Majority
p. 733Presbyterian Hospital in the City of New York, as Assignee of Simon Greenbaum, Appellant, v Empire Insurance Co., Respondent. [633 NYS2d 340]
—In an action pursuant to Insurance Law § 5106 (a) to recover the payment of a hospital no-fault billing, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated October 24, 1994, which, inter alia, granted the defendant’s motion for summary judgment. .
Ordered that the order is affirmed, with costs.
The plaintiff’s assignor exhausted his $50,000 no-fault policy limits (see, Presbyterian Hosp. v Empire Ins. Co., 220 AD2d 733 [decided herewith]). The plaintiff contends that the defendant insurance carrier’s failure to deny the instant claim precluded
p. 734
it from asserting the exhaustion of the policy limits as a defense. However, when, as here, a carrier "has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Presbyterian Hosp. v Liberty Mut. Ins. Co., 216 AD2d 448 ; see also, Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835 , 837). Further, "the failure to disclaim coverage does not create coverage which the policy was not written to provide” (Zappone v Home Ins. Co., 55 NY2d 131 , 134), "since that defense is never waived by a failure to assert it in a notice of disclaimer” (Schiff Assocs. v Flack, 51 NY2d 692 , 700; see, Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 168 AD2d 121 ). Accordingly, the court properly granted the defendant’s motion for summary judgment. Rosenblatt, J. P., Pizzuto, Altman and Hart, JJ., concur.
Cases cited
- Champagne v. State Farm Mutual Automobile Insurance 185 AD2d 835 at 837 p. 734
- Zappone v. Home Insurance 55 NY2d 131 at 134 p. 734
- Albert J. Schiff Associates, Inc. v. Flack 51 NY2d 692 at 700 p. 734
- Liberty Mutual Insurance v. Aetna Casualty & Surety Co. 168 AD2d 121 p. 734