Rosen v. Levin

259 A.D.2d 395, 687 N.Y.S.2d 112, 1999 N.Y. App. Div. LEXIS 3005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1999
• Status: Published

Opinion

Determination of respondent Superintendent, dated October 21, 1997, finding that petitioner broker violated provisions of the Insurance Law and Regulations and imposing a $7,500 civil penalty, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Louise Gruner Gans, J.], entered on or about April 14, 1998) dismissed, without costs.

Accepting the credibility determinations of the Hearing Officer (Matter of Berenhaus v Ward, 70 NY2d 436, 443), the record provides substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179) that petitioner, a licensed excess line broker, violated Insurance Law §§ 2105 and 2118 and Insurance Department Regulation 41 (11 NYCRR 27.21) by filing excess line affidavits on behalf of a producing broker unlicénced to procure excess line coverage; that petitioner violated Insurance Law § 2118 (c) and Insurance Department Regulation 41 by failing to maintain “a complete and separate record” regarding excess coverage procured; and that petitioner violated Insurance Law § 2120 and Insurance Department Regulation 29 (11 NYCRR 20.3 [b] [4]) by improperly utilizing a single checking account for the deposit of premiums and payment of operating expenses. In connection with the finding that petitioner violated the Insurance Law and Insurance Department Regulations in a manner referenced in a Department Circular Letter as “fronting”, since the Department’s interpretation of the applicable law and regulations is neither “irrational [n]or unreasonable”, it will not be disturbed (Matter of Howard v Wyman, 28 NY2d 434, 438; accord, Matter of Bernstein v Toia, 43 NY2d 437, 448). Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.