Global Liberty Ins. Co. of N.Y. v Spine Consultation NJ, P.C., 2018 NY Slip Op 08748 (1st Dept. 2018)
Had one of those weeks – I felt like the partner whose affirmation could not prove anything. This case stemmed from what was probably an oversight on DFS’ part. Historically, DFS always told us when a change on the regulations would take place. For the first time that I can recall, a regulation did not contain this language,
There was also case law suggesting this type of circumstance, i.e. a regulation or statute can have retroactive application. You can read my motions papers – they are online. My brief parroted, in pertinent part, my motion papers. But the Court was not ready to give us another Unitrin moment.
“The court correctly denied plaintiff’s motion, interpreting Department of Financial Services Regulations (11 NYCRR) § 68.6(b)(1), amended effective January 23, 2018, to apply prospectively. The regulations do not indicate that they apply retroactively, and the law is settled that retroactivity is not imputed where not expressly stated (Bowen v Georgetown Univ. Hosp., 488 US 204, 208 [1988]; Matter of Rudin Mgt. Co. v Commissioner of Dept. of Consumer Affairs of City of N.Y. , 213 AD2d 185, 185 [1st Dept 1995]).”
