Presbyterian Hospital v. Empire Insurance

Appellate Division of the Supreme Court of New York

Presbyterian Hospital v. Empire Insurance

220 A.D.2d 733, 633 N.Y.S.2d 340

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 30, 1995

StatusPublished

This text of 220 A.D.2d 733 (Presbyterian Hospital v. Empire Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Presbyterian Hospital v. Empire Insurance, 220 A.D.2d 733, 633 N.Y.S.2d 340 (N.Y. Ct. App. 1995).

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Opinion

—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 [734]*734it 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.

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—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 [734]*734it 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.

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Bluebook (online)

220 A.D.2d 733, 633 N.Y.S.2d 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/presbyterian-hospital-v-empire-insurance-nyappdiv-1995.

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