         11-169-cv
         Lissauer v. Fireman’s Fund Insurance Companies

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                         Circuit Judges,
 9                ROSLYNN R. MAUSKOPF,*
10                         District Judge.
11
12
13
14       SHARON LISSAUER,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                11-169-cv
19
20       FIREMAN’S FUND INSURANCE COMPANIES,
21
22                                     Defendant-Appellee.
23
24
25
26       FOR APPELLANT:                ALAN C. MILSTEIN, Sherman, Silverstein,
27                                     Kohl, Rose & Podolsky, P.A., Moorestown,
28                                     N.J.
29

                *
                Judge Roslynn R. Mauskopf, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
1    FOR APPELLEE:     EVAN H. KRINICK (Stuart M. Bodoff, on the
2                      brief), Rivkin Radler LLP, Uniondale,
3                      N.Y.
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Kaplan, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the United States District

10   Court for the Southern District of New York be AFFIRMED.

11       Appellant appeals from a judgment of the United States

12   District Court for the Southern District of New York

13   (Kaplan, J.), which granted Appellee Fireman’s Fund

14   Insurance Companies’ motion for summary judgment.     We assume

15   the parties’ familiarity with the underlying facts, the

16   procedural history, and the issues presented for review.

17       Appellant Sharon Lissauer invested with Bernard Madoff

18   Investment Securities for almost twenty years.     When

19   Madoff’s Ponzi scheme unraveled in the fall of 2008,

20   Lissauer suffered significant losses.     Lissauer sought

21   coverage for those losses under a homeowner’s insurance

22   policy issued to her by American Insurance Company, one of

23   the Fireman’s Fund Insurance Companies.     The carrier denied

24   coverage, but offered and did pay the policy’s money sub-

25   limit of $2,000 for each of three policy years, totaling

26   $6,000, under a full reservation of rights.

                                  2
1        Lissauer then sued in the United States District Court

2    for the Southern District of New York for, among other

3    things, a declaration that her Madoff losses were covered

4    under the policy.   The district court granted the carrier’s

5    summary judgment motion, finding that even if Lissauer's

6    investments constituted personal property within the meaning

7    of the policy, coverage was unavailable because her property

8    did not suffer a “direct physical loss."    Lissauer now

9    appeals the district court's grant of summary judgment to

10   the insurance company.

11       We review a district court’s grant of summary judgment

12   de novo and construe all evidence in the light most

13   favorable to the non-moving party.    See Brod v. Omya, Inc.,

14   653 F.3d 156, 164 (2d Cir. 2011).    “Summary judgment is

15   appropriate only if the moving party shows that there are no

16   genuine issues of material fact and that the moving party is

17   entitled to judgment as a matter of law.”    Miller v. Wolpoff

18   & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

19       We find no error in the district court’s grant of

20   summary judgment.   Even assuming that Lissauer suffered the

21   loss of an intangible “account,” Lissauer cannot demonstrate

22   that the account suffered a “direct physical loss,” as


                                   3
1    required for coverage under the policy.   See 10A Couch on

2    Insurance § 148:46 (3d ed. 2011).

3        After a thorough review of the record, we find

4    Lissauer’s remaining arguments to be without merit.

5        For the foregoing reasons, the judgment of the district

6    court is hereby AFFIRMED.

 7
 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11




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