
    In the Matter of Herbert C. Haber, Petitioner, against Superintendent of Insurance of the State of New York, Respondent.
    Supreme Court, Special Term, New York County,
    February 4, 1959.
    
      Hood é Schwarts for petitioner.
    
      Louis J. Lefkowits, Attorney-General, for respondent.
   Samuel H. Hofstadter, J.

Respondent has cross-moved for dismissal of the petition. Petitioner is a licensed agent under sections 114' and 115 of the Insurance Law. He complains of section 8 of regulation 27b, which, if enforced against him, will adversely affect his business. He contends that the regulation is legislative, arbitrary and in excess of jurisdiction, and has brought this article 78 proceeding for its review and for a temporary injunction. The sole contention raised in support of the cross motion is that the petition is insufficient in law, in that an action for declaratory judgment is the proper remedy rather than a proceeding for review, in the absence of any specific action taken in pursuance of the regulation.

Prior to its amendment, effective April 20, 1956, the first sentence of section 34 of the Insurance Law read: “ Whenever by the provisions of this chapter any order or other act of the superintendent is declared to be subject to judicial review at the suit of any person, such person may maintain a proceeding under article seventy-eight of the civil practice act.” (Italics supplied.)

Hpon its amendment, it now reads: “Notwithstanding the specific enumerations of the right to judicial review in this chapter, any order, regulation or decision of the superintendent is declared to be subject to judicial review as permitted in a proceeding under article seventy-eight of the civil practice act.” (Italics supplied.) This legislative action was suggested in the opinion of Fuld, J., in Matter of Guardian Life Ins. Co. v. Bohlinger (308 N. T. 174,183).

The point of the suggestion that the amendment did not alter the character of an article 78 proceeding escapes the court. It is enough that the Legislature has declared that an article 78 proceeding is available where a regulation is the subject of the review sought. The amendment does not require that only action taken in pursuance of the regulation be thus reviewed. If that were the intent, the object would have been attained by provision for review of any order or decision and without the inclusion of a regulation.

The cross motion is denied, with leave to the respondent to answer within 10 days.  