{ "type": "practice-guide", "canonical": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york", "links": [ { "rel": "self", "href": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york.json", "type": "application/json" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york", "type": "text/html" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york/markdown", "type": "text/markdown" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york/json", "type": "application/json" }, { "rel": "license", "href": "https://creativecommons.org/licenses/by/4.0/", "type": "text/html", "external": true, "title": "CC BY 4.0" } ], "data": { "topic": "directors-and-officers-insurance", "state": "new-york", "frontmatter": { "title": "Directors and Officers Insurance for Affiliates in New York", "description": "How a parent entity's directors and officers (D&O) insurance applies to New York affiliates that run social events: who is insured, when claims must be reported, tail coverage, late notice and what to confirm with a broker.", "state": "New York", "country_code": "US", "lastReviewed": "2026-10-08", "license": "CC BY 4.0", "authors": [ "steven-obiajulu" ], "about": [ "directors and officers insurance", "affiliate coverage", "subsidiaries", "claims-made policies", "extended reporting periods", "late notice", "indemnification", "volunteer immunity", "insurance brokers" ] }, "questions": [ { "slug": "parent-do-policy-covers-affiliate", "label": "Does a parent entity's D&O policy cover an affiliate?", "heading": "Does a parent organization's directors and officers (D&O) policy cover a subsidiary or affiliate that runs social events in New York?", "answerText": "A parent organization's D&O policy covers a New York affiliate and the people who run its events only if the policy's insured-entity, insured-person, subsidiary or outside-entity provisions include them. In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals placed on the insured the burden of showing that a claim falls within the coverage, while an insurer relying on an exclusion must show that the exclusion applies. In our review we found no New York statute or appellate decision deciding which affiliates a D&O policy covers, so the conservative course is to have the affiliate named as an insured by endorsement.", "sources": [ { "id": "lacroix-typical-policy-entity-subsidiaries", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Executive Protection: D&O Insurance – The Insuring Agreement (The D&O Diary)", "citation": "Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).", "url": "https://www.dandodiary.com/2010/08/articles/d-o-insurance/executive-protection-do-insurance-the-insuring-agreement/", "proposition": "Kevin LaCroix's D&O Diary commentary states that the typical D&O policy covers the insured entity, usually the first named insured, and its subsidiaries, and that whether an entity is a subsidiary can depend on the parent's ownership percentage.", "verbatimQuote": "As for entities insured under the D&O policy, the typical policy provides coverage both for the insured entity (usually the first named insured) and its subsidiaries. Questions can arise whether or not an entity is a subsidiary (depending on the corporate parent’s ownership percentage).", "date": "2010-08-05", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-lacroix-typical-policy-entity-subsidiaries" }, { "id": "lacroix-insured-capacity-related-entity", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Executive Protection: D&O Insurance – The Insuring Agreement (The D&O Diary)", "citation": "Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).", "url": "https://www.dandodiary.com/2010/08/articles/d-o-insurance/executive-protection-do-insurance-the-insuring-agreement/", "proposition": "Kevin LaCroix's D&O Diary commentary states that individuals are insured under a D&O policy only for actions in an insured capacity, and that capacity questions can be difficult when the individual's actions were connected with a related but separate entity.", "verbatimQuote": "The individuals are insured only for actions in an insured capacity – that is, in connection with their service as a director or officer of the company. These questions can be difficult when the individual has multiple connections with the insured company – as an investor, for example, or as a representative of a private equity or venture capital firm, or where the individual’s actions were in connection with a joint venture or other related but separate entity.", "date": "2010-08-05", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-lacroix-insured-capacity-related-entity" }, { "id": "marsh-odl-company-requested-roles-only", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that outside directorship coverage applies only to a role held at the company's specific direction or request, so it does not reach self-chosen board seats such as on a local golf club or homeowners' association.", "verbatimQuote": "To be covered, your role with the outside entity must be at the specific direction or request of your company. Therefore, your company’s D&O policy does not extend to protect you when, for instance, you serve on the board of a local golf club or homeowner’s association because these are not company-requested roles.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-company-requested-roles-only" }, { "id": "massena-insured-capacity-director-officer", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=%E2%80%9CInsured%20Capacity%E2%80%9D%20means%20as%20a%20director%20or%20officer.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as defining insured capacity to mean acting as a director or officer.", "verbatimQuote": "“Insured Capacity” means as a director or officer.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-insured-capacity-director-officer" }, { "id": "massena-insured-burden-show-coverage", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=Once%20the%20insurance%20company%20asserted,to%20make%20that%20requisite%20showing.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that, once the insurer asserted its exclusion, the hospital defendants had the burden of showing that the alleged conduct fell within the coverage, and they had not made that showing.", "verbatimQuote": "Once the insurance company asserted the exclusion, the hospital defendants had the burden of showing that the conduct alleged was covered and they have failed to make that requisite showing.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-insured-burden-show-coverage" }, { "id": "massena-exclusion-burden-on-insurer", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=When%20an%20exclusion%20clause%20is,74%20NY2d%20at%2073%2D74%20).", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals stated that, when an insurer relies on an exclusion to deny a defense, it bears the burden of showing that the complaint's allegations can be interpreted only to exclude coverage.", "verbatimQuote": "When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325 [1974]; Technicon, 74 NY2d at 73-74 ).", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-exclusion-burden-on-insurer" }, { "id": "massena-hospital-insured-capacity-not-shown", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=The%20hospital%20has%20not%2C%20however%2C,officers%20or%20directors%20or%20otherwise.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that the hospital had not met its burden of showing that the remaining tortious-interference conduct was covered, because the complaint did not allege that the doctors acted in their insured capacity as officers or directors.", "verbatimQuote": "The hospital has not, however, met its burden of showing that the tortious conduct is covered. Franzon’s tortious interference claims against the hospital are centered around three physicians’ failure to refer patients to him. This conduct could only occur in the doctors’ respective roles as members of an insurance network. Franzon’s complaint, however, does not allege whether the doctors’ conduct in question occurred while they were acting in their “insured capacity” as officers or directors or otherwise.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-hospital-insured-capacity-not-shown" }, { "id": "massena-bodily-injury-defamation-exclusion", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=The%20policy%20limits%20this%20coverage,of%20character%E2%80%9D%20or%20similar%20torts.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as excluding loss arising out of or related to bodily injury, libel, slander, defamation and similar torts.", "verbatimQuote": "The policy limits this coverage by excluding, among other things, any loss “arising out of’ or otherwise related to “bodily injury * * * libel, slander, defamation of character” or similar torts.