
    American Insurance Association et al., Appellants, v Roderick Chu, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Argued January 2, 1985;
    decided February 21, 1985
    
      POINTS OF COUNSEL
    
      Robert S. Smith and Shari L. Patrick for appellants.
    I. Chapter 55 is an unconstitutional impairment of the State’s contracts. (United States Trust Co. v New Jersey, 431 US 1; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Patterson v Carey, 41 NY2d 714; Energy Reserves Group v Kansas Power & Light, 459 US 400; Mason v Cronk, 125 NY 496; Allied Structural Steel Co. v Spannaus, 438 US 234.) II. Chapter 55 constitutes a taking of property without just compensation or due process. (Chicago, Burlington & R.R. v Chicago, 166 US 226; Matter of Pocoroba v State Ins. Fund, 253 App Div 407; Mobil Oil Corp. v Rubenfeld, 72 Misc 2d 392, 48 AD2d 428; Quinn; Syracuse Model Neighborhood Corp., 613 F2d 438; In re Bajardi, 8 F2d 551, 9 F2d 797, cert denied sub nom. New York v Wilson, 270 US 651; Webb’s Fabulous Pharmacies v Beckwith, 449 US 155; Story v New York El. R.R. Co., 90 NY 122; Penn Cent. Transp. Co. v New York City, 438 US 104; Armstrong v United States, 364 US 40; Joslin Mfg. Co. v Providence, 262 US 668.)
    
      Robert Abrams, Attorney-General (Richard G. Liskov, Robert Hermann and Peter H. Schiff of counsel), for Roderick Chu and another, respondents.
    I. Because appellants have totally failed to show that the challenged enactment has had, or will have, any actual effect upon them, the court should decline to render a declaratory judgment. (Combustion Eng. v Travelers Indem. Co., 75 AD2d 777, 53 NY2d 875; Connor v Siebert, 83 AD2d 698, 56 NY2d 676; Park Ave. Clinical Hosp. v Kramer, 26 AD2d 613,19 NY2d 958; Communist Party v Control Bd., 367 US 1; O’Shea v Littleton, 414 US 488.) II. Assuming arguendo a justiciables controversy, appellants have failed to prove unconstitutionally beyond a reasonable doubt by showing contract rights in the
    
      three funds as a whole. (Cook v City of Binghamton, 48 NY2d 323; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Cammardo v Board ofEduc., 79 AD2d 864; Matter of Jensen v Southern Pac. Co., 215 NY 514, 244 US 205; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Montgomery v Daniels, 38 NY2d 41; People v Roper, 35 NY 629; Matter of Moore v Gallup, 267 App Div 64, 293 NY 846; Allied Structural Steel v Spannaus, 438 US 234; Lynch v United States, 292 US 571.) III. Because appellants lack a property interest in each fund as a whole no unconstitutional deprivation has occurred. (Noble State Bank v Haskell, 219 US 104; Roth v Board of Regents, 408 US 564; Downer v Church, 44 NY 647; Matter of Folsom, 6 AD2d 691, 6 NY2d 886; Matter of Gagliardi, 55 NY2d 109; Matter of Totten, 179 NY 112; Matter of Cahill v Tremaine, 245 App Div 773, 269 NY 573; Matter of State Ins. Fund v Boyland, 282 App Div 516, 309 NY 1009; Travelers Indem. Co. v State of New York, 33 AD2d 127, 28 NY2d 561; F.H.A. v Darlington, Inc., 358 US 84; Middleton v Texas Power & Light Co., 249 US 152.)
    
      Andrew S. Fisher, Raymond C. Green and Harold L. Fisher for Martin A. Fischer and others, respondents.
   OPINION OF THE COURT

Meyer, J.

The “justiciable controversy” upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs. Because the controversies involved in the present action are not ripe for determination, the order of the Appellate Division should be modified by striking the declaration and dismissing the complaint and, as so modified, should be affirmed, without costs.

The purpose of the present action is to obtain judgment declaring unconstitutional section 92 of chapter 55 of the Laws of 1982, insofar as it directs transfer into the State’s general fund of .$50 million from the Aggregate Trust Fund (ATF), $67 million from the Stock Workers’ Compensation Security Fund (SWCF) and $87 million from the Property and Liability Insurance Security Fund (PLIS) and enjoining such transfers or requiring return of the funds if transferred. The ATF, established by Workers’ Compensation Law § 27, is a fund into which an employer or compensation carrier may (in some cases must) pay the present value of future periodic benefits payable to compensation claimants and be thereby discharged from further liability to the claimant. Workers’ Compensation Law § 27 (6) provides that the fund “shall be kept separate and apart from all other moneys of the state fund”. The SWCF, established by article 6-A of the Workers’ Compensation Law, was created to protect those entitled to compensation benefits against the insolvency of a stock insurer. It is funded by payments from stock carriers, which are, however, suspended once the fund reaches $84 million (Workers’ Compensation Law § 109). The PLIES, created by Insurance Law § 334, serves a similar function with respect to specified types of property and liability insurers, is funded by payments from such carriers, and contains a similar provision suspending carrier payments. As to both the SWCF and the PLIS, the governing statute directs that the fund “shall be separate and apart from any other fund so created and from all other state moneys, and the faith and credit of the state of New York is pledged for its safekeeping” (Workers’ Compensation Law § 109-b [1]; Insurance Law § 333 [6]).

