Opinion
April 17, 2001.
Order and judgment (one paper), Supreme Court, New York County (Herman Cahn, J.), entered January 13, 2000, which, to the extent appealed from as limited by the brief, granted defense cross motions for partial summary judgment, declared that defendant insurers have no obligation to defend or indemnify plaintiff in respect of the so-called Stringfellow site in Riverside, California, and dismissed the third cause of action in plaintiff's fourth amended complaint, unanimously affirmed, with costs.
John W. Fried, for Plaintiff-Appellant.
John L. Altieri, Jr., George L. Maniatis, Christopher A. Erd, for Defendants-Respondents.
Before: Nardelli, J.P., Mazzarelli, Andrias, Saxe, Friedman, JJ.
The motion court properly reached a result consistent with Borg-Warner Corp. v. Ins. Co. of N. Am. ( 174 A.D.2d 24, lv denied, 80 N.Y.2d 753), which involved essentially the same allegations as those against appellant in the underlying litigation. Appellant, in responding to defendant-insurers' cross motions, demonstrating, prima facie, that the allegations of pollutant discharge in the underlying litigation fall within the pollution coverage exclusions in the subject policies, failed to meet its consequent burden "to demonstrate a reasonable interpretation of the underlying complaint potentially bringing the claims within the sudden and accidental discharge exception to exclusion of pollution coverage, or to show that extrinsic evidence exists that the discharge was in fact sudden and accidental" ; (see, Northville Indus. Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 621, 634). Appellant cannot persuasively argue for an implicit restriction in the scope of the relied upon exclusion that the parties could well have included explicitly if they had chosen to do so (see, Schenectady Intl. v. Employers Ins., 245 A.D.2d 754, 755), nor can appellant prevail by denying that it intended all of the eventual consequences of an initial discharge of pollutants that was concededly intentional (see, Technicon Electronics Corp. v. Am. Home Ass. Co., 74 N.Y.2d 66, 75). The same interpretative principles govern all of the exclusion exceptions at issue and require the conclusion that they are uniformly inapplicable (see,Olin Corp. v. Ins. Co. of N. Am., 762 F. Supp. 548, 563, affd 966 F.2d 718;cf., Indiana Gas Co. v. Aetna Cas. Sur. Co., 95 1 F. Supp. 797, 803).
We have considered appellant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.