S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    651
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by M. of A. D. ROSENTHAL, DICKENS, L. ROSENTHAL, SIMON, NIOU
   -- Multi-Sponsored by --  M.  of  A.  BLANKENBUSH  --  read  once  and
   referred to the Committee on Insurance
 
 AN ACT to amend the insurance law, in relation to electronic delivery of
   property/casualty insurance notices

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The insurance law is amended by adding a new  section  3457
 to read as follows:
   § 3457. ELECTRONIC NOTICES AND DOCUMENTS. (A) AS USED IN THIS SECTION,
 THE FOLLOWING WORDS SHALL HAVE THE FOLLOWING MEANINGS:
   (1) "DELIVERED BY ELECTRONIC MEANS" INCLUDES:
   (A)  DELIVERY  TO  AN  ELECTRONIC  MAIL  ADDRESS  AT WHICH A PARTY HAS
 CONSENTED TO RECEIVE NOTICES OR DOCUMENTS; OR
   (B) POSTING ON AN ELECTRONIC NETWORK OR SITE ACCESSIBLE VIA THE INTER-
 NET, MOBILE APPLICATION, COMPUTER, MOBILE DEVICE, TABLET, OR  ANY  OTHER
 ELECTRONIC  DEVICE,  TOGETHER  WITH SEPARATE NOTICE OF THE POSTING WHICH
 SHALL BE PROVIDED BY ELECTRONIC MAIL TO THE ADDRESS AT WHICH  THE  PARTY
 HAS CONSENTED TO RECEIVE NOTICE OR BY ANY OTHER DELIVERY METHOD THAT HAS
 BEEN CONSENTED TO BY THE PARTY.
   (2)  "PARTY" MEANS ANY RECIPIENT OF ANY NOTICE OR DOCUMENT REQUIRED AS
 PART OF A PROPERTY/CASUALTY INSURANCE  TRANSACTION,  INCLUDING  BUT  NOT
 LIMITED TO AN APPLICANT, AN INSURED, OR A POLICYHOLDER.
   (3)  "CLICKWRAP AGREEMENT" MEANS A DIGITAL PROMPT THAT OFFERS INDIVID-
 UALS THE OPPORTUNITY TO ACKNOWLEDGE RECEIPT OF AN ELECTRONIC DOCUMENT.
   (B) SUBJECT TO THE REQUIREMENTS OF THIS SECTION, ANY NOTICE TO A PARTY
 OR  ANY  OTHER   DOCUMENT   REQUIRED   UNDER   APPLICABLE   LAW   IN   A
 PROPERTY/CASUALTY  INSURANCE TRANSACTION OR THAT IS TO SERVE AS EVIDENCE
 OF PROPERTY/CASUALTY INSURANCE COVERAGE MAY BE  DELIVERED,  STORED,  AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05115-01-1