Sections 84, 88 and 90 of chapter 55 make “dry appropriations” to each of the three funds equal to or greater than the amount transferred under section 92 and provide in each case that the appropriation thus made “shall be deemed an asset” of the fund and that the transfer from the fund to the State’s general fund shall be deemed a prudent investment. The “dry appropriation” requires inclusion in each year’s budget bill for the next fiscal year of an amount equal to the amount transferred by each find to the State’s general fund and provides that if in any year the Governor fails to do so or the Legislature fails to appropriate the specified amount, the amount appropriated for the preceding fiscal year be paid forthwith to the fund. Section 93 of the act requires that any action relative to the foregoing be brought against the State and holds harmless every State officer, as well as persons employed by or who advise such an officer, from liability by reason of the transfers directed or actions mandated by other provisions of the act. Chapter 404 of the Laws of 1982 made the necessary appropriations to each of the three funds for 1982, but provided as to the SWCF and PLÉS that no expenditure be made from the appropriation if other assets of the fund are available, and as to the ATF that no expenditure be made if other assets not part of reserves for claims or losses are available.

The plaintiffs are three trade associations of insurance companies, 13 property and casualty insurers, two policyholders of such insurers, and three beneficiaries of the ATF. The defendants are the Commissioner of Taxation and Finance, custodian of the PLIS and SWCF, the Superintendent of Insurance, who is charged with administering those two funds, and the Commissioners of the State Insurance Fund (SIF), who are custodians of and charged with administration of the ATF. The SIF Commissioners served an answer containing a cross claim asking that the court declare whether chapter 55 as it relates to the ATF is constitutional. The other two defendants served a separate answer alleging a number of affirmative defenses, including that the complaint lacked specificity as to the nature and extent of plaintiffs’ injury.

Plaintiffs moved for summary judgment and defendants other than the SIF Commissioners cross-moved for like relief. The papers on the cross motion established, and plaintiffs do not dispute, that the ATF, after transfer of the $50 million to the general fund, will still have $13 million in surplus funds over and above all claims, expenses and reserves; that the PLIS held $212 million and would on February 1, 1983 receive an additional $21 million and since 1977 had annual income in excess of the claims submitted in any year; and that the SWCF had a balance of $78 million before transfer pursuant to chapter 55 and in the 50 years of its existence had only been required to pay claims totaling $2 million. Special Term, holding that, “No real and present controversy exists,” denied plaintiffs’ motion, granted defendants’ cross motion and dismissed the complaint. On appeal the Appellate Division concluded that plaintiffs had standing but that chapter 55 was constitutional and, therefore, modified Special Term’s order to so declare and to strike the provision dismissing the complaint.

The declaration against plaintiffs should be stricken and the complaint dismissed. That plaintiffs may have sufficient interest in the funds to be accorded standing to maintain the action is but part of the equation. The action is premature and as a matter of law may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur (Combustion Eng. v Travelers Indem. Co., 53 NY2d 875, affg 75 AD2d 777; New York Public Interest Research Group v Carey, 42 NY2d 527; Park Ave. Clinical Hosp. v Kramer, 19 NY2d 958, affg 26 AD2d 613; Prashker v United States Guar. Co., 1 NY2d 584; see, Borchard, Declaratory Judgments, at 56-58 [2d ed]; 1 Anderson, Actions for Declaratory Judgments § 9, at 50-51 [2d ed]). That the balance in each of the funds has been reduced by the transfers directed by section 92 creates no risk that plaintiffs paid from the ATF will not be paid or that the plaintiffs interested in the other two funds will be left unprotected by insolvency of a carrier in view of the appropriations made by sections 84, 88 and 90 and by chapter 404. Plaintiffs argue that they are insufficiently protected because a subsequent Legislature may omit the required appropriation for a given year and repeal both the prior year’s appropriation and the provisions of chapter 55 directing that annual appropriations be made. The possibility of that combination occurring, however, is just such a future event beyond the control of the parties to the action which may never occur as the above cited cases put beyond the reach of a declaratory judgment. Moreover, the possibility that because the SWCF and PLIS will, as a result of the transfers, be earning less interes t, plaintiffs may be required to contribute additional moneys to those funds is nothing more than speculation in light of the history of the funds. Finally, neither United States Trust Co. v New Jersey (431 US 1) nor Patterson v Carey (41 NY2d 714), relied on by plaintiffs, requires a different conclusion. Neither dealt with the issue of ripeness, but on that question the Supreme Court’s notation that there was an impairment of cor.tract because the repealed covenant was not “replaced by an arguably comparable security provision” (431 US, at p 19) appears, by analogy, to support the conclusion here reached.

Accordingly, the order of the Appellate Division should be modified by striking the declaration and dismissing the complaint and, as so modified, should be affirmed, without costs.

Chief Judge Wachtler and Judges Jasen, Simons and Kaye concur; Judge Alexander taking no part.

Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs. 
      
       [2] We have not overlooked the fact that the Commissioner of Taxation and Finance and the Superintendent of Insurance are nonappealing parties, and would not be entitled to affirmative relief were this not a declaratory judgment action (see, Hecht v City of New York, 60 NY2d 57). The relief granted here is incidental to the restraint upon the court against rendering an advisory determination. Having concluded that the controversy is nonjusticiable, the court cannot allow the declaration to stand.
     