Rosen v. Levin

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

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.