642 N.Y.S.2d 117 | N.Y. App. Div. | 1996
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of defendant Commercial Union Insurance Company (Commercial Union) for summary judgment dismissing the complaint and the cross claim of defendant The Douglas Company (Douglas) against it. The builder’s risk insurance policy issued to plaintiff by Commercial Union excludes from coverage loss resulting from "[e]arthquake, volcanic action, mud flow, earth sinking, earth rising or shifting, landslide or other earth movement unless fire or explosion results.” Early in February 1994, a severe cold spell caused the ground to freeze under a vacant building owned by plaintiff that was being converted into a long-term health care facility. The frozen ground exerted pressure on the concrete floor of the building, causing the floor and the interior non-weight bearing walls to crack. Because the heaving of the ground caused by the frost represented "other earth movement” within the meaning of the policy exclusion, the court properly dismissed the first cause of action seeking damages for loss to plaintiff’s building (see, Kula v State Farm Fire & Cas. Co., 212 AD2d 16; see also, Weaver v Hanover Ins. Co., 206 AD2d 910; Nowacki v United Servs. Auto Assn. Prop. & Cas. Ins. Co., 186 AD2d 1038).
The court also properly dismissed the second cause of action
In light of our determination, we do not reach plaintiff’s remaining contentions. (Appeals from Order of Supreme Court, Onondaga County, Tormey, J.—Summary Judgment.) Present—Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.