Weaver v. Hanover Insurance 206 A.D.2d 910, 614 N.Y.S.2d 840

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff contends that there is an issue of fact whether the damage to her *911chimney and foundation resulted from "hidden decay” as defined by the homeowner’s insurance policy issued by defendant. We disagree. Plaintiff’s expert concluded that the damage was caused by "compaction of the soil under the weight of the chimney” and thus the damage falls within the "Earth Movement” exclusion to the policy (see, Nowacki v United Servs. Auto. Assn. Prop. & Cas. Ins. Co., 186 AD2d 1038). Although defendant’s expert offered a slightly different opinion regarding the cause of the damage, the cause proffered by defendant’s expert also falls within the exclusions to the policy. In any event, there is no proof in the record that the damage was caused solely by "hidden decay.” Because this is a declaratory judgment action, the court erred in dismissing the complaint (see, Tumminello v Tumminello, 204 AD2d 1067). (Appeal from Judgment of Supreme Court, Niagara County, Rath, Jr., J.—Declaratory Judgment.) Present—Denman, P. J., Green, Balio, Wesley and Davis, JJ.