OGC Opinion No. 07-06-08

The Office of General Counsel issued the following opinion on June 13, 2007, representing the position of the New York State Insurance Department.

RE: Reconsideration of Insurance Department Opinion Letters and Judicial Review of Department Determinations

Questions Presented:

1. May an inquirer request that the Insurance Department reconsider an opinion letter issued by its Office of General Counsel?

2. Which determinations made by the Insurance Department are subject to judicial review pursuant to Article 78 of the New York Civil Practice Law and Rules (McKinney 2006 and Supp. 2007)?

Conclusions:

1. Yes. An inquirer may request that the Insurance Department reconsider an opinion letter that its Office of General Counsel has issued.

2. Pursuant to N.Y. Ins. Law § 326 (McKinney 2006) and governing precedent, any final order, decision, determination, or regulation of the Insurance Department is subject to judicial review under Article 78.

Facts:

The inquiry is of a general nature, without reference to particular facts.

Analysis:

With regard to the inquirer’s first question, an inquirer may at any time request that the Insurance Department reconsider an opinion letter that it has issued. All requests for reconsideration should be directed to the Office of General Counsel, New York State Insurance Department, 25 Beaver St., New York, N.Y. 10004 or [email protected]. Any request for reconsideration should be accompanied by a discussion of why the Department should reconsider its opinion. Any requests for reconsideration made by a law firm or legal counsel should also be accompanied by a legal analysis.

As to the inquirer’s second question about what agency actions are subject to Article 78 review, Insurance Law § 326 states in relevant part that:

See also Eadie v. Town Bd. of Town of North Greenbush, 7 N.Y.3d 306, 316 (2006) (“an article 78 proceeding brought to review a determination by a body or officer ‘must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner’”); See Matter of City of New York (Grand Lafayette Props. LLC), 6 N.Y.3d 540, 547 (2006) (“an article 78 proceeding ‘must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner’”); See Matter of Ramos v. New York City Dept. of Correction, 30 A.D.3d 1136, 1136-37 (1st Dep’t 2006) (“even if the administrative determination had been ripe for challenge, a CPLR article 78 proceeding must be commenced within four months after the determination becomes final and binding”).

Please note that opinion letters are not orders, regulations, or decisions within the meaning of Insurance Law § 326. Rather, an opinion letter merely explains the Department’s policies, and the ways in which the Department interprets and enforces the Insurance Law, but it is not itself reviewable.

For further information you may contact Assistant Attorney Joana Lucashuk at the New York City Office.