The third-party defendant, Commerce and Industry Insurance Company (hereinafter "Commerce") moves pursuant to CPLR 3212 for summary judgment dismissing the third-party action brought by defendants/third-party plaintiffs,Mohonk Oil Company, Inc., Mohonk Oil and Propane, Inc. (hereinafter " Mohonk"), James Owens (hereinafter " Owens") and Starnet Insurance Company (hereinafter "Starnet") (collectively, "Third-Party Plaintiffs"). The third-party plaintiffs oppose the motion.

The action arises out of the alleged discharge of fuel oil onto the property owned by the plaintiff Stone Ridge Country Properties (hereinafter "Stone Ridge") on or about November 21, 2006 by the driver of a Mohonk vehicle. In the Stone Ridge action, the plaintiff also names as defendants the insurers for Mohonk, Starnet Insurance Company and W.R. Berkley Corporation. On May 15, 2008, the defendants Heritagenergy (NY), Inc., Heritage Energy, Inc. and Heritagenergy LP Gas, Inc. (collectively, hereinafter "Heritage") entered into a merger agreement and/or asset purchase/transfer agreement with Mohonk. It is alleged that pursuant to the merger and/or asset purchase/transfer agreement , Heritage assumed the liabilities of Mohonk as successor(s)-in-interest. The plaintiff in the Stone Ridge action asserts that Heritage was liable for the damages as a result of the discharge, as the successor in interest of Mohonk. The third-party plaintiffs then commenced a third-party action against Commerce under Navigation Law §190 seeking contribution and indemnification under its Commercial General Liability (hereinafter "CGL") policy for the damages in the Stone Ridge action as an insurer for Heritage because Heritage acquired the assets of Mohonk. Commerce answered the third-party complaint and asserted affirmative defenses that alleged it had no obligation to indemnify Heritage for the damages that arose in the Stone Ridge action because the CGL policy issued to Heritage had expired on August 21, 2007, prior to the May 15, 2008 merger between Mohonk and Heritage.

In the instant motion, Commerce asserts its entitlement to summary judgment because: 1) the third-party plaintiffs lack standing to bring an action against Commerce pursuant to Navigation Law §190; 2) Heritage had no corporate or other ownership relationship with Mohonk prior to or during the Commerce CGL policy period of August 21, 2006 through August 21, 2007 and; 3) if the Commerce policy applies, the policy contains a Pollution Exclusion which bars coverage for the Stone Ridge action. The third-party plaintiffs oppose the motion asserting that they have standing as an "injured person" under Navigation Law §190, and, that Commerce [*2]should be estopped from raising a defense of the policy exclusions as prejudicial to the insured.

In order to warrant the court to direct summary judgment in his or her favor as a matter of law, the movant must establish, by sufficient evidence in admissible form that the opposing party's position has no merit (see Bush v St.Claire's Hospital, 82 NY2d 739, 739 [1993]; Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). To defeat the motion the opponent must show the existence of triable issues of fact (see CPLR §3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Commerce contends that the third-party plaintiffs lack standing under Navigation Law §190 to bring an action against Commerce. Commerce argues that Navigation Law §190 permits only certain parties to bring direct actions against the insurer. In pertinent part, Navigation Law §190 contains the following language:

"Any claims for costs of cleanup and removal, civil penalties or damages by the state and any claim for damages by any injured person [emphasis added], may be brought directly against the bond, the insurer, or any other person providing evidence of financial responsibility."

The definition of an injured party under Navigation Law §190 is further delineated by the Act's definition of "claim" that is defined under Navigation Law §172 [3] as:

"...any claim by an injured person, who is not responsible for the discharge [emphasis added], seeking compensation for cleanup and removal costs incurred or damages sustained as a result of a petroleum discharge (see Navigation Law §172[3]).

Commerce argues that the third-party plaintiffs are not "injured parties" but rather, are the parties responsible for discharging the fuel oil and, as such, are not an injured person under Navigation Law §190 (State v King Service, Inc., 167 AD2d 777, 779 [3rd Dept 1990]). While the third-party plaintiffs argue that Commerce as the insurer of Heritage is directly liable for the discharge, they fail to address how, even if this fact is true, that makes them an "injured party" in the action. Upon review of the record, this Court finds that the only injured party in the action is the plaintiff Stone Ridge. Since it was the employee of Monhonk who delivered the fuel oil to the residence and Starnet is Mohonk's insurer, the third-party plaintiffs are responsible for the discharge and do not qualify as an injured person pursuant to Navigation Law §190. As stated by the court in King, there is no interpretation of the statute that would allow a discharger to require the insurer of another discharger to pay for the cleanup costs due to the plaintiff (State v King Service, Inc., supra). Accordingly, the third-party plaintiffs do not have standing to bring this cause of action against Commerce.

Based upon the aforesaid finding, this Court need go no further. However, if the Court had otherwise found standing for the third-party plaintiffs, Commerce would still be entitled to summary judgment dismissing the action because Heritage had no corporate or other ownership relationship with Mohonk prior to or during the Commerce CGL policy period of August 21, 2006 through August 21, 2007. Here, in support of its argument Commerce submits the third-party plaintiffs response to its interrogatories as to the corporate relationship with Commerce's insured Heritage. The responses by the third-party plaintiffs indicate that no corporate relationship existed between the two prior to May 2008. It is notable that the third-party plaintiffs fail to refute this argument in its opposition. The record reflects that the CGL policy issued to Heritage expired on August 21, 2007, eight months prior to the May 15, 2008 merger [*3]between Mohonk and Heritage. Case law is clear that where insurance policies expire prior to a corporate merger or acquisition, the insurers are not liable for an "after-acquired liability" (see Maryland Cas. Co. v W.R. Grace & Co., 79 F.Supp. 1206, 1231 [SDNY 1991]). The remaining contentions have been considered and found to be either moot or without merit.

Accordingly, it is

ORDERED that the third-party defendant's motion for summary judgment dismissing the third-party action in its entirety is granted without costs.

This shall constitute the decision and order of the Court. The original decision and order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

SO ORDERED.

Dated: Kingston, New York

June 16, 2011

ENTER,

_______________________________

JAMES P. GILPATRIC, J.S.C.

Papers considered: Notice of motion dated May 2, 2011; affirmation in support of Neal M. Glazer, Esq. dated May 2, 2011, with annexed exhibits A-J; memorandum of law in support by Neal M. Glazer, Esq. dated May 2, 2011; affirmation in opposition Elizabeth A. Fitzpatrick, Esq., dated May 24, 2011 with annexed exhibits A-E; reply memorandum of law in further support by Neal M. Glazer, Esq. dated June 7, 2011; affidavit of Brian R. Murray dated June 7, 2011.