—Judgment modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Supreme Court properly granted the motion of defendant for summary judgment on the ground that Donald H. Baughman and Donald H. Baughman, Inc. (plaintiffs) were not insureds under its policy and, therefore, not entitled to coverage. The parties agree that plaintiffs were "owners” of the vehicle within the meaning of the policy. An owner is not an "insured” under the "Truckmen’s” endorsement if the bodily injury occurs "while [the] automobile is not being used exclusively in the business of the named insured and over a route the named insured is authorized to serve by federal or public authority; but this limitation shall not apply to an automobile while en route, at the request of the named insured, to engage in such exclusive use and not transporting property for others.” That unambiguous language establishes that there is coverage when the automobile is being used exclusively in the named insured’s business or en route to engage in that business. Here, the New York State Workers’ Compensation Board determined that, when the accident occurred, the driver of the vehicle was not acting within the scope of his employment, but rather, was using the vehicle for his personal use. That determination is binding on plaintiffs (see, Liss v Trans Auto Sys., 68 NY2d 15) and establishes that the vehicle was not being used exclusively in the business of *1031the named insured or en route to do that business at the named insured’s request.
Because this is a declaratory judgment action, the court in granting defendant’s motion for summary judgment should not have granted that part of the motion seeking dismissal of the complaint and should have made a declaration. We, therefore, modify the judgment on appeal by reinstating the complaint and granting judgment in favor of defendant declaring that defendant properly denied coverage on the ground that plaintiffs were not insureds under defendant’s policy.
All concur except Denman, P. J., and Fallon, J., who dissent and vote to reverse in the following Memorandum.