Presbyterian Hospital v. Empire Insurance , 633 N.Y.S.2d 339 ( 1995 )

—In an action pursuant to Insurance Law § 5106 (a) to recover the payment of a hospital no-fault billing, the defendants appeal, as limited by their brief, from stated portions of a judgment of the Supreme Court, Nassau County (Levitt, J.), dated July 5, 1994, which, inter alia, awarded judgment to the plaintiff in the sum of $8,551.74.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which awarded judgment to the plaintiff in the sum of $8,551.74 and substituting therefor a provision awarding judgment to the plaintiff in the sum of $2,206.79; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendants.

Prior to the hospitalization at issue on this appeal, the plaintiff’s assignor had exhausted $47,793.21 of his $50,000 no-fault policy. The plaintiff sued for reimbursement of a hospital bill in the amount of $8,551.74. The Supreme Court found that the defendants were precluded from raising the defense of exhaustion of the policy limits because the defendants failed to deny the claim. However, it was error to award judgment to the plaintiff for the full amount of the bill since "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; see, Schiff Assocs. v Flack, 51 NY2d 692, 700). The defendants cannot be held liable for benefits that exceed the amount contracted for in the policy. Rosenblatt, J. P., Pizzuto, Altman and Hart, JJ., concur.