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-bodily-injury-defamation-exclusion" }, { "id": "lacroix-after-acquired-subsidiary-notice", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Executive Protection: D&O Insurance – The Policyholder’s Obligations (The D&O Diary)", "citation": "Kevin LaCroix, Executive Protection: D&O Insurance – The Policyholder’s Obligations, The D&O Diary (Aug. 24, 2010).", "url": "https://www.dandodiary.com/2010/08/articles/d-o-insurance/executive-protection-do-insurance-the-policyholders-obligations/", "proposition": "Kevin LaCroix's D&O Diary commentary states that after-acquired subsidiary provisions often require written notice to the insurer of the new subsidiary's full particulars for coverage to extend to it, and that the insurer may also require additional premium.", "verbatimQuote": "These after-acquired subsidiary provisions often require the policyholder to notify the insurer in writing of the “full particulars of the new Subsidiary,” in order for the policy’s coverage to extend to the new subsidiary. Private company policies often have similar notice requirements if the company conducts a public securities offering. In both instances, the insurer may also require the payment of additional premium.", "date": "2010-08-24", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-lacroix-after-acquired-subsidiary-notice" }, { "id": "npcl-102-affiliate-controlled-definition", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 102(a)(19) — Definition of affiliate", "citation": "N.Y. Not-for-Profit Corp. Law § 102(a)(19) (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/102", "proposition": "Not-for-Profit Corporation Law § 102(a)(19) defines an affiliate of a corporation as any entity controlled by, or in control of, that corporation.", "verbatimQuote": "(19) An “affiliate” of a corporation means any entity controlled by, or in control of, such corporation.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-102-affiliate-controlled-definition" }, { "id": "sherman-neely-limit-erosion-directors", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess (The D&O Diary)", "citation": "Scott N. Sherman & Edgar A. Neely IV, Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess, The D&O Diary (Sept. 24, 2026).", "url": "https://www.dandodiary.com/2026/09/articles/d-o-insurance/director-checklist-for-do-policies-10-key-terms-and-provisions-boards-should-assess/", "proposition": "Commentary by Scott N. Sherman and Edgar A. Neely IV states that a D&O policy limit does not necessarily provide that amount of protection to directors personally, because multiple claims or claims against the company may erode it.", "verbatimQuote": "A $15 million policy does not necessarily provide $15 million of protection to directors personally. Multiple claims or claims against the company itself may erode the available limit.", "date": "2026-09-24", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-sherman-neely-limit-erosion-directors" }, { "id": "bcl-722a-indemnify-requested-outside-service", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Bus. Corp. Law § 722(a) — Authorization for indemnification of directors and officers", "citation": "N.Y. Bus. Corp. Law § 722(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/BSC/722", "proposition": "Business Corporation Law § 722(a) permits a corporation to indemnify a director or officer made a party to an action other than one by or in the right of the corporation, including because of service at the corporation's request for another enterprise, if the person acted in good faith for a purpose reasonably believed to be in, or for outside service not opposed to, the corporation's best interests and, in a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.", "verbatimQuote": "(a) A corporation may indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-bcl-722a-indemnify-requested-outside-service" }, { "id": "npcl-722a-indemnify-requested-outside-service", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 722(a) — Authorization for indemnification of directors and officers", "citation": "N.Y. Not-for-Profit Corp. Law § 722(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/722", "proposition": "Not-for-Profit Corporation Law § 722(a) permits a not-for-profit corporation to indemnify a director or officer made a party to an action other than one by or in the right of the corporation, including because of service at the corporation's request for another enterprise, if the person acted in good faith for a purpose reasonably believed to be in, or for outside service not opposed to, the corporation's best interests and, in a criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.", "verbatimQuote": "(a) A corporation may indemnify any person, made, or threatened to be made, a party to an action or proceeding other than one by or in the right of the corporation to procure a judgment in its favor, whether civil or criminal, including an action by or in the right of any other corporation of any kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-722a-indemnify-requested-outside-service" }, { "id": "marsh-odl-double-excess-basis", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that D&O policies often contain an outside directorship liability extension that most commonly applies excess of the outside entity's indemnification and the outside entity's own D&O program.", "verbatimQuote": "D&O policies often contain an ODL extension that most commonly works on a “double excess basis,” where a company’s ODL coverage applies excess of the outside entity’s indemnification to the director or officer and the outside entity’s own D&O program.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-double-excess-basis" }, { "id": "marsh-odl-nonprofit-blanket-coverage", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that outside directorship coverage is typically blanket for nonprofit entities, which need not be specifically scheduled on the policy.", "verbatimQuote": "Blanket coverage typically is provided for nonprofit entities; this means that these entities do not need to be specifically scheduled on the policy.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-nonprofit-blanket-coverage" }, { "id": "marsh-odl-individuals-not-entity", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that outside directorship coverage does not cover the outside entity itself and covers only the individual director or officer.", "verbatimQuote": "ODL coverage does not cover the entity itself; it only covers you as an individual director or officer of the company.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-individuals-not-entity" }, { "id": "marsh-odl-shares-program-limit", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that outside directorship coverage typically shares the limit of the overall D&O program.", "verbatimQuote": "Because ODL coverage typically shares the limit of the overall D&O program, it is critical that your company understands the full extent of its ODL exposures.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-shares-program-limit" } ] }, { "slug": "do-insurance-purchase-disclosure", "label": "May a New York corporation buy D&O insurance?", "heading": "May a New York corporation buy directors and officers (D&O) insurance, and what must it disclose when it does?", "answerText": "Under Not-for-Profit Corporation Law § 726(a) and Business Corporation Law § 726(a), a New York corporation may buy insurance that reimburses its indemnification of directors and officers and that covers them directly. A corporation that buys or renews that insurance must mail a statement describing it within the time and to the persons that § 725(c) specifies.", "sources": [ { "id": "npcl-726a-power-to-buy-do-insurance", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 726(a) — Insurance for indemnification of directors and officers", "citation": "N.Y. Not-for-Profit Corp. Law § 726(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/726", "proposition": "Not-for-Profit Corporation Law § 726(a) gives a corporation power, subject to § 726(b), to buy insurance reimbursing its indemnification of directors and officers, covering directors and officers where indemnification is permitted, and covering them where it is not if the policy provides a retention and co-insurance acceptable to the superintendent of financial services.", "verbatimQuote": "(a) Subject to paragraph (b), a corporation shall have power to purchase and maintain insurance: (1) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (2) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (3) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of financial services, for a retention amount and for co-insurance.