§ 1101. Definitions; doing an insurance business. (a) In this article:
(1) "Insurance contract" means any agreement or other transaction
whereby one party, the "insurer", is obligated to confer benefit of
pecuniary value upon another party, the "insured" or "beneficiary",
dependent upon the happening of a fortuitous event in which the insured
or beneficiary has, or is expected to have at the time of such
happening, a material interest which will be adversely affected by the
happening of such event.

(2) "Fortuitous event" means any occurrence or failure to occur which
is, or is assumed by the parties to be, to a substantial extent beyond
the control of either party.

(3) "Contract of warranty, guaranty or suretyship" means an insurance
contract only if made by a warrantor, guarantor or surety who or which,
as such, is doing an insurance business.

(b) (1) Except as otherwise provided in this subsection, any of the
following acts in this state, effected by mail from outside this state
or otherwise, by any person, firm, association, corporation or
joint-stock company shall constitute doing an insurance business in this
state and shall constitute doing business in the state within the
meaning of section three hundred two of the civil practice law and
rules:

(A) making, or proposing to make, as insurer, any insurance contract,
including either issuance or delivery of a policy or contract of
insurance to a resident of this state or to any firm, association, or
corporation authorized to do business herein, or solicitation of
applications for any such policies or contracts;

(B) making, or proposing to make, as warrantor, guarantor or surety,
any contract of warranty, guaranty or suretyship as a vocation and not
as merely incidental to any other legitimate business or activity of the
warrantor, guarantor or surety;

(C) collecting any premium, membership fee, assessment or other
consideration for any policy or contract of insurance;

(D) doing any kind of business, including a reinsurance business,
specifically recognized as constituting the doing of an insurance
business within the meaning of this chapter; or

(E) doing or proposing to do any business in substance equivalent to
any of the foregoing in a manner designed to evade the provisions of
this chapter.

(2) Notwithstanding the foregoing, the following acts or transactions,
if effected by mail from outside this state by an unauthorized foreign
or alien insurer duly licensed to transact the business of insurance in
and by the laws of its domicile, shall not constitute doing an insurance
business in this state, but section one thousand two hundred thirteen of
this chapter shall nevertheless be applicable to such insurers:

(A) transactions by any life insurance company organized and operated,
without profit to any private shareholder or individual, exclusively for
the purpose of aiding any charitable, religious, educational or
scientific institution organized and operated, without profit to any
private shareholder or individual, by issuing insurance or annuity
contracts directly from its home office, without agents or
representatives in this state, only to or for the benefit of such
institutions and to individuals engaged in their service;

(B) transactions with respect to group life, group annuity, group
accident and health or blanket accident and health insurance (other than
any transaction with respect to a group annuity contract funding
individual retirement accounts or individual retirement annuities, as
defined in section four hundred eight of the Internal Revenue Code,
funding annuities in accordance with subdivision (b) of section four
hundred three of such code or providing a plan of retirement annuities
under which the payments are derived wholly from funds contributed by
the persons covered):

(i) where such groups conform to the definitions of eligibility
contained in;

(I) the following paragraphs of subsection (b) of section four
thousand two hundred sixteen of this chapter:

(aa) paragraph (1) or (2);

(bb) paragraph (3), if, with respect to those credit transactions
entered into in this state, the policy fully conforms with the
requirements of sections three thousand two hundred one, three thousand
two hundred twenty and four thousand two hundred sixteen of this
chapter;

(cc) paragraphs (4), (5), (6), (7), (8), (9) and (10).

(II) the following subparagraphs of paragraph (1) of subsection (c) of
section four thousand two hundred thirty-five of this chapter:

(aa) subparagraph (A), (B), (C) or (D);

(bb) subparagraph (E), if, with respect to those credit transactions
entered into in this state, the policy fully conforms with the
requirements of sections three thousand two hundred one, three thousand
two hundred twenty-one and four thousand two hundred thirty-five of this
chapter;

(cc) subparagraphs (F), (G) and (H).

