Bonide Chemical Co. v. Hartford Accident & Indemnity Co. , 604 N.Y.S.2d 875 ( 1993 )

—Order and judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Supreme Court should not have granted summary judgment dismissing the complaint but rather should have declared the rights of the parties (see, Pless v Town of Royalton, 185 AD2d 659, 660, affd, 81 NY2d 1047). Thus, we modify the order and judgment to reinstate the complaint and to declare that Great American Insurance Company is not obligated to defend or indemnify plaintiff with respect to the proceeding brought by the New York State Department of Environmental Conservation concerning the leakage of xylene at plaintiffs Yorkville facility. (Appeal from Order and Judgment of Supreme Court, Onondaga County, Pooler, J.—Summary Judgment.) Present—Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.