Upon the foregoing papers it is ordered that the motion by defendant, County Oil Company, Inc. ("County Oil") for partial summary judgment on its cross-claim against American Home Assurance Company ("American Home") is denied, and the cross-motion by American Home for summary judgment against defendants County Oil, Anchor Transit Corp. ("Anchor Transit") and Bruckner Realty, LLC ("Bruckner") is granted.

Bruckner, the owner of an apartment building located at 3555 Bruckner Blvd., Bronx, New York, commenced this action to recover monetary damages flowing from the release of a petroleum product that is asserted to have occurred on or about September 28, 2004 (hereinafter [*2]referred to as the "oil spill").

The record before the Court indicates that on September 23, 2004, Anchor Transit, pursuant to its agreement with County Oil, delivered approximately 6,500 gallons of fuel oil to the above-referenced premises. Thereafter, Bruckner notified County Oil that the oil delivered was not moving properly through its heating system. On September 28, 2004, County Oil dispatched a technician from A.B.C. Tank Repair & Lining, Inc. ("A.B.C.") to correct the problem. The A.B.C. technician is alleged to have "applied pressurized steam to the pipes without first examining the heating system and the integrity of the pipes and without taking other reasonable precautions to prevent damage to the pipes." (complaint, ¶ 23)

On September 29, 2004, the New York Department of Environmental Conservation notified plaintiff that "heating oil that was traced to its building was being discharged into Weir Creek via a sewer outfall." (complaint, ¶ 24) The complaint further alleges: 1) "that the source ... was a burst pipe in the boiler room in the building" (¶ 26); 2) that the "heating oil was defective and/or contained impurities and/or was of an improper grade ( ¶ 72); and 3) that "the defect or inferior quality ... set in motion the events that led to the oil spill." ( ¶ 74)

In the complaint, Bruckner seeks damages against defendants Anchor Transit, County Oil, Mystic Tank Lines, Corp. and A.B.C. based on various theories, including but not limited to strict liability, restitution, indemnification, contribution and breach of contract. Plaintiff's allegations against American Home are premised solely on the ground that the carrier issued insurance policies to Anchor Transit wherein the latter was named the prime insured and County Oil was an "additional insured".

The primary issue before this Court is whether County Oil and/or Anchor Transit is entitled to a defense under one of the two liability insurance policies American Home issued.

County Oil contends that American Home undertook the obligation to defend it as an additional insured "against claims alleging pollution expense arising from the contamination of County Oil's oil products during the course of loading, transit and/or unloading of insured oil delivery trucks owned by American Home's principal named insured, [Anchor Transit]". (¶3, supporting affirmation Scott N. Fein, Esq.)

In response, American Home asserts that it owes no coverage to County Oil or Anchor Transit under either the automobile policy or the general liability policy that were in effect at the operative time. Specifically, the carrier notes that the underlying complaint does not allege that the spill occurred during the process of loading or unloading an insured's oil truck, and, based on an express pollution exclusion appearing in the corresponding general liability policy, that there is no coverage for the losses claimed.

While a liability insurer's duty to defend its insured is "exceedingly broad" (Colon v Aetna Life and Casualty Insurance Company,, 66 NY2d 6, 8 ), it is not boundless, and in determining whether a claim falls within a policy's parameters, an insurer may look to the pleadings in the underlying action.

"It is settled law that an insurer must afford its insured a defense unless it can show that the allegations of the complaint put it solely within the policy exclusion (International Paper Co. v Continental Cas. Co., supra, at 325). But the analysis depends on the facts which are pleaded, not the conclusory assertions (see, Goldberg v Lumber Mut. Cas. Ins. Co., 297 NY 148, 154). Thus, where the theory of liability on which the injured party is proceeding cannot be determined [*3]from the facts pleaded, the insurer must defend (see, Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876-877). But where it can be determined from the factual allegations that no basis for recovery within the coverage of the policy is stated in the complaint, [a court] may sustain [the insurer's] refusal to defend' (Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368, supra; see, e.g., New York Cas. Ins. Co. v Ward, 139 AD2d 922 [summary judgment granted to insurer where insured sued for injuries caused by assault notwithstanding conclusory allegations of negligence]; Contracting Plumbers' Coop. Restoration Corp. v Hartford Acc. & Indem. Co., 59 AD2d 921, 922 [no coverage where facts pleaded put occurrences outside locations covered by policy despite general shotgun allegations of negligence']). (Allstate Insurance Company v Mugavero, 79 NY2d 153, 162, 163)

The applicable motor vehicle liability policy provided that the carrier would defend an insured against a lawsuit seeking " covered pollution cost or expense'... caused by an accident' and resulting from the ownership, maintenance or use of a covered autos'." "Generally speaking, liability insurance on the use of a motor vehicle includes coverage for bodily injury suffered during the loading or unloading of the vehicle. However, there still must be a demonstration that the injury resulted from some act or omission related to the use of the vehicle' (Eagle Ins. Co. v Butts, 269 AD2d 558, 559, lv denied 95 NY2d 768; see also Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643, 644-645). Simply sustaining an injury during the unloading process, without any showing of negligent use of the truck, does not invoke liability coverage under the vehicle insurance policy (Coughlan v Turner Constr. Co., 296 AD2d 342)." (ABC, Inc. v Countrywide Insurance Company, 308 AD2d 309, 310 [1st Dept.])

The property damage claimed in this action was not caused by an accident resulting from the ownership, maintenance or use of a covered vehicle, nor did it arise during the process of loading or unloading a covered vehicle.

"Absent such allegations as to negligent use of the vehicle, the insurer has no obligation to defend let alone indemnify the insured (Progressive Cas. Ins. Co. v Yodice, 276 AD2d 540, 542)." (ABC, Inc. v Countrywide Insurance Company, supra at p.311; see, also, Eagle Insurance Company v Butts, 269 AD2d 558, 559, lv den 95 NY2d 768)

Moreover, this Court finds that the Total Pollution Exclusion Endorsement contained in American Home's general liability policy excludes coverage for the oil spill. The subject endorsement explicitly and unambiguously states that the policy does not apply to " bodily injury' or property damage' which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants' at any time."

As noted the plaintiff seeks to recover damages resulting from an oil spill. Clearly, fuel oil is a pollutant within the meaning and scope of the exclusion, and, hence, American Home is not obligated to defend Anchor Transit and, by extension, County Oil. (see, Tartan Oil Corp. v Clark, 258 AD2d 457, 458, lv den 94 NY2d 751)

Based on the foregoing, American Home is entitled to judgment declaring that it is neither obligated to defend nor indemnify County Oil or Anchor Transit under the subject policies of insurance for the losses claimed by Bruckner in this litigation. [*4]

It follows therefrom that the plaintiff's complaint and County Oil's cross-claim, insofar as each is asserted against American Home, are dismissed.

In light of the disposition herein, County Oil's prayer for a stay is denied.

Counsel for the respective parties are directed to appear for a Preliminary Conference before a member of the DCM staff (lower level) on March 28, 2006 at 2:30 p.m.

DATED: February 27, 2006..............................................................

J.S.C.