(III) section four thousand two hundred thirty-seven (except
subparagraph (F) of paragraph three of subsection (a) thereof) or four
thousand two hundred thirty-eight (except paragraphs six and seven of
subsection (b) thereof) of this chapter; and

(ii) where the master policies or contracts were lawfully issued
without this state in a jurisdiction where the insurer was authorized to
do an insurance business;

(C) transactions involving the continuance or servicing of life or
accident and health insurance policies or annuity contracts lawfully
issued or delivered in this state by an authorized insurer and occurring
subsequent to the termination of such insurer's authority to do an
insurance business in this state. Notwithstanding the foregoing, the
superintendent's approval granted pursuant to section one thousand one
hundred five of this article may authorize transactions involving the
continuance or servicing of life insurance policies or annuity contracts
to be effected from outside this state by telephone, video call,
facsimile, web portal, electronic transfer of funds, or by any other
electronic means approved by the superintendent, provided that the
insurer shall not have any other contact or interaction with a person in
this state other than as specified and in the manner provided in this
paragraph;

(D) transactions with respect to policies or annuity contracts
lawfully issued without this state occurring subsequent to issue, if, at
the time of issue, such policies or contracts covered subjects of
insurance or risks not resident or located in this state.
Notwithstanding the foregoing, transactions described in this
subparagraph involving the continuance or servicing of life insurance
policies or annuity contracts may be effected from outside this state by
telephone, video call, facsimile, web portal, electronic transfer of
funds, or by any other electronic means approved by the superintendent,
provided that the insurer shall not have any other contact or
interaction with a person in this state other than as specified and in
the manner provided in this paragraph;

(E) transactions with respect to policies of insurance on risks
located or resident within or without this state (except master policies
or contracts of group insurance which are subject to the requirements of
subparagraph (B) hereof), which policies are principally negotiated,
issued and delivered without this state in a jurisdiction in which the
insurer is authorized to do an insurance business;

(F) transactions authorized by section two thousand one hundred five
of this chapter with respect to excess lines insurance;

(G) transactions with respect to the reinsurance of risks of
authorized insurers to the extent that such reinsurance is permitted by
this chapter;

(H) transactions with respect to insurance contracts negotiated or
placed pursuant or otherwise subject to subsection (b), (c), (j) or (k)
of section two thousand one hundred seventeen of this chapter;

(I) transactions with respect to any policy of insurance or annuity
contract issued prior to September first, nineteen hundred seventy.

(3) Notwithstanding the foregoing, the making of an agreement pursuant
to which a lessor of personal property, a creditor making a loan or
other credit transaction on personal property or, in the absence of a
waiver by the lessor or creditor, the lessor's or creditor's assignee
waives the obligation of the lessee or debtor for the gap amount, as
such term is defined in paragraph fifty-two of subsection (a) of section
one hundred seven of this chapter, shall not constitute, or be deemed to
constitute, the doing of an insurance business if:

(i) the lessor or creditor or, in the absence of a waiver by the
lessor or creditor, the assignee waives any and all obligations of the
lessee or debtor for the gap amount and the lessee or debtor is
discharged from any and all further obligation to pay the gap amount;

(ii) the waiver applies only in the event of a total loss of the
personal property occasioned by its theft or physical damage;

(iii) in the event the lessor, creditor or assignee purchases lessor
or creditor gap insurance, the charge to the lessee or debtor for the
waiver does not exceed the cost of the lessor or creditor gap insurance
coverage; provided, however, that nothing contained herein shall be
construed to prohibit the lessor from including the charge for the
waiver in the capitalized cost as that term is defined in subdivision
eleven of section three hundred thirty-one of the personal property law.

(3-a) Notwithstanding the foregoing, the marketing, sale, offer for
sale, issuance, making, proposing to make or administration of a service
contract pursuant to article seventy-nine of this chapter or warranty,
service contract or maintenance agreement conditioned upon or otherwise
associated with the sale or supply of heating fuel shall not constitute
doing an insurance business in this state.

