairs to damaged portions of the Plaintiff's property that resulted from a fire.

Presently before the Court is the Defendant's motion to dismiss the Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)" ), Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)" ) and/or Federal Rule of Civil Procedure 56 (" Rule 56" ). In particular, the Defendant contends that the Court lacks subject matter jurisdiction in this case, as the Plaintiff's claim is not ripe for adjudication. Further, the Defendant asserts that the Plaintiff has breached one of the conditions of the policy and is thus precluded from recovery. Lastly, according to the Defendant, there is no genuine issue of material fact for trial and so summary dismissal is appropriate.

The Plaintiff opposes the Defendant's motion on the ground that the Defendant committed an anticipatory breach. In this regard, according to the Plaintiff, it was thereafter relieved from any further contractual obligations and was entitled to immediately bring suit.

For the reasons set forth below, the Defendant's motion is granted.

I. BACKGROUND

Unless otherwise stated, the following facts are drawn from the Plaintiff's Complaint, its memorandum of law, and the Defendant's Combined Statement of Material Facts and Opponent's Response, and construed in a light most favorable to the Plaintiff

A. The Underlying Facts

The Plaintiff is a corporation organized and existing under the laws of New York. The Defendant is a corporation domiciled, organized and existing under the laws of the State of New Hampshire. The Plaintiff is in the business of importing, storing, and selling ethnic foods to retailers. The Plaintiff's property, located at 21 Gear Avenue, Lindenhurst, New York, is a one-story masonry building, which is used as a warehouse for storing and a machine shop for repackaging. The Plaintiff's property also contains its main offices for sales and marketing.

On or about July 30, 2010, the Plaintiff purchased from the Defendant a commercial business policy insuring the Plaintiff's premises and property. In this regard, the policy insured the Plaintiff's real and personal property and income against all risks of loss, except as specifically excluded, for, among other things, damage resulting from fire and its effects and/or loss of use of the Plaintiff's premises. The policy was in effect from July 30, 2010 through July 30, 2011.

In pertinent part, the policy states that in the event of loss or damage, the Defendant must either " (1) pay the value of lost or damaged property [or] (2) pay the cost of repairing or replacing the lost or damaged property . . . [so long as] the cost . . . does not include the increased cost attributable to enforcement of any ordinance or law regulating the construction, use or repair of any property." (Pl's Mem, pg. 5). The policy further provides that the Defendant will not pay replacement costs " (1) ...


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