An insurance company (defendant) moved to dismiss a plaintiff insured’s complaint. A plaintiff construction management company and a plaintiff owner (collectively referred to as “plaintiff”) are developing an 80-story condominium building in Brooklyn, New York. On March 7, 2020, the governor of New York issued “an executive order declaring a state disaster emergency” in response to the COVID-19 pandemic.

On March 18, 2020, the governor ordered “non-essential businesses to reduce in-person workforce at any work locations by 50%.” That percentage was increased to 100% within the next few days. On March 19, 2020, an executive order clarified that “only certain construction projects are to be considered essential and thus exempt from the in person restrictions.” The plaintiff alleged that the jobsite was required to close and then was permitted to partially reopen on or about April 20, 2020.

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