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-726a-power-to-buy-do-insurance" }, { "id": "bcl-726a-power-to-buy-do-insurance", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Bus. Corp. Law § 726(a) — Insurance for indemnification of directors and officers", "citation": "N.Y. Bus. Corp. Law § 726(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/BSC/726", "proposition": "Business Corporation Law § 726(a) gives a corporation power, subject to § 726(b), to buy insurance reimbursing its indemnification of directors and officers, covering directors and officers where indemnification is permitted, and covering them where it is not if the policy provides a retention and co-insurance acceptable to the superintendent of financial services.", "verbatimQuote": "(a) Subject to paragraph (b), a corporation shall have power to purchase and maintain insurance: (1) To indemnify the corporation for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this article, and (2) To indemnify directors and officers in instances in which they may be indemnified by the corporation under the provisions of this article, and (3) To indemnify directors and officers in instances in which they may not otherwise be indemnified by the corporation under the provisions of this article provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of financial services, for a retention amount and for co-insurance.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-bcl-726a-power-to-buy-do-insurance" }, { "id": "npcl-726d-insurance-statement-mailing", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 726(d) — Statement of insurance purchased", "citation": "N.Y. Not-for-Profit Corp. Law § 726(d) (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/726", "proposition": "Not-for-Profit Corporation Law § 726(d) requires a corporation that purchases or renews insurance under § 726 to mail, within the time and to the persons that § 725(c) provides, a statement specifying the carrier, contract date, cost, corporate positions insured and sums paid under the insurance not previously reported to members.", "verbatimQuote": "(d) The corporation shall, within the time and to the persons provided in paragraph (c) of section 725 (Other provisions affecting indemnification of directors and officers), mail a statement in respect to any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to members, paid under any indemnification insurance contract.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-726d-insurance-statement-mailing" }, { "id": "bcl-726d-insurance-statement-mailing", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Bus. Corp. Law § 726(d) — Statement of insurance purchased", "citation": "N.Y. Bus. Corp. Law § 726(d) (2026).", "url": "https://www.nysenate.gov/legislation/laws/BSC/726", "proposition": "Business Corporation Law § 726(d) requires a corporation that purchases or renews insurance under § 726 to mail, within the time and to the persons that § 725(c) provides, a statement specifying the carrier, contract date, cost, corporate positions insured and sums paid under the insurance not previously reported to shareholders.", "verbatimQuote": "(d) The corporation shall, within the time and to the persons provided in paragraph (c) of section 725 (Other provisions affecting indemnification of directors or officers), mail a statement in respect of any insurance it has purchased or renewed under this section, specifying the insurance carrier, date of the contract, cost of the insurance, corporate positions insured, and a statement explaining all sums, not previously reported in a statement to shareholders, paid under any indemnification insurance contract.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-bcl-726d-insurance-statement-mailing" }, { "id": "npcl-726b-no-payment-beyond-defense", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 726(b) — Limits on D&O insurance payments", "citation": "N.Y. Not-for-Profit Corp. Law § 726(b) (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/726", "proposition": "Not-for-Profit Corporation Law § 726(b) bars insurance under § 726(a) from paying anything other than defense costs for a director or officer where a final adjudication establishes active and deliberate dishonesty material to the cause of action or a personal gain to which the person was not legally entitled, or for a risk whose insurance New York insurance law prohibits.", "verbatimQuote": "(b) No insurance under paragraph (a) may provide for any payment, other than cost of defense, to or on behalf of any director or officer: (1) if a judgment or other final adjudication adverse to the insured director or officer establishes that his acts of active and deliberate dishonesty were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (2) in relation to any risk the insurance of which is prohibited under the insurance law of this state.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-726b-no-payment-beyond-defense" } ] }, { "slug": "volunteer-director-immunity-501c3", "label": "Are unpaid nonprofit directors protected from personal liability?", "heading": "Are uncompensated directors and officers of a New York not-for-profit organization protected from personal liability?", "answerText": "Subject to its statutory exceptions, Not-for-Profit Corporation Law § 720-a protects uncompensated directors, officers, key persons and trustees of § 501(c)(3) organizations from third-party liability based solely on conduct in office, unless that conduct was gross negligence or intended to cause the resulting harm.", "sources": [ { "id": "npcl-720a-uncompensated-501c3-immunity", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Not-for-Profit Corp. Law § 720-a — Liability of directors, officers, trustees and key persons", "citation": "N.Y. Not-for-Profit Corp. Law § 720-a (2026).", "url": "https://www.nysenate.gov/legislation/laws/NPC/720-A", "proposition": "Not-for-Profit Corporation Law § 720-a provides that, except under §§ 719 and 720 and in actions by the attorney general or certain trust beneficiaries, an uncompensated director, officer, key person or trustee of a section 501(c)(3) organization is not liable to anyone other than the organization for conduct in office unless that conduct was gross negligence or intended to cause the harm.", "verbatimQuote": "Except as provided in sections seven hundred nineteen and seven hundred twenty of this chapter, and except any action or proceeding brought by the attorney general or, in the case of a charitable trust, an action or proceeding against a trustee brought by a beneficiary of such trust, no person serving without compensation as a director, officer, key person or trustee of a corporation, association, organization or trust described in section 501 (c) (3) of the United States internal revenue code shall be liable to any person other than such corporation, association, organization or trust based solely on his or her conduct in the execution of such office unless the conduct of such director, officer, key person or trustee with respect to the person asserting liability constituted gross negligence or was intended to cause the resulting harm to the person asserting such liability.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-npcl-720a-uncompensated-501c3-immunity" } ] }, { "slug": "do-claims-made-reporting-deadline", "label": "When must a D&O claim be reported?", "heading": "When must a claim be reported under a claims-made directors and officers (D&O) policy issued in New York?", "answerText": "A claims-made D&O policy issued in New York may require claims to be made within the policy period, a renewal or an extended reporting period, a deadline the First Department enforces regardless of prejudice to the insurer. For a policy subject to 11 NYCRR Part 73, a claim is first made when the insurer receives written notice of a claim or suit, although the policy may instead use written notice of an incident as the trigger. The conservative course is to give the insurer written notice of every claim, and of any incident the policy allows to be reported, within the policy's deadline.", "sources": [ { "id": "isc-3420-a5-claims-made-reporting-window", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a)(5) — Late notice and claims-made policies", "citation": "N.Y. Ins. Law § 3420(a)(5) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a)(5) requires a provision that late notice does not invalidate a claim unless it prejudiced the insurer, subject to paragraph (4), but allows a claims-made policy to require that the claim be made during the policy period, any renewal or any extended reporting period.", "verbatimQuote": "(5) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, injured person or any other claimant, unless the failure to provide timely notice has prejudiced the insurer, except as provided in paragraph four of this subsection. With respect to a claims-made policy, however, the policy may provide that the claim shall be made during the policy period, any renewal thereof, or any extended reporting period, except as provided in paragraph four of this subsection.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a5-claims-made-reporting-window" }, { "id": "advance-transit-reporting-deadline-irrespective-prejudice", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Certain Underwriters at Lloyd's London v. Advance Transit Co.", "citation": "Certain Underwriters at Lloyd's London v. Advance Tr. Co., 2020 NY Slip Op 06705 (1st Dep't 2020).", "url": "https://www.courtlistener.com/opinion/4806649/certain-underwriters-at-lloyds-london-subscribing-to-policy-no/", "deepLink": "https://www.courtlistener.com/opinion/4806649/certain-underwriters-at-lloyds-london-subscribing-to-policy-no/#:~:text=Based%20upon%20the%20plain%20and,or%20any%20extended%20reporting%20period.%E2%80%9D", "proposition": "In Certain Underwriters at Lloyd's London v. Advance Transit Co., the Appellate Division, First Department, held that under Insurance Law § 3420(a)(5) a claims-made policy can set a definite time frame for reporting claims, irrespective of prejudice, including the policy period, any renewal or any extended reporting period.", "verbatimQuote": "Based upon the plain and ordinary meaning of the term “however” within Insurance Law § 3420(a)(5), a claims-made policy can set a definite time frame for reporting claims, irrespective of prejudice, which can include “the policy period, any renewal thereof, or any extended reporting period.”", "date": "2020-11-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-advance-transit-reporting-deadline-irrespective-prejudice" }, { "id": "nycrr-73-3-scope-claim-trigger-retro-date", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3 — Minimum standards, claim trigger and retroactive date", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(a)–(b) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=Except%20as%20provided%20in%20section,and%20any%20extended%20reporting%20period.", "proposition": "11 NYCRR 73.3 applies its minimum standards, except as § 73.2(d) provides, to claims-made liability policies issued or renewed in New York; it deems a claim first made when the insurer receives written notice of a claim or suit, while permitting written notice of incident as the trigger, and bars changing the retroactive date during the claims-made relationship and any extended reporting period.", "verbatimQuote": "Except as provided in section 73.2(d) of this Part, no claims-made liability insurance policy shall be issued or renewed in this State, unless the policy and the issuing insurer comply with the following minimum standards: (a) A claim will be deemed first made when the insurer receives written notice of a claim or suit from the insured or a third party, but this shall not preclude an insurer from utilizing written notice of incident as the trigger of coverage under the policy. (b) A retroactive date may not be changed during the term of the claims-made relationship and any extended reporting period.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3-scope-claim-trigger-retro-date" }, { "id": "nycrr-73-2-claims-made-permitted-coverages", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.2 — Types of coverages and risks", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2 (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2#:~:text=Claims%2Dmade%20coverage%20any%20not%20be,paragraph%20(d)(1)%20of%20this%20section.", "proposition": "11 NYCRR 73.2 bars claims-made coverage in policies issued or renewed in New York except as the section allows, and § 73.2(a) permits directors and officers liability, among other listed coverages, to be written on a claims-made basis.", "verbatimQuote": "Claims-made coverage any not be provided in any policy issued or renewed in this State, except that: (a) The following coverages or risks may be written on a claims-made basis: (1) completed operations liability; (2) directors and officers liability; (3) employee benefits liability; (4) errors and omissions liability; (5) excess liability; (6) fiduciary liability; (7) pollution and environmental impairment liability; (8) public entity liability; (9) products liability; (10) professional liability (including medical malpractice liability); (11) ski resort liability, subject to subdivision (f) of this section; (12) employment practices liability; and (13) risks specified in paragraph (d)(1) of this section.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-2-claims-made-permitted-coverages" }, { "id": "lacroix-notice-of-claim-condition", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Executive Protection: D&O Insurance – The Policyholder’s Obligations (The D&O Diary)", "citation": "Kevin LaCroix, Executive Protection: D&O Insurance – The Policyholder’s Obligations, The D&O Diary (Aug. 24, 2010).", "url": "https://www.dandodiary.com/2010/08/articles/d-o-insurance/executive-protection-do-insurance-the-policyholders-obligations/", "proposition": "Kevin LaCroix's D&O Diary commentary states that a D&O policy requires the insured, as a condition of coverage, to give notice of claim within a set number of days or as soon as practicable.", "verbatimQuote": "Notice of Claim: First, the policy requires the insured, as a condition of coverage, to provide notice of claim within a specified time or time frame (that is, either within a set number of days or “as soon as practicable”).", "date": "2010-08-24", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-lacroix-notice-of-claim-condition" }, { "id": "dfs-cl-2008-26-no-prejudice-after-reporting-period", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Circular Letter No. 26 (2008) — Notice provisions in liability policies", "citation": "N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).", "url": "https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2008_26", "proposition": "DFS Circular Letter No. 26 (2008) states that the late-notice prejudice standard does not apply when notice under a claims-made policy is given after the policy period, its renewal and any extended reporting period have expired.", "verbatimQuote": "Nor does the prejudice standard for late notice apply when notice is given under a claim-made policy after the expiration of: the policy period governing the time during which the event occurred; the renewal of such policy; and any extended reporting period under such policy.", "date": "2008-11-18", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-cl-2008-26-no-prejudice-after-reporting-period" }, { "id": "advance-transit-claim-outside-period-untimely", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Certain Underwriters at Lloyd's London v. Advance Transit Co.", "citation": "Certain Underwriters at Lloyd's London v. Advance Tr. Co., 2020 NY Slip Op 06705 (1st Dep't 2020).", "url": "https://www.courtlistener.com/opinion/4806649/certain-underwriters-at-lloyds-london-subscribing-to-policy-no/", "deepLink": "https://www.courtlistener.com/opinion/4806649/certain-underwriters-at-lloyds-london-subscribing-to-policy-no/#:~:text=Defendant%20reported%20the%20claim%20to,therefore%2C%20the%20claim%20was%20untimely.", "proposition": "In Certain Underwriters at Lloyd's London v. Advance Transit Co., the Appellate Division, First Department, held that a claim reported outside the policy period and the extended reporting period was untimely.", "verbatimQuote": "Defendant reported the claim to plaintiff outside the policy period and the extended reporting period and therefore, the claim was untimely.", "date": "2020-11-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-advance-transit-claim-outside-period-untimely" }, { "id": "isc-3420-a4-not-reasonably-possible-notice", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a)(4) — Notice not reasonably possible", "citation": "N.Y. Ins. Law § 3420(a)(4) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a)(4) requires a provision that failure to give notice within the policy's time does not invalidate a claim if timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward.", "verbatimQuote": "(4) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, an injured person or any other claimant if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible thereafter.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a4-not-reasonably-possible-notice" }, { "id": "dfs-cl-2008-26-applies-all-liability-policies", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Circular Letter No. 26 (2008) — Notice provisions in liability policies", "citation": "N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).", "url": "https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2008_26", "proposition": "DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.", "verbatimQuote": "The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.", "date": "2008-11-18", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-cl-2008-26-applies-all-liability-policies" }, { "id": "isc-3420-a-scope-reporting", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a) — Scope of required liability-policy provisions", "citation": "N.Y. Ins. Law § 3420(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a) states that its required provisions apply to a policy or contract issued or delivered in New York that insures against liability for injury to person, except as § 3420(g) provides, or against liability for injury to or destruction of property.", "verbatimQuote": "(a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) of this section, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors: (1) A provision that the insolvency or bankruptcy of the person insured, or the insolvency of the insured's estate, shall not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of and within the coverage of such policy or contract.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a-scope-reporting" } ] }, { "slug": "do-late-notice-insurance-law-3420", "label": "Does § 3420 excuse late notice of a D&O claim?", "heading": "Does New York Insurance Law § 3420 excuse late notice of a claim under a directors and officers (D&O) policy?", "answerText": "Insurance Law § 3420(a)(4) preserves a claim under a liability policy within § 3420(a) when timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward. The Department of Financial Services (DFS) treats a D&O policy as liability insurance to which § 3420 is relevant, but no New York appellate decision found in our review decides whether § 3420(a) reaches a D&O claim for purely financial loss.", "sources": [ { "id": "isc-3420-a4-not-reasonably-possible-notice-late-notice", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a)(4) — Notice not reasonably possible", "citation": "N.Y. Ins. Law § 3420(a)(4) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a)(4) requires a provision that failure to give notice within the policy's time does not invalidate a claim if timely notice was not reasonably possible and notice was given as soon as reasonably possible afterward.", "verbatimQuote": "(4) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured, an injured person or any other claimant if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible thereafter.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a4-not-reasonably-possible-notice-late-notice" }, { "id": "isc-3420-a-scope-injury-property-liability", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a) — Scope of required liability-policy provisions", "citation": "N.Y. Ins. Law § 3420(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a) requires the listed provisions in any policy or contract issued or delivered in New York that insures against liability for injury to person, except as § 3420(g) provides, or against liability for injury to or destruction of property.", "verbatimQuote": "(a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) of this section, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors: (1) A provision that the insolvency or bankruptcy of the person insured, or the insolvency of the insured's estate, shall not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of and within the coverage of such policy or contract.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a-scope-injury-property-liability" }, { "id": "dfs-ogc-do-personal-injury-liability-insurance", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Office of General Counsel Opinion No. 08-10-07 — Duty to defend under D&O policies", "citation": "N.Y. Ins. Dep't Office of Gen. Counsel, Op. No. 08-10-07 (Oct. 16, 2008).", "url": "https://www.dfs.ny.gov/insurance/ogco2008/rg081007.htm", "proposition": "In Opinion No. 08-10-07, the New York Insurance Department's Office of General Counsel stated that a D&O policy is a form of personal injury liability insurance authorized by Insurance Law § 1113(a)(13).", "verbatimQuote": "A D&O policy is a form of personal injury liability insurance that is authorized by Insurance Law § 1113(a)(13).", "date": "2008-10-16", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-ogc-do-personal-injury-liability-insurance" }, { "id": "dfs-ogc-3420-supports-do-conclusion", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Office of General Counsel Opinion No. 08-10-07 — Duty to defend under D&O policies", "citation": "N.Y. Ins. Dep't Office of Gen. Counsel, Op. No. 08-10-07 (Oct. 16, 2008).", "url": "https://www.dfs.ny.gov/insurance/ogco2008/rg081007.htm", "proposition": "In Opinion No. 08-10-07, the New York Insurance Department's Office of General Counsel relied on Insurance Law § 3420, which sets out provisions that liability policies must include, as support for its conclusion about a D&O policy filing.", "verbatimQuote": "Insurance Law § 3420, which sets forth provisions that an insurer must include in its liability insurance policies, also bolsters the Department’s conclusion.", "date": "2008-10-16", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-ogc-3420-supports-do-conclusion" }, { "id": "dfs-cl-2008-26-applies-all-liability-policies-late-notice", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Circular Letter No. 26 (2008) — Notice provisions in liability policies", "citation": "N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).", "url": "https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2008_26", "proposition": "DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.", "verbatimQuote": "The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.", "date": "2008-11-18", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-cl-2008-26-applies-all-liability-policies-late-notice" }, { "id": "mccabe-3420-a4-applies-claims-made", "authorityType": "case-law", "tier": "primary-source-backed", "title": "McCabe v. St. Paul Fire & Marine Insurance Co.", "citation": "McCabe v. St. Paul Fire & Marine Ins. Co., 79 A.D.3d 1612 (4th Dep't 2010).", "url": "https://www.courtlistener.com/opinion/5953242/mccabe-v-st-paul-fire-marine-insurance/", "deepLink": "https://www.courtlistener.com/opinion/5953242/mccabe-v-st-paul-fire-marine-insurance/#:~:text=We%20further%20conclude%20that%20plaintiffs,exceptions%20for%20claims%2Dmade%20insurance%20policies.", "proposition": "In McCabe v. St. Paul Fire & Marine Insurance Co., the Appellate Division, Fourth Department, held that claimants who gave notice as soon as reasonably possible did not lose their claim by giving notice after the policy period and extended reporting period, because Insurance Law § 3420(a)(4) contains no exception for claims-made policies.", "verbatimQuote": "We further conclude that plaintiffs gave defendant notice of their claim against Fretz as soon as was reasonably possible, and thus that their failure to give notice to defendant during the policy period or extended reporting period did not invalidate their claim (see Insurance Law § 3420 [a] [4]; Wraight v Exchange Ins. Co. [appeal No. 2], 234 AD2d 916 , 917 [1996], lv denied 89 NY2d 813 [1997]). Contrary to defendant’s contention, Insurance Law § 3420 (a) (3) and (4) do not include exceptions for claims-made insurance policies.", "date": "2010-12-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-mccabe-3420-a4-applies-claims-made" }, { "id": "mccabe-extended-reporting-period-ended", "authorityType": "case-law", "tier": "primary-source-backed", "title": "McCabe v. St. Paul Fire & Marine Insurance Co.", "citation": "McCabe v. St. Paul Fire & Marine Ins. Co., 79 A.D.3d 1612 (4th Dep't 2010).", "url": "https://www.courtlistener.com/opinion/5953242/mccabe-v-st-paul-fire-marine-insurance/", "deepLink": "https://www.courtlistener.com/opinion/5953242/mccabe-v-st-paul-fire-marine-insurance/#:~:text=The%20%E2%80%9Cclaims%20made%E2%80%9D%20professional%20liability,expired%20on%20March%2015%2C%202007.", "proposition": "In McCabe v. St. Paul Fire & Marine Insurance Co., the Fourth Department described the claims-made policy as covering claims reported within the policy period and extended reporting period, which expired on March 15, 2007.", "verbatimQuote": "The “claims made” professional liability insurance policy issued to Fretz by defendant provided coverage for any claims made against Fretz that were reported to defendant within the policy period and extended reporting period, which expired on March 15, 2007.", "date": "2010-12-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-mccabe-extended-reporting-period-ended" } ] }, { "slug": "do-extended-reporting-period-tail", "label": "What D&O tail must an insurer offer?", "heading": "What extended reporting period (tail) must an insurer provide or offer when a New York organization's claims-made D&O coverage ends?", "answerText": "For a claims-made D&O policy subject to 11 NYCRR Part 73, termination of coverage triggers a 60-day automatic extended reporting period and, subject to the regulation's exceptions, a required offer of a longer one. Policies placed with unauthorized insurers through licensed excess line brokers are exempt from Part 73, so their tail rights come from the policy's terms.", "sources": [ { "id": "nycrr-73-3d-sixty-day-automatic-tail", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(d) — Automatic extended reporting period", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(d) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(d)%20Upon%20termination%20of%20coverage%2C,be%20provided%20by%20the%20insurer.", "proposition": "11 NYCRR 73.3(d) requires the insurer to provide a 60-day automatic extended reporting period on termination of claims-made coverage, or 90 days for public entity liability policies.", "verbatimQuote": "(d) Upon termination of coverage, a 60-day automatic extended reporting period, or 90 days in case of public entity liability insurance policies, must be provided by the insurer.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3d-sixty-day-automatic-tail" }, { "id": "nycrr-73-3f-three-year-tail-offer", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(f) — Three-year extended reporting period offer", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(f) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(f)%20Except%20as%20provided%20in,a%20three%2Dyear%20extended%20reporting%20period.", "proposition": "11 NYCRR 73.3(f) requires an insurer, except as subdivision (g) and sections 73.4 and 73.5 provide, to offer a three-year extended reporting period on termination of coverage.", "verbatimQuote": "(f) Except as provided in subdivision (g) of this section, and sections 73.4 and 73.5 of this Part, upon termination of coverage, an insurer must offer the insured a three-year extended reporting period.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3f-three-year-tail-offer" }, { "id": "segal-excess-line-exempt-claims-regulation", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Segal Co. v. Certain Underwriters at Lloyd's", "citation": "Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).", "url": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/", "deepLink": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/#:~:text=Policies%20procured%20from%20unauthorized%20insurers,328%20%2C%20332%20n%20%5B1996%5D).", "proposition": "In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, stated that policies procured from unauthorized insurers by licensed excess line brokers are exempt from Regulation 121, New York's claims-made regulation in 11 NYCRR Part 73.", "verbatimQuote": "Policies procured from unauthorized insurers by licensed excess line brokers are exempt from the provisions of Regulation 121 (11 NYCRR 27.10 [a]; see Matter of John Paterno, Inc. v Curiale, 88 NY2d 328 , 332 n [1996]).", "date": "2005-06-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-segal-excess-line-exempt-claims-regulation" }, { "id": "nycrr-73-3-scope-claim-trigger-retro-date-tail", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3 — Minimum standards, claim trigger and retroactive date", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(a)–(b) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=Except%20as%20provided%20in%20section,and%20any%20extended%20reporting%20period.", "proposition": "11 NYCRR 73.3 applies its minimum standards, except as § 73.2(d) provides, to claims-made liability policies issued or renewed in New York; it deems a claim first made when the insurer receives written notice of a claim or suit, while permitting written notice of incident as the trigger, and bars changing the retroactive date during the claims-made relationship and any extended reporting period.", "verbatimQuote": "Except as provided in section 73.2(d) of this Part, no claims-made liability insurance policy shall be issued or renewed in this State, unless the policy and the issuing insurer comply with the following minimum standards: (a) A claim will be deemed first made when the insurer receives written notice of a claim or suit from the insured or a third party, but this shall not preclude an insurer from utilizing written notice of incident as the trigger of coverage under the policy. (b) A retroactive date may not be changed during the term of the claims-made relationship and any extended reporting period.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3-scope-claim-trigger-retro-date-tail" }, { "id": "segal-policies-not-subject-minimum-standards", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Segal Co. v. Certain Underwriters at Lloyd's", "citation": "Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).", "url": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/", "deepLink": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/#:~:text=However%2C%20because%20the%20policies%20issued,subject%20to%20these%20minimum%20standards.", "proposition": "In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, held that because the excess-line policies before it fell within an exception to Regulation 121, they were not subject to the regulation's minimum standards.", "verbatimQuote": "However, because the policies issued by defendants in the instant case fall within an exception to Regulation 121, they are not subject to these minimum standards.", "date": "2005-06-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-segal-policies-not-subject-minimum-standards" }, { "id": "segal-no-public-policy-tail-right", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Segal Co. v. Certain Underwriters at Lloyd's", "citation": "Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).", "url": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/", "deepLink": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/#:~:text=We%20therefore%20hold%20that%20the,sell%20ERP%20coverage%20to%20plaintiff.", "proposition": "In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, held that New York public policy as expressed in Regulation 121, which did not apply to the excess-line insurers, did not require them to sell extended reporting period coverage.", "verbatimQuote": "We therefore hold that the motion court erred in finding that New York public policy as expressed in Regulation 121, a regulation that is not applicable to defendants, requires them to sell ERP coverage to plaintiff.", "date": "2005-06-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-segal-no-public-policy-tail-right" }, { "id": "dfs-cl-2008-26-applies-all-liability-policies-tail", "authorityType": "agency-guidance", "tier": "official-source-backed", "title": "DFS Circular Letter No. 26 (2008) — Notice provisions in liability policies", "citation": "N.Y. Dep't of Fin. Servs., Circular Letter No. 26 (Nov. 18, 2008).", "url": "https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2008_26", "proposition": "DFS Circular Letter No. 26 (2008) states that the 2008 notice amendments apply to all liability policies, including renewals and excess line policies, issued or delivered in New York on or after January 17, 2009.", "verbatimQuote": "The amendments apply to all liability policies (including renewals) issued or delivered in New York on or after the effective date of January 17, 2009, including policies issued in the excess line market.", "date": "2008-11-18", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-dfs-cl-2008-26-applies-all-liability-policies-tail" }, { "id": "nycrr-73-1n-termination-of-coverage", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.1(n) — Termination of coverage", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(n) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1#:~:text=(n)%20Termination%20of%20coverage%20means%2C,less%20favorable%20to%20the%20insured.", "proposition": "11 NYCRR 73.1(n) defines termination of coverage to include cancellation or nonrenewal by the insurer or the insured, and any decrease in limits, reduction of coverage, new exclusion or other change less favorable to the insured.", "verbatimQuote": "(n) Termination of coverage means, whether made by the insurer or the insured at any time: (1) cancellation or nonrenewal of a policy; or (2) decrease in limits, reduction of coverage, increased deductible or self-insured retention, new exclusion, or any other change in coverage less favorable to the insured.