TARTAN OIL CORP v. American Home Assurance Co., respondent. (1999)

In an action, inter alia, for a judgment declaring that the defendant American Home Assurance Co. was obligated to defend and indemnify the defendants Edward L. Clark, Elco Maintenance Co., Inc., and Elco Plumbing under the terms of three insurance policies, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 8, 1997, which granted the motion of the defendant American Home Assurance Co. for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs payable to the defendant American Home Assurance Co., and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate judgment declaring that the defendant American Home Assurance Co. is not obligated to defend and indemnify the defendants Edward L. Clark, Elco Maintenance Co., Inc., and Elco Plumbing under the terms of the subject insurance policies.

The plaintiffs commenced this action claiming that the defendants Edward L. Clark, Elco Maintenance Co., Inc., and Elco Plumbing were liable for cleanup costs after certain underground petroleum storage tanks, installed on the plaintiffs' property, caused soil and groundwater contamination.   In addition, the plaintiffs sought a judgment declaring that the defendant American Home Assurance Co. (hereinafter American) was obligated to defend and indemnify the defendants Edward L. Clark, Elco Maintenance Co., Inc., and Elco Plumbing under the terms of three insurance policies issued to the defendant Elco Maintenance Co., Inc., in connection with the installation of the storage tanks.

 The Supreme Court properly granted American's motion for summary judgment (see, White v. Freedman, 227 A.D.2d 470, 643 N.Y.S.2d 160).   The three policies at issue contained total pollution exclusions which excluded coverage for any property damage caused by pollutants.   The complaint sought to recover damages for alleged damage to property resulting from petroleum leakage into the soil and groundwater.   The exclusion is unambiguous and the allegations of the complaint fall within the exclusion (see, Demakos v. Travelers Ins. Co., 205 A.D.2d 731, 613 N.Y.S.2d 709;  Budofsky v. Hartford Ins. Co., 147 Misc.2d 691, 556 N.Y.S.2d 438).

 We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of American (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

The plaintiffs' remaining contention is without merit.

MEMORANDUM BY THE COURT.