 A. 651                              2
 
 PRESENTED  BY  ELECTRONIC  MEANS SO LONG AS IT MEETS THE REQUIREMENTS OF
 ARTICLE THREE OF THE STATE TECHNOLOGY LAW.
   (C)  DELIVERY  OF A NOTICE OR DOCUMENT IN ACCORDANCE WITH THIS SECTION
 SHALL BE CONSIDERED EQUIVALENT TO ANY  DELIVERY  METHOD  REQUIRED  UNDER
 APPLICABLE  LAW,  INCLUDING  DELIVERY  BY  FIRST CLASS MAIL; FIRST CLASS
 MAIL, POSTAGE PREPAID; CERTIFIED MAIL; CERTIFICATE OF MAIL;  OR  CERTIF-
 ICATE OF MAILING.
   (D)  A  NOTICE  OR DOCUMENT MAY BE DELIVERED BY ELECTRONIC MEANS BY AN
 INSURER TO A PARTY UNDER THIS SECTION IF:
   (1) THE PARTY HAS AFFIRMATIVELY CONSENTED TO THAT METHOD  OF  DELIVERY
 AND HAS NOT WITHDRAWN THE CONSENT;
   (2)  THE  PARTY,  BEFORE  GIVING CONSENT, IS PROVIDED WITH A CLEAR AND
 CONSPICUOUS STATEMENT INFORMING THE PARTY OF:
   (A) THE RIGHT OF THE PARTY TO WITHDRAW CONSENT TO  HAVE  A  NOTICE  OR
 DOCUMENT  DELIVERED BY ELECTRONIC MEANS, AT ANY TIME, AND ANY CONDITIONS
 OR CONSEQUENCES IMPOSED IN THE EVENT CONSENT IS WITHDRAWN;
   (B) THE TYPES OF NOTICES AND DOCUMENTS TO WHICH  THE  PARTY'S  CONSENT
 WOULD APPLY;
   (C)  THE  RIGHT  OF  A PARTY TO HAVE A NOTICE OR DOCUMENT DELIVERED IN
 PAPER FORM; AND
   (D) THE PROCEDURES A PARTY MUST FOLLOW TO WITHDRAW CONSENT TO  HAVE  A
 NOTICE  OR  DOCUMENT  DELIVERED  BY  ELECTRONIC  MEANS AND TO UPDATE THE
 PARTY'S ELECTRONIC MAIL ADDRESS;
   (3) THE PARTY:
   (A) BEFORE GIVING CONSENT, IS PROVIDED WITH A STATEMENT OF  THE  HARD-
 WARE  AND  SOFTWARE REQUIREMENTS FOR ACCESS TO AND RETENTION OF A NOTICE
 OR DOCUMENT DELIVERED BY ELECTRONIC MEANS; AND
   (B) CONSENTS ELECTRONICALLY, OR CONFIRMS CONSENT ELECTRONICALLY, IN  A
 MANNER  THAT  REASONABLY DEMONSTRATES THAT THE PARTY CAN ACCESS INFORMA-
 TION IN THE ELECTRONIC FORM THAT WILL BE USED FOR NOTICES  OR  DOCUMENTS
 DELIVERED  BY  ELECTRONIC MEANS AS TO WHICH THE PARTY HAS GIVEN CONSENT;
 AND
   (4) AFTER CONSENT OF THE PARTY IS GIVEN, THE INSURER, IN THE  EVENT  A
 CHANGE  IN  THE  HARDWARE  OR  SOFTWARE REQUIREMENTS NEEDED TO ACCESS OR
 RETAIN A NOTICE OR DOCUMENT DELIVERED  BY  ELECTRONIC  MEANS  CREATES  A
 MATERIAL  RISK  THAT  THE  PARTY  WILL NOT BE ABLE TO ACCESS OR RETAIN A
 SUBSEQUENT NOTICE OR DOCUMENT TO WHICH THE CONSENT APPLIES:
   (A) PROVIDES THE PARTY WITH A STATEMENT THAT DESCRIBES:
   (I) THE REVISED HARDWARE AND SOFTWARE REQUIREMENTS FOR ACCESS  TO  AND
 RETENTION OF A NOTICE OR DOCUMENT DELIVERED BY ELECTRONIC MEANS; AND
   (II) THE RIGHT OF THE PARTY TO WITHDRAW CONSENT WITHOUT THE IMPOSITION
 OF  ANY  CONDITION  OR CONSEQUENCE THAT WAS NOT DISCLOSED AT THE TIME OF
 INITIAL CONSENT; AND
   (B) COMPLIES WITH PARAGRAPH TWO OF THIS SUBSECTION.
   (E) (1) ANY ELECTRONIC MAIL BEING SENT BY AN INSURER  TO  A  PARTY  IN
 CONNECTION  WITH THE DELIVERY OF A NOTICE OR DOCUMENT DELIVERED BY ELEC-
 TRONIC MEANS SHALL INCLUDE IN THE SUBJECT  LINE  CLEAR  AND  CONSPICUOUS
 LANGUAGE ALERTING THE RECEIVING PARTY AS TO WHAT TYPE OF NOTICE IS BEING
 DELIVERED TO SUCH PARTY ELECTRONICALLY.
   (2)  ANY  ELECTRONIC  MAIL  BEING  SENT  BY  AN  INSURER TO A PARTY IN
 CONNECTION WITH THE DELIVERY OF A NOTICE OR DOCUMENT DELIVERED BY  ELEC-
 TRONIC  MEANS SHALL CLEARLY AND CONSPICUOUSLY INCLUDE A CLICKWRAP AGREE-
 MENT EMBEDDED INTO THE BODY OF SUCH ELECTRONIC MAIL OR A HYPERLINK LEAD-
 ING TO A CLICKWRAP AGREEMENT WHICH WILL ALLOW FOR THE RECEIVING PARTY TO
 ACKNOWLEDGE RECEIPT OF A NOTICE BEING SENT TO SUCH PARTY BY AN  INSURER.
 IF THE RECEIVING PARTY HAS NOT ACKNOWLEDGE RECEIPT OF SUCH NOTICE PURSU-

