(dissenting). I respectfully dissent. It is indisputable that the coverage under this insurance contract for the cost of in-patient hospital care expressly incorporates the policy’s definition of “hospital”. Under that definition, Gaylord Hospital and New Britain Memorial Hospital must each be a “short term, *545acute, general hospital”, meeting “all” of seven additional criteria. Because satisfying all of the various definitional standards is a prerequisite of coverage, Trial Term erroneously treated the issue as one where the insurer had the burden of proving that the claim came within a policy exclusion. Rather, plaintiffs had the burden of proving that Gaylord and New Britain Memorial Hospitals qualified under all of the characteristics set forth in the definition (Zuckerberg v Blue Cross, 108 AD2d 56; Breslow v Manhattan Life Ins. Co., 36 AD2d 676, lv denied 29 NY2d 482; see, Taylor v Phoenix Mut. Life Ins. Co., 453 F Supp 372).
It is equally clear that plaintiffs failed to prove that Gaylord and New Britain Memorial Hospitals qualified under several of the criteria contained in the definition of a covered hospital, namely, (1) the two hospitals do not provide acute, short-term care, are not licensed to provide such care and in some respects are incapable of providing such care (e.g., neither has emergency room facilities); (2) neither hospital is “primarily engaged” in providing both diagnostic and therapeutic services, since each is primarily a chronic disease facility; and (3) neither hospital has an organized department of major surgery. Trial Term avoided addressing these shortcomings in plaintiffs’ proof by erroneously shifting the risk of nonpersuasion to defendant and by finding that plaintiffs established “substantial compliance” with the terms of the policy. However, Trial Term’s reliance on substantial compliance to establish conformity with the policy’s definition of “hospital” is inconsistent with recent New York precedent and with the prevailing weight of authority in other jurisdictions (see, Zuckerberg v Blue Cross, supra, and cases cited therein).
In short, the operative words contained in the policy’s definition of “hospital” are precise and definite in meaning and courts are obligated to enforce them as such rather than to rewrite the terms of the policy in accordance with their own notions of what may be equitable as between the parties (Breed v Insurance Co., 46 NY2d 351, 355; Government Employees Ins. Co. v Kligler, 42 NY2d 863, 864). Indeed, no one has asserted that the language of the qualifying definition is ambiguous, and, in this regard, it should be noted that the policy repeats verbatim the definition of “hospital” contained in the State Insurance Department’s regulation governing the form for New York health insurance policies, inclusive of major medical coverage (11 NYCRR 52.2 [m]).
The majority, however, purports to find an ambiguity in the contract of insurance because of an apparent conflict between its definition of “hospital” as a “short term, acute, general hospital” *546and the fact that it is a major medical policy designed to provide benefits beyond the basic, 21-day Blue Cross coverage and is unlimited as to length of hospitalization or cost up to $1,000,000. This position, however, misreads the scope of the benefits provisions of the policy and is based on an assumption not supported in the record. First, the enumerated coverage extends to medical expenses other than those for hospitalization. Second, the coverage applies to a particular sickness, including any recurrence thereof, and is not tied to a single, continuous period of hospitalization. Thus, under any number of conceivable scenarios, there is extensive scope for use of major medical coverage under the policy.
Finally, the majority’s conclusion that the limitations arising out of the restrictive definition of “hospital” render the policy’s major medical hospital benefits of no utility presumes that extended confinement in a short-term, acute, general hospital cannot occur. There is no evidence in the record to this effect. The testimony that average length of stay in an acute care hospital is less than the 21-day threshold period misses the point and, in any event, is the kind of extrinsic evidence which cannot be used to prove that the parties intended something at variance with the clear meaning of the words of their agreement or to create an ambiguity where none otherwise existed (Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456, 460). Perhaps that evidence might have had some relevance if plaintiffs had sought reformation of the insurance contract. Having failed to do so, they are bound by the limitations in coverage contained in the expressed wording of the policy.
For the foregoing reasons, I vote to reverse the judgment entered in favor of plaintiffs and would dismiss the complaint.