Eslick v. Blue Cross of Western New York, Inc.

Order unanimously affirmed without costs. Memorandum: We affirm for the reasons stated in the memorandum decision at Supreme Court (Flaherty, J.). We add that there is no merit to plaintiff’s contention that the amendment to the policy is ineffective because of noncompliance with the Insurance Law and Regulations of the Superin 941 tendent of Insurance. Insurance Law § 4304 (f) authorizes the amendment in question if approved by the Superintendent of Insurance upon a finding that the level of benefits thereunder would exceed, in the aggregate, the level of benefits theretofore provided. After a hearing, the Superintendent made such a finding and approved the amendment. Any challenge to the Superintendent’s finding may be made only by CPLR article 78 proceeding (Insurance Law § 4315 [b]; § 326 [a]; see also, Medical Malpractice Ins. Assn. v Community Gen. Hosp., 73 AD2d 867). (Appeal from order of Supreme Court, Erie County, Flaherty, J. — summary judgment.) Present — Dillon, P. J., Boomer, Green, Pine and Balio, JJ.