 A. 651                              3
 
 ANT  TO  THIS  SECTION  WITHIN  TWO  WEEKS OF SUCH NOTICE BEING SENT, AN
 INSURER SHALL REDELIVER SUCH NOTICE IN PAPER FORM TO SUCH PARTY.
   (F)  THIS  SECTION  DOES NOT AFFECT REQUIREMENTS RELATED TO CONTENT OR
 TIMING OF ANY NOTICE OR DOCUMENT REQUIRED UNDER APPLICABLE LAW.
   (G) IF A PROVISION OF THIS  CHAPTER  OR  APPLICABLE  LAW  REQUIRING  A
 NOTICE  OR DOCUMENT TO BE PROVIDED TO A PARTY EXPRESSLY REQUIRES VERIFI-
 CATION OR ACKNOWLEDGMENT OF RECEIPT  OF  THE  NOTICE  OR  DOCUMENT,  THE
 NOTICE  OR  DOCUMENT  MAY  BE  DELIVERED BY ELECTRONIC MEANS ONLY IF THE
 METHOD USED PROVIDES FOR VERIFICATION OR ACKNOWLEDGMENT OF RECEIPT.
   (H) THE  LEGAL  EFFECTIVENESS,  VALIDITY,  OR  ENFORCEABILITY  OF  ANY
 CONTRACT  OR  POLICY  OF INSURANCE EXECUTED BY A PARTY MAY NOT BE DENIED
 SOLELY BECAUSE OF THE FAILURE TO OBTAIN ELECTRONIC CONSENT OR  CONFIRMA-
 TION  OF  CONSENT  OF  THE  PARTY IN ACCORDANCE WITH SUBPARAGRAPH (B) OF
 PARAGRAPH THREE OF SUBSECTION (D) OF THIS SECTION.
   (I) (1) A WITHDRAWAL OF CONSENT BY A PARTY DOES NOT AFFECT  THE  LEGAL
 EFFECTIVENESS,  VALIDITY,  OR  ENFORCEABILITY  OF  A  NOTICE OR DOCUMENT
 DELIVERED BY ELECTRONIC MEANS TO THE  PARTY  BEFORE  THE  WITHDRAWAL  OF
 CONSENT IS EFFECTIVE.
   (2)  A  WITHDRAWAL OF CONSENT BY A PARTY IS EFFECTIVE WITHIN A REASON-
 ABLE PERIOD OF TIME AFTER RECEIPT OF THE WITHDRAWAL BY THE INSURER.
   (3) FAILURE BY AN INSURER TO COMPLY WITH PARAGRAPH FOUR OF  SUBSECTION
 (D)  AND  SUBSECTION (K) OF THIS SECTION MAY BE TREATED, AT THE ELECTION
 OF THE PARTY, AS A WITHDRAWAL OF CONSENT FOR PURPOSES OF THIS SECTION.
   (J) THIS SECTION DOES NOT APPLY TO A NOTICE OR DOCUMENT  DELIVERED  BY
 AN  INSURER  IN  AN  ELECTRONIC  FORM  BEFORE THE EFFECTIVE DATE OF THIS
 SECTION TO A PARTY WHO, BEFORE THAT DATE, HAS  CONSENTED  TO  RECEIVE  A
 NOTICE OR DOCUMENT IN AN ELECTRONIC FORM OTHERWISE ALLOWED BY LAW.
   (K)  IF THE CONSENT OF A PARTY TO RECEIVE CERTAIN NOTICES OR DOCUMENTS
 IN AN ELECTRONIC FORM IS ON FILE WITH AN INSURER  BEFORE  THE  EFFECTIVE
 DATE  OF  THIS SECTION, AND PURSUANT TO THIS SECTION, AN INSURER INTENDS
 TO DELIVER ADDITIONAL NOTICES OR DOCUMENTS TO SUCH PARTY IN AN ELECTRON-
 IC FORM, THEN PRIOR TO DELIVERING SUCH ADDITIONAL NOTICES  OR  DOCUMENTS
 ELECTRONICALLY, THE INSURER SHALL:
   (1) PROVIDE THE PARTY WITH A STATEMENT THAT DESCRIBES:
   (A)  THE  NOTICES  OR  DOCUMENTS THAT SHALL BE DELIVERED BY ELECTRONIC
 MEANS UNDER THIS SECTION THAT WERE NOT  PREVIOUSLY  DELIVERED  ELECTRON-
 ICALLY; AND
   (B) THE PARTY'S RIGHT TO WITHDRAW CONSENT TO HAVE NOTICES OR DOCUMENTS
 DELIVERED  BY  ELECTRONIC MEANS, WITHOUT THE IMPOSITION OF ANY CONDITION
 OR CONSEQUENCE THAT WAS NOT DISCLOSED AT THE TIME OF INITIAL CONSENT.
   (2) COMPLY WITH PARAGRAPH TWO OF SUBSECTION (D) OF THIS SECTION.
   (L) AN INSURER SHALL DELIVER A NOTICE OR DOCUMENT BY ANY OTHER  DELIV-
 ERY METHOD PERMITTED BY LAW OTHER THAN ELECTRONIC MEANS IF:
   (1)  THE  INSURER  ATTEMPTS TO DELIVER THE NOTICE OR DOCUMENT BY ELEC-
 TRONIC MEANS AND HAS A REASONABLE BASIS FOR BELIEVING THAT THE NOTICE OR
 DOCUMENT HAS NOT BEEN RECEIVED BY THE PARTY, OR
   (2) THE  INSURER  BECOMES  AWARE  THAT  THE  ELECTRONIC  MAIL  ADDRESS
 PROVIDED BY THE PARTY IS NO LONGER VALID.
   (M)  THIS  SECTION MAY NOT BE CONSTRUED TO MODIFY, LIMIT, OR SUPERSEDE
 THE PROVISIONS OF  THE  FEDERAL  ELECTRONIC  SIGNATURES  IN  GLOBAL  AND
 NATIONAL COMMERCE ACT, PUBLIC LAW 106-229, AS AMENDED.
   §  2.  This  act shall take effect on the ninetieth day after it shall
 have become a law.