(4) In the application of this chapter, the fact that no profit is
derived from the making of insurance contracts, agreements or
transactions, or that no separate or direct consideration is received
therefor, shall not be deemed conclusively to show that the making
thereof does not constitute the doing of an insurance business.

(5) Notwithstanding the foregoing, an unauthorized insurer, which (A)
is affiliated with an insurer licensed in this state, and (B) has
satisfied all applicable requirements for placements by excess line
brokers as set forth in section two thousand one hundred eighteen of
this chapter, may provide from an office within the state, services to
support its insurance business. Such services shall not be deemed under
this chapter as doing an insurance business in this state. For the
purposes of this section these services include, but are not limited to,
computer operations, clerical and staffing support, underwriting,
negotiating contract terms, quoting premiums, binding coverage, drafting
and issuing policies and claims handling, investigation and payment,
among other incidental services. Such services shall not include the
marketing, soliciting or advertising by the unauthorized insurer
directly to policyholders. Notwithstanding paragraph two of subsection
(a) of section two thousand one hundred twenty-two of this chapter, such
unauthorized insurers shall be permitted to advertise to, and market and
solicit through, excess line brokers licensed pursuant to section two
thousand one hundred five of this chapter. All obligations of such a
licensee under article twenty-one of this chapter shall remain in full
force and effect. Any document issued by the unauthorized insurer that
indicates any location within this state in which it conducts its
operations shall include a prominent notice that the insurer is not
licensed by the state of New York, in no smaller than 10 point type, in
accordance with regulations as may be promulgated by the superintendent.

(6) Notwithstanding the foregoing, the election by the president of
the civil service commission to provide health benefits directly to New
York state health benefit plan participants shall not constitute the
doing of insurance business within the meaning of article eleven of the
insurance law.

(7)(A) Notwithstanding the foregoing, the making of a swap shall not
constitute doing an insurance business in this state.

(B) For the purposes of this paragraph, "swap" shall have the meaning
set forth in 7 U.S.C. § 1a.

(8) Notwithstanding the foregoing, the maintenance of a website
outside the state by an unauthorized foreign or alien insurer duly
licensed to transact the business of insurance in and by the laws of its
domicile, by which a member of a group may self-enroll, through an
automated process, in a group life, group annuity, or group accident and
health insurance policy or contract, as defined in paragraphs one, two,
and three of subsection (a) of section one thousand one hundred thirteen
of this article, shall not constitute doing an insurance business in
this state, but section one thousand two hundred thirteen of this
chapter nevertheless shall apply to the insurer; provided that:

(A) the group conforms to the definition of eligibility contained in:

(i) paragraph one, two, four (with respect to a policy issued to a
trustee or trustees of a fund established or participated in by two or
more employers, one or more labor unions, or by one or more employers or
labor unions, provided that all such employers or labor unions are in
the same industry), or five of subsection (b) of section four thousand
two hundred sixteen of this chapter;

(ii) subparagraph (A), (B), (C), or (D) (with respect to a policy
issued to a trustee or trustees of a fund established or participated in
by two or more employers, one or more labor unions, or by one or more
employers or labor unions, provided that all such employers or labor
unions are in the same industry) of paragraph one of subsection (c) of
section four thousand two hundred thirty-five of this chapter; or

(iii) paragraphs one, two, three or four of subsection (b) of section
four thousand two hundred thirty-eight of this chapter, but not
including a group annuity contract: (I) funding individual retirement
accounts or individual retirement annuities, as defined in section four
hundred eight of the Internal Revenue Code; (II) funding annuities in
accordance with subdivision (b) of section four hundred three of such
code; or (III) providing a plan of retirement annuities under which the
payments are derived wholly from funds contributed by the persons
covered.

(B) the insurer lawfully issued the master policy or contract without
this state in a jurisdiction where the insurer was authorized to do an
insurance business;

(C) the insurer's website clearly states that the insurer is not
authorized to transact the business of insurance in this state; and

(D) the insurer does not have any other contact or interaction with
the member other than as specified and in the manner provided in
paragraph two of this subsection.