Rochester Smelting & Refining Co. v. Merchants Mutual Insurance

188 A.D.2d 1055, 592 N.Y.S.2d 1012, 1992 N.Y. App. Div. LEXIS 14926

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1992
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that, to the extent defendant sought to avoid its duty to defend by relying on the pollution exclusion clause in the insurance policy, it bore the burden of establishing as a matter of law that the allegations of the complaint against Rochester Smelting & Refining Co., Inc. in the action entitled United States v Pesses, were " 'solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation’ ” (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 312, quoting International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325; see also, Allstate Ins. Co. v Zuk, 78 NY2d 41, 45). Upon our review of the record, we conclude that defendant met that burden. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Declaratory Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.