Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP v. Valley Forge Ins. Co.

MEMORANDUM AND ORDER Plaintiff Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone LLP (“Abrams Fensterman”)¹ brings the instant action against Defendants Valley Forge Insurance Company (“Valley Forge”) and CNA Financial Corporation (“CNAF”) seeking a declaratory judgment that: (1) the presence of the COVID-19 virus in its offices constitutes physical damage under its insurance coverage policy; (2) New York Governor Cuomo’s March 22, 2020 Executive Order constitutes an act of civil authority under its insurance coverage policy; and (3) Plaintiff is entitled to reimbursement (up to its policy limit) and any further relief the Court deems just. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint in its entirety. BACKGROUND² Plaintiff is a full-service commercial law firm with offices in Brooklyn, Long Island, White Plains, and Rochester, New York. (Compl. 8, ECF No. 1-3.) In March 2020, New York State began to experience the effects of the COVID-19 pandemic. (Id. 16.) And on March 22, 2020, New York Governor Cuomo issued an Executive Order closing all non-essential businesses (the “Executive Order”). (Id. 20.) The Executive Order specifically provided: All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the inperson workforce at any work locations by 100 percent no later than March 22 at 8 p.m. (Cleary Decl. Supp. Defs.’ Mot. Dismiss (“Cleary Decl.”), Ex. B at 2, ECF No. 10-4.)³ According to Plaintiff, the Executive Order mandated the closure of Plaintiff’s four offices. (Compl.

20-21.) At some point during the pandemic, four of Plaintiff’s employees, who worked at three of its four offices, tested positive for the COVID-19 virus. (Id. 17.) Plaintiff closed all its offices to have them disinfected. (Id. 19.) A. The Policy In or around January 28, 2020, Plaintiff entered into an insurance contract (the “Policy”) with Defendant Valley Forge, a foreign corporation authorized to issue insurance policies in New York, whose parent company is Defendant CNAF. (Id.