Opinion
December 30, 1992
Present — Boomer, J.P., Pine, Lawton, Boehm and Davis, JJ.
Appeal from the Supreme Court, Monroe County, Galloway, J.
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 N.Y.2d 304, 312, quoting International Paper Co. v Continental Cas. Co., 35 N.Y.2d 322, 325; see also, Allstate Ins. Co. v Zuk, 78 N.Y.2d 41, 45). Upon our review of the record, we conclude that defendant met that burden.