Opinion
May 6, 1996
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The insured sought indemnification from its general liability insurer for cleanup costs it incurred after liquid asphalt, which it had applied on certain roads in the Village of Thomaston, dispersed and discharged into the Manhasset Creek contaminating both property and wildlife. The insurer denied coverage for this claim based on the absolute pollution exclusion clause in its policies, after which the insured commenced the instant action. Upon the insurer's motion, the Supreme Court held, inter alia, that an issue of fact existed as to whether asphalt was a pollutant as defined by the policy exclusion.
Under the specific circumstances of this case, where the insured's oil-like asphalt sealant contaminated the waters and wildlife of the Manhasset Creek upon its discharge, the sealant constituted a pollutant within the definition of the terms in the policy ( see, State of New York v. Capital Mut. Ins. Co., 213 A.D.2d 888; Tri County Serv. Co. v. Nationwide Mut. Ins. Co., 873 S.W.2d 719 [Tex]). Consequently, since the exclusion is unambiguous, and the underlying claim falls within the exclusion, it should have been applied to preclude coverage ( see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311; Demakos v. Travelers Ins. Co., 205 A.D.2d 731).
The court erred in finding that a triable issue of fact existed as to whether the insurer authorized remediation efforts to take place, since defenses which relate to coverage or noncoverage are not waivable or subject to estoppel ( see, Powers Chemco v Federal Ins. Co., 122 A.D.2d 203, 204; Reinhart v. Terra Nova Ins. Co., 124 A.D.2d 795). Balletta, J.P., Sullivan, Santucci and Altman, JJ., concur.