OGC Op. No. 07-07-21
The Office of General Counsel issued the following opinion on July 24, 2007, representing the position of the New York State Insurance Department.
Maximum Age Limitation for Directors
Does the New York Insurance Law or the regulations promulgated thereunder impose a rule that no person who has reached the age of 70 shall be nominated for election or re-election as a director of an insurer?
No. Neither the Insurance Law nor regulations promulgated thereunder impose a maximum age limitation on who may serve as a director of an insurer.
The question is of a general nature, without reference to particular facts.
There are several provisions of the New York Insurance Law that set out requirements for directors for insurers, but none include a maximum age restriction for directors. N.Y. Ins. Law § 1201 (a)(5)(B)(vi) (McKinney 2006) requires the charter of a stock or mutual insurer to contain a “provision that each director shall be at least eighteen years of age and that at all times a majority shall be citizens and residents of the United States, and not less than two shall be residents of this state.” Pursuant to Insurance Law § 1201(b), this section does not apply to co-operative fire insurance companies, fraternal benefit societies, or corporations organized pursuant to articles 43 (non-profit health plans) and 67 (non-profit property and casualty insurance companies). Insurance Law § 6402(e) limits service as a director of a title insurer to citizens of the United States, and requires a majority of the directors to be citizens and residents of New York State.
Nor is there a maximum age restriction for directors set forth in the Business Corporation Law. Business Corporation Law § 701 (McKinney 2003) provides that a director “shall be at least eighteen years of age,” and Insurance Law § 108 sets out the applicability of provisions of the Business Corporation Law to insurers.
The Department is not in the position to render an opinion about whether a maximum age restriction for directors conflicts with federal or state anti-discrimination law or other laws; the Department’s purview is generally limited to interpreting the Insurance Law.
In sum, there is no maximum age restriction for service on an insurer’s board of directors pursuant to the Insurance Law or the regulations promulgated thereunder.
For further information you may contact Associate Counsel Alexander Tisch at the New York City Office.