The facts are fully set forth in the dissenting memorandum of this court. We are of the opinion, however, that the exclusionary clause relied upon by the plaintiff does not relieve it from its duty to defend in the Ferncmdez action. That clause provides that “2. This insurance does not apply * * * (d) to injury sustained by any person who is an employee of the named insured at the time of the offense causing the injury.” Hence, the policy excludes coverage *662only in relation to one who was "an employee * * * at the time of the offense causing the injury.” The complaint in the Fernandez action clearly contains separate causes of action based upon separate acts which occurred long after termination of Fernandez’ employment. Based upon such complaint it would be'possible for a jury to find for plaintiff (Fernandez) solely on the basis of events occurring after his discharge and without reference to events which took place earlier during the course of his employment. Since the complaint in the Fernandez action alleges facts and circumstances, some of which would, if proved, fall within the risk covered by the policy, the insurer must defend (see Prashker v. United States Guar. Co., 1 N Y 2d 584).
The plaintiff urges that the phrase contained in the exclusionary clause — “ offense causing the injury ” — refers to the act of the employee giving rise to the hazards of false arrest, false imprisonment, etc., and hence there is no coverage since the act of the employee occurred during the time of his employment. A fair reading of the policy and with reference to the other exclusionary clauses indicates that such phrase referred to acts of the insured which caused the injury. In any event, if at best there be any ambiguity in the exclusionary clause, such must be resolved against the insurer and in favor of the insured. (Sincoff v. Liberty Mut. Fire Ins. Co., 11 N Y 2d 386.)
Moreover, the position that the exclusion applies to all acts taken by the insured even after termination of the employment is certainly not within the strict wording of the exclusionary clause and the insurer has not carried its burden of proving that the case comes within the exclusion. (American Sur. Co. of N. Y. v. National Fire Ins. Co. of Hartford, 25 A D 2d 734.) “To sustain the construction of an exclusion provision in a policy as urged by the insurer, the insurer has the burden of establishing that the words and expressions used not only are susceptible of that construction, but that it is the only construction which can be fairly placed thereon.” (29 N. Y. Jur., Insurance, § 623, p. 616.)
Accordingly, the order entered May 21, 1968 directing plaintiff to defend the Fernandez action should be affirmed.
Concur — Eager, J. P., Nunez and Tilzer, JJ.; Steuer, J., dissents in the following memorandum: