Opinion
October 2, 1995
In the decision of this Court on the appeal in this matter ( 210 A.D.2d 638), this Court determined that the appeals were moot due to the declaration by the United States District Court for the Southern District of New York and the Second Circuit Court of Appeals declaring the nine percent surcharge of Public Health Law § 2807-c (2-a) (a) to be preempted by ERISA (see, Travelers Ins. Co. v. Cuomo, 813 F. Supp. 996, affd in part and revd in part 14 F.3d 708, cert granted ___ US ___, 115 S Ct 305). The decision of the Second Circuit Court of Appeals was recently reversed by the United States Supreme Court (see, Pataki v. Travelers Ins. Co., 514 US ___, 115 S Ct 1671). Petitioners now move in this Court for reargument based on the reversal by the United States Supreme Court. Petitioners also seek reargument on the remainder of this Court's decision which rejected petitioners' arguments that there was not a rational basis for respondents' denials of their exemption requests. In our view, the motion for reargument should be granted only to the extent of amending the decision so as to eliminate dismissal of the appeals as moot. The additional arguments in support of reargument by petitioners are found to be without merit.
Mikoll, J.P., Mercure, Crew III, White and Yesawich Jr., JJ., concur. Ordered that the motion is granted, without costs, to the extent that the memorandum and order of this Court dated December 8, 1994, is amended so as to omit the fifth paragraph of this Court's decision and to substitute for the decretal paragraph of this Court's memorandum and decision the following: Ordered that the judgments are affirmed, without costs.