N.Y. Insurance Law § 7433: Proof and allowance of claims

§ 7433. Proof and allowance of claims. (a) (1) A proof of claim shall

consist of a written statement subscribed and affirmed by the claimant

as true under the penalties of perjury, setting forth the claim, the

consideration therefor, any securities held therefor, any payments made

thereon, and that the sum claimed is justly owing from the insurer to

the claimant.

(2) If a claim is founded upon an instrument in writing, such

instrument, unless lost or destroyed, shall be filed with the proof of

claim. After the filing of such instrument the superintendent may in

his discretion permit the claimant to retain such instrument until final

disposition of the claim. If such instrument is lost or destroyed, a

statement of such fact and of the circumstances of such loss or

destruction shall be filed under oath with the claim.

(b) (1) Upon the liquidation of any domestic insurer or United States

branch which has issued policies insuring the lives of persons, the

superintendent shall, within thirty days after the last day set for

filing claims, make a list of the persons who have not filed proofs of

claim with him, to whom it appears to his entire satisfaction, from the

records of the company, that there are owing amounts on such policies

and he shall set opposite the name of each person such amount so owing

to such person. Each person whose name shall appear upon such list shall

be deemed to have duly filed, prior to the last day set for the filing

of claims, a proof of claim for the amount set opposite his name.

(2) Upon the liquidation of any domestic insurer or United States

branch which has issued property/casualty policies, the superintendent

shall, within thirty days after the last day set for filing claims, make

a list of all persons whose name appears on the books and records of the

company as policyholders or claimants. Each person whose name appears

upon such list shall be deemed to have duly filed a proof of claim prior

to the last day set for the filing of claims.

(c) No contingent claim shall share in a distribution of assets of an

insurer adjudicated to be insolvent by an order made pursuant to section

seven thousand four hundred thirty-two of this article except that any

such claim shall be considered if properly presented and may be allowed

to share if:

(1) it becomes absolute against the insurer on or before the last day

fixed for filing of proofs of claim, or

(2) there is a surplus and the liquidation is thereafter conducted

upon the basis that such insurer is solvent.

(d) (1) Where a liquidation, rehabilitation or conservation order has

been entered in a proceeding against an insurer under this article, any

person who has a cause of action against an insured of such insurer

under a liability insurance policy issued by such insurer, shall have

the right to file a claim in the proceeding, even though the claim is

contingent.

(2) The claim may be allowed:

(A) if it may be reasonably inferred from the proof presented that

such person would be able to obtain a judgment upon such cause of action

against such insured;

(B) if such person shall furnish suitable proof, unless the court for

good cause shown shall otherwise direct, that no further valid claims

against such insurer arising out of his cause of action other than those

already presented can be made; and

(C) if the total liability of such insurer to all claimants arising

out of the same act of its insured shall be no greater than its total

liability would be were it not in liquidation, rehabilitation or

conservation.

(3) No judgment against such an insured taken after the date of the

entry of the liquidation, rehabilitation or conservation order shall be

considered in the proceedings as evidence of liability or of the amount

of damages. No judgment against an insured taken by default, inquest or

collusion prior to the entry of a liquidation order shall be considered

as conclusive evidence in the proceeding either of the liability of such

insured to such person upon such cause of action or of the amount of

damages to which such person is therein entitled.

(e) Debts owing to a state, county, district or municipality, or any

subdivision thereof, as a penalty or forfeiture, shall not be allowed

except for the amount of the pecuniary loss sustained by the act,

transaction or proceeding out of which the penalty or forfeiture arose,

with reasonable and actual costs occasioned thereby, and such interest

as may have accrued thereon according to law.

(f) No claim of any secured claimant shall be allowed at a sum greater

than the difference between the value of the claim without security and

the value of the security itself as of the date of entry of the order of

liquidation or such other date set by the court for fixation of rights

and liabilities as provided in section seven thousand four hundred five

of this article, unless the claimant shall surrender his security to the

superintendent in which event the claim shall be allowed in the full

amount of its value.