Opinion
October 22, 1984
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Order modified, on the law, by adding a provision thereto declaring that defendant has no liability to plaintiff under policy number WA-9030. As so modified, order affirmed, without costs or disbursements.
The individual major medical policy in issue expressly permitted the defendant to decline renewal under specified conditions, which have been met, and since it provides that "[a]n Eligible Medical Expense shall be deemed to be incurred as of the date of the treatment giving rise to the charge or as of the date of purchase of the supply or service covered by the charge", defendant can have no liability for expenses incurred after the policy has expired.
Unlike Danzig v Dickman ( 53 N.Y.2d 926), the policy in issue is not ambiguous and its terms must be given effect as written ( Government Employees Ins. Co. v Kligler, 42 N.Y.2d 863). Plaintiff has been deprived of no vested rights under the expired policy.
Moreover, plaintiff knowingly and voluntarily entered into a new contract which provided for a coordination of benefits with Blue Cross/Blue Shield. What plaintiff thus seeks is the right to recover for the same expense from two sources which, in our view, is inconsistent "with the policy of this State to co-ordinate benefits and avoid overinsurance or duplication of coverage" ( Dudley v Blue Cross, 63 A.D.2d 813).
Rather than simply granting summary judgment, however, a declaration should have been made in defendant's favor (see Lanza v Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74, cert. den. 371 U.S. 901) and we modify accordingly.
The remaining causes of action were properly dismissed because plaintiff has not provided defendant with the "proof of loss" required by the policy ( Lentini Bros. Moving Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 N.Y.2d 835; Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 A.D.2d 878). Titone, J.P., Bracken, Boyers and Lawrence, JJ., concur.