Opinion
July 3, 1997
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Denman, P. J., Green, Doerr, Balio and Fallon, JJ.
Supreme Court properly concluded that New York Casualty met its burden of establishing that the language of the policy's pollution exclusion is clear and unambiguous and applies in this case ( see, Cannon Constr. Co. v. Liberty Mut. Ins. Co., 227 A.D.2d 364; see also, Space v. Farm Family Mut. Ins. Co., 235 A.D.2d 797).
The court also properly rejected the contention of plaintiffs that New York Casualty had a duty to indemnify them for cleanup costs under the general liability portion of the policy because they may in the future be strictly liable for those costs pursuant to Navigation Law article 12. There is no pending claim or lawsuit against plaintiffs in connection with the oil spill. Therefore, the general liability provision of the policy has not been triggered, and plaintiffs have no cause of action against New York Casualty to indemnify them for those costs.
Finally, because the complaint seeks a declaratory judgment, the court should not have dismissed the complaint but should have declared the rights of the parties ( see, Cepeda v. Varveris, 234 A.D.2d 497; Pless v. Town of Royalton, 185 A.D.2d 659, 660, affd 81 N.Y.2d 1047). Thus, we modify the judgment by reinstating the complaint and granting judgment in favor of New York Casualty declaring that it has no duty to provide coverage to plaintiffs or to indemnify them. (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — Declaratory Judgment.)