242-44 East 77th Street, LLC v. Greater New York Mutual Insurance Company
In 242-44 East 77th Street, LLC v. Greater New York Mutual Insurance Company, 31 AD3d 100, 815 N.Y.S.2d 507 [1st Dept], a business owner's policy excluded from coverage loss caused by "settling, cracking, shrinking or expansion."
The plaintiff's building therein sustained masonry and wall cracking, as well as settlement and shifting of the foundation, as a result of improper underpinning and shoring activity conducted by the adjoining property owner.
In granting summary judgment to the insured, the Appellate Division held that the "settling, cracking" exclusion did not apply to damage caused by the shifting of the premises.
The Appellate Court reasoned that, "[t]he 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 )." (242-44 East 77th Street, LLC v. Greater New York Mutual Insurance Company, supra, at 104)