Opinion
May 30, 1995
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicci v Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
It is well established that when the provisions of an insurance contract are ambiguous, they must be construed against the insurer (see, Breed v Insurance Co. of N. Am., 46 N.Y.2d 351, 353; Horowitz v Threadneedle Ins. Co., 194 A.D.2d 589). Additionally, "[t]he burden of proving that a claim falls within the exclusions of an insurance policy rests with the insurer" (Neuwirth v Blue Cross Blue Shield, 62 N.Y.2d 718, 719; see, Horowitz v Threadneedle Ins. Co., supra).
The appellant acknowledged that Werner Knoblich's admission to the plaintiff hospital was medically necessary. It paid for Mr. Knoblich's hospital stay from November 23, 1983, until January 7, 1984, and refused to pay for the remainder of his hospital stay, on the ground that "the balance of the stay was concerned with care which did not require acute general hospitalization". Thus, the Supreme Court correctly concluded that the appellant relied upon the "Non-Acute Hospital Care" exclusion in Mr. Knoblich's policy. However, the appellant failed to establish that Mr. Knoblich's hospital stay after January 7, 1984, fell within that exclusion. Pizzuto, J.P., Joy, Friedmann and Goldstein, JJ., concur.