* § 5412. Additional powers of the association. (a) As used in this
article:

(1) "Commercial risk insurance", "public entity insurance" and
"professional liability insurance" have the meanings ascribed to them by
section one hundred seven of this chapter, except that motor vehicle
insurance and medical malpractice liability insurance are excluded from
such meanings for purposes of this article;

(2) "Market" means a line, subline or classification (other than a
classification delineated by geographic location) of property/casualty
insurance not subject to subsection (b) of section two thousand three
hundred five, section two thousand three hundred twenty-eight or section
three thousand four hundred twenty-five of this chapter. Provided,
however, a "market" shall also include homeowners insurance as defined
in subsection (h) of section five thousand four hundred one of this
article. A "market" shall also include mandatory minimum surety bonds
required pursuant to section two hundred fifty-eight-b of the
agriculture and markets law.

(b) The association shall begin, or resume after any suspension, its
insurance underwriting operations for any market only after the
superintendent has determined after a hearing on a record that it is
necessary, due to unavailability of meaningful coverage in a particular
voluntary market, to activate the association to write coverage for such
market. In making a determination of necessity pursuant to this
subsection, the superintendent may consider such factors as: the extent
and nature of competition; size and significance of the coverage;
availability of adequate limits of coverage; efficacy of any market
assistance program administered by the superintendent including but not
limited to actual placement of coverage through a voluntary market
assistance program at the time such determination is to be made;
reinsurance availability; extent of consumer complaints to the
department of financial services; extent of denials and restrictions of
coverage; volume of cancellations and nonrenewals; or changing
conditions in the economic, judicial and social environment. If, after
activating the association in regard to a particular market, the
superintendent determines that ready availability of meaningful coverage
in such voluntary market has been restored, the association shall
thereupon suspend its underwriting in regard to such market. The
superintendent shall, no later than October first, nineteen hundred
eighty-six, activate the association to write particular markets in
regard to public entities, unless the superintendent determines that
activation is unnecessary because public entities are able to secure
meaningful coverage in voluntary markets, including through any market
assistance program administered by the superintendent.

(c) The directors of the association, after consultation with the
superintendent, shall forthwith prepare a plan of operation, subject to
approval by the superintendent who shall act expeditiously thereon, and
the directors shall take all other necessary steps on and after the
effective date of this section to prepare for prompt implementation of
the association's powers in the event that any market is activated by
the superintendent pursuant to subsection (b) of this section. The
directors of the association may, on their own initiative or at the
request of the superintendent, amend the plan subject to approval by the
superintendent. The superintendent may direct that the plan of
operation, or amendments to such plan, shall include specified limits of
coverage for particular markets activated.

(d) Upon activation by the superintendent of any market pursuant to
subsection (b) of this section, all insurers (excluding assessment
cooperative fire insurers) authorized to write and engaged in writing on
a direct basis within this state commercial risk, public entity or
professional liability insurance, including commercial multiple peril
policies, shall participate as members in the association. Every such
insurer shall be and remain a member of the association as a condition
of its authority to continue to transact such insurance in this state.
In addition to the credit provided pursuant to subsection (f) of section
five thousand four hundred five of this article, the superintendent may
by regulation provide for additional credits to such insurers that
voluntarily provide a market for those risks that the superintendent
determines to be extremely difficult to place in the voluntary market.

(e) The association shall with respect to any market activated by the
superintendent pursuant to subsection (b) of this section issue policies
in accordance with the association's plan of operation, and shall
maintain separate accounts and records for premiums, losses, expenses
and investment income attributable to such insurance. Assessments of
insurers for expenses and any losses of the association in connection
with such insurance shall be based on an insurer's net direct premiums
attributable to the types of insurance specified in subsection (a) of
this section. Rates shall be based upon loss and expense experience of
the risks insured by the association pursuant to this section and shall
be on an actuarially sound basis, calculated to be self-supporting at
the lowest possible rates consistent with the maintenance of solvency of
the association and of reasonable reserves, surplus and expenses,
including commissions. The provisions of subsection (d) of section five
thousand four hundred five of this article shall not apply to insurance
written pursuant to this section.

(f) The superintendent may also activate the association for purposes
of providing excess or umbrella coverages in connection with a market.
Hazards that the superintendent determines are uninsurable shall be
excluded from coverages which the association is required to furnish.

(g) The provisions of this section shall cease to be of any force or
effect on or after June thirtieth, two thousand twenty-six, except that
policies issued or other obligations incurred by the association shall
not be impaired by the expiration of this section and the association
shall continue for the purpose of servicing such policies and performing
such obligations.

* NB Expires June 30, 2026