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-1n-termination-of-coverage" }, { "id": "nycrr-73-3e1-insurer-written-tail-notice", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(e)(1) — Insurer's notice of extended reporting coverage", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(1) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(1)%20Within%2030%20days%20after,additional%20extended%20reporting%20period%20coverage.", "proposition": "11 NYCRR 73.3(e)(1) requires the insurer, within 30 days after termination of coverage, to advise the insured in writing of the automatic extended reporting period and of the availability, premium and importance of buying additional extended reporting coverage.", "verbatimQuote": "(1) Within 30 days after termination of coverage, the insurer must advise the insured in writing of the automatic extended reporting period coverage and the availability of, the premium for, and the importance of purchasing additional extended reporting period coverage.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3e1-insurer-written-tail-notice" }, { "id": "nycrr-73-3e2-no-quote-nonpayment-fraud", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(e)(2) — Premium quotation after cancellation for nonpayment or fraud", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(2) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(2)%20Upon%20cancellation%20due%20to,unless%20requested%20by%20the%20insured.", "proposition": "11 NYCRR 73.3(e)(2) provides that, on cancellation for nonpayment of premium or fraud by the insured, an insurer need not provide a premium quotation for extended reporting period coverage unless the insured requests one.", "verbatimQuote": "(2) Upon cancellation due to nonpayment of premium or fraud on the part of the insured, an insurer shall not be required to provide a premium quotation for extended reporting period coverage unless requested by the insured.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3e2-no-quote-nonpayment-fraud" }, { "id": "nycrr-73-3e3-insured-acceptance-window", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(e)(3) — Time to accept extended reporting coverage", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(e)(3) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(3)%20The%20insured%20shall%20have,paragraph%20(1)%20of%20this%20subdivision.", "proposition": "11 NYCRR 73.3(e)(3) gives the insured the greater of 60 days from the effective date of termination or 30 days from the insurer's written advice to submit written acceptance of extended reporting period coverage.", "verbatimQuote": "(3) The insured shall have the greater of the following in which to submit written acceptance of extended reporting period coverage: (i) 60 days from the effective date of termination of coverage; or (ii) 30 days from the date of mailing or delivery of the advice required by paragraph (1) of this subdivision.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3e3-insured-acceptance-window" }, { "id": "nycrr-73-2d2-large-risk-exemptions", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR 73.2(d)(2) — Provisions that large-risk policies need not meet", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(2) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2#:~:text=(2)%20Any%20policy%20issued%20or,section%2073.8%20of%20this%20Part.", "proposition": "11 NYCRR 73.2(d)(2) requires a policy issued or renewed under § 73.2(d) to comply with Part 73 except, among other provisions, § 73.3(e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n).", "verbatimQuote": "(2) Any policy issued or renewed pursuant to this subdivision must comply with all the provisions of this Part, except: (i) subdivisions (e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n) of section 73.3 of this Part; (ii) subdivisions (a)(5), (b) and (c) of section 73.7 of this Part; and (iii) section 73.8 of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-2d2-large-risk-exemptions" }, { "id": "nycrr-73-3c3-large-risk-no-offer-on-reduction", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(c)(3) — Large-risk policies and less-favorable changes", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(c)(3) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(3)%20For%20policies%20issued%20or,section%2073.1(n)(2)%20of%20this%20Part.", "proposition": "11 NYCRR 73.3(c)(3) provides that policies issued or renewed under § 73.2(d)(1) need not offer extended reporting period coverage upon a termination under § 73.1(n)(2).", "verbatimQuote": "(3) For policies issued or renewed pursuant to section 73.2(d)(1) of this Part, extended reporting period coverage need not be offered upon termination of coverage pursuant to section 73.1(n)(2) of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3c3-large-risk-no-offer-on-reduction" }, { "id": "nycrr-73-3g-one-year-do-tail-offer", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(g) — One-year extended reporting period offer", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(g) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(g)%20Upon%20termination%20of%20coverage,section%2073.2(d)%20of%20this%20Part.", "proposition": "11 NYCRR 73.3(g) requires the insurer, on termination of directors and officers liability coverage other than for not-for-profit organizations, to offer a one-year extended reporting period.", "verbatimQuote": "(g) Upon termination of coverage for the following types of coverages or risks, the insurer must offer a one-year extended reporting period: (1) directors and officers liability, except not-for-profit organizations; (2) employee benefits liability; (3) fiduciary liability; (4) public entity liability; (5) pollution and environmental impairment liability; (6) ski resort liability subject to section 73.2(f) of this Part; (7) employment practices liability; and (8) policies issued or renewed pursuant to section 73.2(d) of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3g-one-year-do-tail-offer" }, { "id": "nycrr-73-1s-not-for-profit-501c3", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.1(s) — Not-for-profit organization", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(s) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1#:~:text=(s)%20Not%2Dfor%2Dprofit%20organization%20means%20a,United%20States%20Internal%20Revenue%20Code.", "proposition": "11 NYCRR 73.1(s) defines a not-for-profit organization, for the claims-made regulation, as a corporation, association, organization or trust described in section 501(c)(3) of the Internal Revenue Code.", "verbatimQuote": "(s) Not-for-profit organization means a corporation, association, organization or trust described in section 501(c)(3) of the United States Internal Revenue Code.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-1s-not-for-profit-501c3" }, { "id": "nycrr-73-2d1-large-risk-tail-group", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR 73.2(d)(1) — Large-risk claims-made policies", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(1) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2#:~:text=(1)%20A%20liability%20policy%20may,at%20least%20%24100%2C000%20per%20occurrence.", "proposition": "11 NYCRR 73.2(d)(1) permits a liability policy to be written on a claims-made basis if it insures a large commercial insured, provides at least $5,000,000 of primary coverage per occurrence, provides qualifying umbrella or excess coverage, or carries a deductible or self-insured retention of at least $100,000 per occurrence.", "verbatimQuote": "(1) A liability policy may be issued or renewed in this State on a claims-made basis if the policy: (i) insures a large commercial insured; (ii) provides primary coverage of at least $5,000,000 per occurrence; (iii) provides umbrella or excess coverage of at least $1,000,000 per occurrence, where the underlying limits are at least $2,000,000 per occurrence; or (iv) is written with a deductible, or over a self-insured retention, of at least $100,000 per occurrence.