Opinion
December 20, 1977
Motion, insofar as it seeks leave to appeal to the Court of Appeals granted; motion, insofar as it seeks reargument, granted to the extent of withdrawing the memorandum decision filed with the order of this court entered on September 29, 1977 ( 59 A.D.2d 612), and substituting a new memorandum decision therefor, as follows: Judgment, Supreme Court, New York County, entered April 13, 1976, dismissing the complaint after trial, is unanimously affirmed, with costs, for the reasons stated by Schackman, J., at Trial Term. We add only, with respect to the claim that defendant insurance company's lateness in disclaiming precludes it from disputing coverage on principles of waiver and estoppel, that as this court observed in Simpson v Phoenix Mut. Ins. Co. ( 30 A.D.2d 265, 268, affd 24 N.Y.2d 262): "it is settled law that waiver or estoppel may not be invoked to create insurance coverage where none exists under the policy as written". The memorandum decision of this court herein released September 29, 1977 ( 59 A.D.2d 612), is withdrawn.
Concur — Silverman, J.P., Evans, Capozzoli and Lynch, JJ.