Presbyterian Hospital v. Empire Insurance , 633 N.Y.S.2d 340 ( 1995 )

—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 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.