Recitation, as required by CPLR 2219(a), of the papers considered in the review of this
motion for :___________________________________________

Plaintiff commenced the instant action against defendants asserting causes of action for breach of contract, bad faith and violation of General Business Law § 349. Defendants Tower Group, Inc. ("TGI") and Tower National Insurance Company ("TNIC") (collectively referred to as "Tower") now move for an Order granting them summary judgment dismissing plaintiff's complaint in its entirety. For the reasons set forth below, defendants' motion is granted.

The relevant facts are as follows. This action concerns plaintiff's claim under a commercial and property insurance policy No. CPP2900496-12 (the "Policy"), issued by TNIC for property located at 104-106 West Houston Street, New York, NY 10012 (the "Premises"). Plaintiff alleges that on "October 29, 2012 during and after . . . Superstorm Sandy, it sustained losses and damages including but not limited to, food spoilage, business interruption, the inability to conduct plaintiff's usual business, and loss of business income . . .." It further contends that as a result of Sandy, its restaurant "remained for various times without electrical power, refrigeration and freezer use." Specifically, plaintiff claims it ceased business operations from October 31, 2012 through November 4, 2012, but that power was restored at the Premises on November 3, 2012. Due to this loss of electrical power/refrigeration, plaintiff allegedly suffered a loss of business income amounting to approximately $40,000, a loss of stored food in the amount of $14,203, and was required to pay its usual business expenses during that time in the amount of approximately $28,215. Thus, following this loss, plaintiff submitted a claim to TNIC pursuant to the Policy.

Upon receipt of plaintiff's claim, TNIC retained an independent adjustment company, Northern Coast Claim Services, Inc. ("NCC"), which inspected the extent of the claimed damages on December 12, 2012 and issued a report outlining its findings. The NCC report states "[t]he damage has been caused by off premises power outage as a result of Hurricane Sandy" and that "[t]he outage was caused by flooding." TNIC's investigation of the cause of the power interruption is supported by the investigation conducted by Con Edison, which supplies power to the Premises. Maria Rodriguez ("Rodriguez"), an engineer in Con Edison's distribution department has submitted an affidavit attaching a report by Con Edison, wherein she explains the cause of the power outage as follows:

At all relevant times, [the Premises] received electric service from Con Edison's Sheridan Square Network. The Sheridan Square Network is supplied from the Leonard Street No. 1 substation, which is supplied from the East River Transmission Substation. On October 29, 2012, the East River Transmission Substation, located adjacent to the East River in Manhattan, suffered a tremendous amount of tidal flooding that damaged critical equipment, and in particular components of the protective relaying and dielectric systems. Severe flooding at the East River Transmission Substation caused the shutdown of the substation and resulted in the loss of all load supplied by the substation at 8:26 p.m. on October 29, 2012. The Sheridan Square Network had regular service until that time, at which point all customers in the network lost electric service. Electric service was restored to the Sheridan Square Network on November 3, 2012 at 4:23 a.m..

Upon completion of the investigation, TNIC denied coverage for plaintiff's claim based on the Policy's language excluding "water" as a covered cause of loss. Based on defendants' denial of its claim, on or about August 19, 2014, plaintiff commenced the instant action asserting claims for breach of contract, bad faith and violation of General Business Law ("GBL") § 349.

On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to Aproduce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim.@ See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). However, Amere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient@ to defeat summary judgment. Id.

