Mercure, J. (dissenting in part and concurring in part). I disagree with the majority’s conclusion that the "governmental directive” limitation of plaintiff’s "products-completed operations hazard” coverage renders the absolute pollution exclusion applicable to the underlying direct action against plaintiff by Petr-All Petroleum Consulting Corporation. It is undisputed that under the circumstances present here, the pollution exclusion will not apply if "[a]ny loss, cost or expense incurred as a result of any 'clean-up’ of 'pollutants’ is not the result of a governmental directive or request” (emphasis supplied). Although Petr-All’s complaint alleges that the Department of Environmental Conservation (hereinafter DEC) served a notice and claim that Petr-All "was obligated under the Navigation Law * * * and otherwise to investigate and remediate discharges from the Site or be subject to fines and penalties”, it does not necessarily follow that Petr-All was caused to expend sums relating to the investigation, remediation, sampling and control of the discharge solely as "the result of’ the governmental directive or request. Quite to the contrary, under Navigation Law § 181 (1) Petr-All was strictly liable for all cleanup and removal costs and all direct and indirect damages resulting from the petroleum discharge (see, Matter of White v Regan, 171 AD2d 197, 200, lv denied 79 NY2d 754) regardless of any action on the part of DEC. Consistent therewith, the complaint repeatedly alleges that plaintiff incurred the subject expenses as the result of the discharge and its resulting liability under the Navigation Law. I agree with plaintiff that, as applied to liability under the Navigation Law for the discharge of petroleum, the policy’s governmental directive limitation is meaningless. Accordingly, I would reverse Supreme Court’s grant of summary judgment in favor of defendant in all three of the actions and not just *123the two actions arising out of claims of the adjoining property owners.
As a final matter, in its motion for summary judgment in each of the actions, plaintiff sought a declaration (1) that it was entitled to a defense in the underlying action, (2) that it was entitled to be defended by counsel of its own choosing, and (3) that it was entitled to indemnification. Because of its determination to dismiss the complaints, Supreme Court had no occasion to consider plaintiff’s individual prayers for relief. In view of the fact that the current record offers little assistance in this regard, I would remit the matter to Supreme Court for determination of plaintiff’s motions for summary judgment.
Cardona, Mahoney and Casey, JJ., concur with Mikoll, J. P.; Mercure, J., dissents in part and concurs in part in a separate opinion.
Ordered that the orders and judgments in the two actions relating to the two underlying actions commenced by the adjoining property owners are reversed, on the law, without costs, defendant’s cross motions for summary judgment are denied, plaintiff’s motions for summary judgment are granted, and it is declared that defendant is obligated to defend plaintiff in said underlying actions.
Ordered that the order and judgment in the action relating to the underlying direct action by Petr-All Petroleum Consulting Corporation is affirmed, without costs.