21-1323-cv

Rye Ridge Corp., Haromar Inc. v. Cincinnati Insurance Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

13th day of January, two thousand twenty-two.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

RYE RIDGE CORP., a New York corporation, on 

behalf of themselves and all others similarly 

situated, DBA Rye Ridge Deli, HAROMAR, INC., 

a Connecticut corporation, on behalf of themselves 

and all others similarly situated, DBA Rye Ridge 

Deli,

Plaintiffs-Appellants,

v. 21-1323-cv

CINCINNATI INSURANCE COMPANY, an Ohio 

corporation,

Defendant-Appellee.

_____________________________________

For Plaintiffs-Appellants: GABRIEL A. PANEK (Robert J. Nelson, Jacob H. 

Polin, on the brief), Lieff Cabraser Heimann & 

Bernstein, LLP, San Francisco, CA, and New 

York, NY.
2

For Defendant-Appellee: DANIEL G. LITCHFIELD (Alan I. Becker,

Laurence J.W. Tooth, Edward Fogarty, Jr., on 

the brief), Litchfield Cavo, LLP, Chicago, IL, 

and New York, NY.

On appeal from the United States District Court for the Southern District of New York 

(Lorna G. Schofield, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the order of the district court entered on April 23, 2021, is AFFIRMED. 

Plaintiffs-Appellants Rye Ridge Corp. and Haromar, Inc. (the “Delis”) brought an action 

against Defendant-Appellee Cincinnati Insurance Company (“Cincinnati”), asserting claims for

breach of contract, breach of the covenant of good faith and fair dealing, deceptive business 

practices under N.Y. Gen. Bus. Law § 349 et seq., unfair trade practices under Conn. Gen. Stat. 

§ 42-110a et seq., and declaratory relief. The Delis’ complaint is premised on Cincinnati’s 

allegedly improper denial of insurance coverage for certain businesslosses resulting from COVID19 and related government restrictions. The district court dismissed the complaint for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6). The Delis now appeal. We assume 

the reader’s familiarity with the record. We review de novo a district court’s dismissal under Rule 

12(b)(6). Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015).

The sole issue on appeal is whether under New York law (which the parties agree governs 

here), the Delis experienced a “direct physical loss” within the meaning of their insurance policy 

with Cincinnati when the governors of New York and Connecticut issued executive orders limiting 

the Delis’ use of their insured premises for dine-in service. Insofar as the district court concluded 

that they had not, the Delis ask us to reverse the dismissal of their complaint or, alternatively, to

certify this question to the New York Court of Appeals. Both arguments are foreclosed by this 

Court’s recent decision in 10012 Holdings, Inc. v. Sentinel Insurance Co., No. 21-80-CV, 2021 

WL 6109961 (2d Cir. Dec. 27, 2021). 

In 10012 Holdings, the Court considered whether an art gallery was entitled to coverage 

under an insurance policy—materially identical to the one at issue here and also governed by New 

York law—for alleged business losses that resulted from the COVID-19 pandemic and related 

government restrictions. Id. at *1. Relying on the First Department’s decision in Roundabout 

Theatre Co. v. Continental Casualty Co., 751 N.Y.S.2d 4 (1st Dep’t 2002), this Court held that,

under New York law, the term “direct physical loss” in the insurance policy “do[es] not extend to 

mere loss of use of a premises, where there has been no physical damage to such premises”;

instead, “direct physical loss” and “physical damage” “require actual physical loss of or damage 

to the insured’s property.” 10012 Holdings, Inc., 2021 WL 6109961, at *4. Accordingly, 

because the plaintiff alleged nothing more than the loss of use of its premises, the Court affirmed 

the district court’s dismissal of the complaint for failing to allege any physical damage to plaintiff’s 
3

property. See id. at *1. Having found resolution of this issue to be clearly discernible from 

existing New York law, the Court also rejected the plaintiff’s request to certify the issue to the 

New York Court of Appeals. See id. at *6.

Here, as in 10012 Holdings, the Delis do not allege any physical damage to their insured 

premises, and the relevant terms of their insurance policy with Cincinnati are not materially 

different from those at issue in 10012 Holdings. Indeed, the Delis concede that 10012 Holdings

“speaks directly to both issues in the appeal in this case” and thus is controlling. We therefore 

hold that the district court correctly dismissed the complaint, and, as we did in 10012 Holdings,

2021 WL 6109961, at *5–6, we decline to certify the question to the New York Court of Appeals.1

We have considered Appellants’ remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the April 23, 2021, order of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

1 Plaintiffs’ request to hold this appeal in abeyance pending further development of the issue in the New York 

courts, or pending appellants in 10012 Holdings seeking rehearing or further appellate review, is thus denied.