In the present case, the court finds that Tower has established its prima facie right to summary judgment dismissing plaintiff's claims on the ground that plaintiff's loss is not covered under the Tower Policy. The Policy expressly and unambiguously provides that coverage for loss associated with power interruptions are limited to those that "result from direct physical loss or damage by a Covered Cause of Loss." The Policy defines "Covered Cause of Loss" as follows:

A. Covered Causes of Loss

When Special is shown in the Declarations, Covered Causes of Loss means Risks of Direct Physical Loss unless the loss is:

1. Excluded in Section B., Exclusions; or

2. Limited in Section C., Limitations;

B. Exclusions

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. . . .

g. Water

(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;

The above provision unambiguously excludes from the definition of Covered Cause of Loss any loss caused by flood. Both the NCC report and Con Edison report explicitly state that the substation supplying power to the Premises was damaged by flooding from Sandy, which resulted in a power interruption to the Premises from September 29, 2012 until November 3, 2012. Thus, under the clear and unambiguous provisions of the Policy, plaintiff's claim at issue herein is excluded from coverage.

To the extent plaintiff contends that summary judgment is inappropriate as the language of the Policy is ambiguous as the phrase "an interruption must result from direct physical loss or damage by a Covered Cause of Loss" can be read in two ways, including that an interruption must result from either a "direct physical loss" or "damage by a Covered Cause of Loss," such [*2]contention is without merit. This court finds that the phrase unambiguously reads that any loss or damage must be by a covered cause of loss and other courts who have previously interpreted this exact phrase have reached the same conclusion. Specifically, courts have held that " direct physical' modifies both loss and damage, [which] must be caused by a covered cause of loss.'" Philadelphia Parking Auth. v. Fed. Ins. Co., 385 F. Supp. 2d 280, 288 (S.D.NY 2005); see also Newman Myers Kreines Gross Harris, P.C. v. Great N. Ins. Co., 17 F. Supp. 3d 323, 331 (S.D.NY 2014).

Additionally, to the extent that plaintiff contends that summary judgment should be denied as there remains an issue of fact as to whether in fact the alleged exclusion of coverage may have been a "scrivener's error," such contention is utterly without merit. "A scrivener's error constitutes a mistake solely in the reduction of an agreement to writing." Rasalie Estates, Inc. v. Colonia Ins. Co., 227 AD2d 335 (1st Dept 1996). Here, plaintiff has failed to present any evidence that there was a mistake in the reduction of the Policy to writing. Rather, to support its argument, plaintiff presents the court with unauthenticated policy forms that are allegedly from prior Policy years. However, these alleged policy forms are simply blank forms that have no information suggesting they were part of any policy, no less plaintiff's prior policies. Indeed, the alleged form from the applicable Policy year clearly lists plaintiff's Policy number, while the other prior forms do not contain such information. Thus, these blank forms have no probative value and are entirely insufficient to support a finding that there was scrivener's error in this case.

Additionally, to the extent plaintiff contends that summary judgment should be denied as defendants' motion is based on inadmissible evidence, such contention is without merit as the Con Edison report submitted by defendants in support of their motion is properly authenticated and admissible as a business record. Under CPLR § 4518(a),

Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if . . . it was made in the regular course of any business and it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.

Here, Maria Rodriguez clearly authenticated the Con Edison report and attested to the fact that it was prepared in the normal course of business operations. Thus, it is admissible and sufficient to support defendants' motion for summary judgment.

Similarly, to the extent plaintiff contends that summary judgment should be denied as defendants have failed to present an admissible certified copy of the Policy, such contention is without merit. Attached to defendants' attorney's affidavit is a properly certified copy of the Policy. Plaintiff's contention that the annexed Policy could not be a true copy of the original as the first page of the alleged Policy indicates a policy period from "5/22/12 to 5/22/13" but at the bottom of that page it indicates that it was signed by an "authorized representative" on "09/02/2014" is unavailing as defendants have explained that this date, "09/02/2014" refers to the time the forms were printed, not the date it was signed.

Finally, to the extent plaintiff contends that summary judgment is premature as further discovery is necessary, such contention is without merit as plaintiff has failed to identify any further discovery it could take that would establish that the power interruption was not caused by flood.

Accordingly, based on the foregoing, plaintiff's motion is granted and it is hereby ORDERED that this action is dismissed. The clerk is directed to enter judgment accordingly.