242-44 East 77th Street, LLC v. Greater New York Mutual Insurance

31 A.D.3d 100, 815 N.Y.S.2d 507
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 21, 2006
StatusPublished
Cited by49 cases

This text of 31 A.D.3d 100 (242-44 East 77th Street, LLC v. Greater New York Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
242-44 East 77th Street, LLC v. Greater New York Mutual Insurance, 31 A.D.3d 100, 815 N.Y.S.2d 507 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Sullivan, J.

This appeal presents the question of whether coverage is afforded under a “Businessowners Special Property Coverage Form” policy issued by defendant covering “direct physical loss of or damage to Covered Property at [plaintiffs building] . . . caused by or resulting from any Covered Cause of Loss.” Specifically, as is conceded for purposes of this proceeding, defective underpinning undertaken in connection with construction being carried out on the adjoining property caused plaintiffs building to settle and shift, resulting in cracking and bulging of certain interior and exterior areas. Defendant has denied coverage, prompting this lawsuit for breach of contract.

The policy, hardly a model of clarity or precision, defines the term “Covered Causes of Loss” as “Risks Of Direct Physical Loss unless the loss is: a. Excluded in Section B., Exclusions; or b. Limited in Paragraph A.4., Limitations.” The limitations described in paragraph A.4. are not germane to the claim at issue. Listed under the “Section B.[ ] Exclusions” is “b. Earth Movement,” described, inter alia, as “[a]ny earth movement [102]*102(other than sinkhole collapse), such as an earthquake, landslide, mine subsidence or earth sinking, rising or shifting.” In its disclaimer letter, defendant denied plaintiffs claim on the basis of the earth movement exclusion. It is a fact, however, that the earth movement exclusion had been removed from the policy by the earthquake endorsement, which added “earthquake” to the covered causes of loss in paragraph A.3. and provided that “[t]he EARTH MOVEMENT EXCLUSION does not apply.” Defendant also cited an exclusion for “Other Types of Loss,” excepting from coverage any loss caused by “[S]ettling, cracking, shrinking or expansion.” Finally, defendant relied upon the “Negligent Work” exclusion.

Plaintiff moved for partial summary judgment on liability, claiming that the damage it sustained resulted from a covered cause of loss. In support of its motion, plaintiff submitted a report from an engineer who found “[c]lear and obvious masonry and wall cracking, settlement and shifting damage . . . prevalent throughout the building,” resulting from the foundation’s settlement and shifting which, in turn, was caused by the adjoining owner’s improper underpinning and shoring activities. The total projected repair costs were $183,200. Plaintiff also demonstrated that the defects complained of did not exist before the demolition work on the adjoining property.

Defendant cross-moved for summary judgment dismissing the complaint, referring to the policy exclusions and arguing that faulty construction, settlement and earth movement are not covered causes of loss. The policy exclusion for “Negligent Work” provided that “[w]e will not pay for loss or damage caused by or resulting from . . . [fjaulty, inadequate or defective . . . [d]esign, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction ... of part or all of any property on or off the described premises.” This exclusion, however, contained an exception. While the policy provided that defendant would not pay for loss or damage caused by or resulting from negligent work, if such “excluded cause of loss . . . results in a Covered Cause of Loss, [defendant] will pay for the loss or damage caused by that Covered Cause of Loss.” Defendant also argued, as noted, that the policy also excluded “Other Types of Loss,” which included “loss or damage caused by or resulting from . . . [S]ettling, cracking, shrinking or expansion.”

Supreme Court denied the motion, granted the cross motion and dismissed the complaint, finding that the negligent [103]*103work and “settling, cracking” exclusions barred recovery under the policy. The court could find no “meaningful difference” between “settling” of a building, which, it held, is excluded from coverage, and the “shifting” of a building, as described by plaintiffs engineer, which is not part of the exclusion. We reverse.

It is well settled that

“whenever an insurer wishes to exclude certain coverage from its policy obligations, it must do so “in clear and unmistakable” language. Any such exclusions or exceptions from policy coverage must be specific and clear in order to be enforced. They are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation.” (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984] [citations omitted].)

Plaintiff demonstrated a prima facie case of coverage by showing, pursuant to the policy’s terms, “direct physical . . . damage,” i.e., the settling and shifting of its building, resulting in cracking and bulging of certain interior and exterior areas “caused by or resulting from [a] [c]overed [c]ause of [l]oss,” that is, a “[r]isk[] of [d]irect [p]hysical [l]oss,” unless the loss is excluded. To succeed in avoiding coverage, defendant must show that its interpretation of at least one of the two exclusions it asserts, “settling [and] cracking” and “[negligent [w]ork,” is the only reasonable reading of the exclusion (Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386, 390 [1962]) and that the exclusion applies.

The exclusion for “Other Types of Loss” includes “[S]ettling, cracking, shrinking or expansion,” “Wear and tear,” “Rust, corrosion, fungus, decay, deterioration ... or any quality in property that causes it to damage or destroy itself,” “Smog,” “Nesting or infestation” and loss to personal property caused by “Dampness or dryness of atmosphere” or “Changes in or extremes of temperature,” all of which share a common characteristic: they are naturally occurring events. Under the principles of ejusdem generis, a rule of construction, the meaning of a word in a series of words is determined “by the company [104]*104it keeps” (People v Illardo, 48 NY2d 408, 416 [1979]). In accordance with that rule, “a series of specific words describing things or concepts of a particular sort are used to explain the meaning of a general one in the same series” (Matter of Riefberg, 58 NY2d 134, 141 [1983]; see McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [a] [“words employed in a statute are construed in connection with, and their meaning is ascertained by reference to(,) the words and phrases with which they are associated”]). Thus, the settling or shifting of a building caused by the adjoining owner’s improper underpinning and shoring activities does not fall within the exclusion for damage caused by “settling, cracking, shrinking or expansion,” which should be limited to damage caused by natural phenomena.

In any event, the “settling, cracking” exclusion would not apply to damage caused by the “shifting” of the premises. Contrary to the motion court’s conclusion, the words “shifting” and “settling” have different and distinct meanings. The word “settle,” in the context of a fixed object such as a building or structure, means “to sink gradually to a lower level: SUBSIDE” (Webster’s Third New International Dictionary [1993]). In contrast, “shift” means “a change in place or position” (id.). Had defendant intended to exclude damage caused by “shifting,” it should have said so (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 473 [2005]; MDW Enters.

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Bluebook (online)
31 A.D.3d 100, 815 N.Y.S.2d 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/242-44-east-77th-street-llc-v-greater-new-york-mutual-insurance-nyappdiv-2006.