Electronic Realty Associates, Inc. v. Lennon , 413 N.Y.S.2d 728 ( 1979 )

— In an action for a declaratory judgment and injunctive relief, the defendant appeals from so much of an order of the Supreme Court, Dutchess County, dated May 1, 1978, as (1) in part, denied his motion to dismiss the complaint or, in the alternative, for summary judgment, and (2) in part, granted the plaintiffs’ cross motion for summary judgment by (a) declaring that (i) the plaintiffs’ buyer protection plan is not an insurance contract within the meaning of the Insurance Law, (ii) the offer, issuance, and sale of the buyer protection plan "does not constitute an insurance business” and (iii) the defendant has no authority to require plaintiff Electronic Realty Associates to qualify as an insurer or to procure a license, and (b) permanently enjoining the defendant from interfering in the plaintiffs’ business. Order modified, on the law, by deleting the third and fourth decretal paragraphs thereof and substituting therefor a provision denying summary judgment to the plaintiffs with respect to the granting of a permanent injunction and dismissing the complaint insofar as it seeks a permanent injunction. As so modified, order affirmed insofar as appealed from, without costs or disbursements. We find that the plaintiff Electronic Realty Associates was not "doing an insurance business” within the meaning of section 41 (subd 3, par [b]) of the Insurance Law. Thus, the plaintiffs are not subject to the requirements of the Insurance Law, and their request for declaratory relief was properly granted. However, the granting of a permanent injunction was unnecessary since the court’s declaration gives the plaintiffs all the protection they need. If, in the opinion of the defendant Superintendent of Insurance, the sale by the plaintiffs of the buyer protection plan should in the future reach the level of "doing an insurance business”, he should not be hampered by an outstanding injunction in seeking relief. Rabin, J. P., Shapiro, Cohalan and Martuscello, JJ., concur. [94 AD2d 249.]