Opinion
October 30, 1995
Appeal from the Supreme Court, Nassau County (Robbins, J.).
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 A.D.2d 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 A.D.2d 448; see also, Champagne v. State Farm Mut. Auto. Ins. Co., 185 A.D.2d 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 N.Y.2d 131, 134), "since that defense is never waived by a failure to assert it in a notice of disclaimer" (Schiff Assocs. v. Flack, 51 N.Y.2d 692, 700; see, Liberty Mut. Ins. Co. v. Aetna Cas. Sur. Co., 168 A.D.2d 121). Accordingly, the court properly granted the defendant's motion for summary judgment. Rosenblatt, J.P., Pizzuto, Altman and Hart, JJ., concur.