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-2d1-large-risk-tail-group" }, { "id": "nycrr-73-3k-short-relationship-nonpayment-fraud", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(k) — Short relationships ended for nonpayment or fraud", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(k) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(k)%20Where%20a%20claims%2Dmade%20relationship,nonpayment%20of%20premium%20or%20fraud.", "proposition": "11 NYCRR 73.3(k) provides that where a claims-made relationship has lasted less than one year, § 73.3(e) through (h) and (j) do not apply on termination of coverage for nonpayment of premium or fraud.", "verbatimQuote": "(k) Where a claims-made relationship has continued for less than one year, subdivisions (e) through (h) and (j) of this section shall not apply upon termination of coverage for nonpayment of premium or fraud.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3k-short-relationship-nonpayment-fraud" }, { "id": "nycrr-73-3h1-full-aggregate-three-years", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(h)(1) — Aggregate limit after a relationship of three years or more", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(1) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(1)%20Except%20for%20the%20coverages,such%20policy's%20annual%20aggregate%20limit.", "proposition": "11 NYCRR 73.3(h)(1) requires that, except for the coverages listed in § 73.3(g), where a claims-made relationship has lasted at least three years and the policy has an annual aggregate limit, any aggregate limit for the extended reporting period be at least 100 percent of that annual aggregate.", "verbatimQuote": "(1) Except for the coverages delineated in subdivision (g) of this section, where a claims-made relationship has continued for at least three years and the policy contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to 100 percent of such policy's annual aggregate limit.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3h1-full-aggregate-three-years" }, { "id": "nycrr-73-3h2-greater-remaining-or-half", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(h)(2) — Aggregate limit after a relationship under three years", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(2) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(2)%20Except%20for%20the%20coverages,policy's%20annual%20aggregate%20liability%20limit.", "proposition": "11 NYCRR 73.3(h)(2) requires that, except for the coverages listed in § 73.3(g), where a claims-made relationship has lasted less than three years and the policy has an annual aggregate limit, any aggregate limit for the extended reporting period be at least the greater of the remaining annual aggregate or 50 percent of it.", "verbatimQuote": "(2) Except for the coverages delineated in subdivision (g) of this section, where a claims-made relationship has continued for less than three years and the policy contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to the greater of: (i) the amount of coverage remaining in such policy's annual aggregate liability limit; or (ii) 50 percent of such policy's annual aggregate liability limit.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3h2-greater-remaining-or-half" }, { "id": "nycrr-73-3h3-tail-aggregate-remaining-limit", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(h)(3) — Aggregate limit for the one-year group", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(3) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(3)%20Where%20a%20policy%20as,policy's%20annual%20aggregate%20liability%20limit.", "proposition": "11 NYCRR 73.3(h)(3) requires that, for a policy listed in § 73.3(g) with an annual aggregate limit, any aggregate limit for the extended reporting period be at least the amount remaining in the policy's annual aggregate limit.", "verbatimQuote": "(3) Where a policy as specified in subdivision (g) of this section contains an annual aggregate liability limit, the aggregate liability limit, if any, for the extended reporting period coverage shall be at least equal to the amount of coverage remaining in such policy's annual aggregate liability limit.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3h3-tail-aggregate-remaining-limit" }, { "id": "nycrr-73-3h4-decrease-only-cap", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(h)(4) — Termination due only to an aggregate decrease", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(4) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(4)%20Where%20termination%20of%20coverage,the%20amount%20of%20such%20decrease.", "proposition": "11 NYCRR 73.3(h)(4) provides that where termination of coverage is due only to a decrease in the annual aggregate limit, the aggregate limit required for the extended reporting period is no greater than the amount of the decrease.", "verbatimQuote": "(4) Where termination of coverage is due only to a decrease in the policy's annual aggregate liability limit, the aggregate liability limit, if any, required by this subdivision for the extended reporting period coverage shall be no greater than the amount of such decrease.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3h4-decrease-only-cap" }, { "id": "nycrr-73-3h5-no-aggregate-no-tail-cap", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(h)(5) — Policies without an annual aggregate", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(h)(5) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(5)%20Where%20a%20policy%20has,without%20an%20aggregate%20liability%20limit.", "proposition": "11 NYCRR 73.3(h)(5) requires the insurer to provide extended reporting period coverage without an aggregate limit where the policy has no annual aggregate limit.", "verbatimQuote": "(5) Where a policy has no annual aggregate liability limit, the insurer shall provide extended reporting period coverage without an aggregate liability limit.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3h5-no-aggregate-no-tail-cap" }, { "id": "isc-3426-covered-policy-definition", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3426(a)(1) — Covered policy", "citation": "N.Y. Ins. Law § 3426(a)(1) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3426", "proposition": "Insurance Law § 3426(a)(1) defines a covered policy as a policy of commercial risk insurance, professional liability insurance or public entity insurance, including any contract, certificate or other evidence of such insurance.", "verbatimQuote": "(1) “Covered policy” means, for purposes of this section, a policy of commercial risk insurance, professional liability insurance or public entity insurance, and shall include any contract, certificate or other evidence of such insurance.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3426-covered-policy-definition" }, { "id": "isc-3426-l2-excess-line-do-policies", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3426(l)(2) — Policies excluded from cancellation and renewal rules", "citation": "N.Y. Ins. Law § 3426(l)(2) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3426", "proposition": "Insurance Law § 3426(l)(2) provides that § 3426 does not apply to policies written on an excess line basis, among other listed exclusions.", "verbatimQuote": "(2) This section shall not apply to policies issued pursuant to a plan established under article fifty-three, fifty-four or fifty-five of this chapter, surety policies, policies providing workers' compensation or employers' liability coverage, financial guaranty insurance, policies providing mortgage guaranty or credit insurance, policies principally marine insurance as defined by paragraph twenty of subsection (a) of section one thousand one hundred thirteen of this chapter, legal services insurance, reinsurance contracts, policies written on an excess line basis, or policies subject to section three thousand four hundred twenty-five of this chapter.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3426-l2-excess-line-do-policies" }, { "id": "isc-3426-nonrenewal-notice-reasons-timing", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3426(e)(2)–(3) — Nonrenewal and conditional renewal notices", "citation": "N.Y. Ins. Law § 3426(e)(2)–(3) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3426", "proposition": "Insurance Law § 3426(e)(2) and (3) require a nonrenewal or conditional renewal notice to state the specific reasons and to be mailed or delivered at least 60, but not more than 120, days before the policy's expiration, or at least 30 days for an excess liability policy or a jumbo risk.", "verbatimQuote": "(2) A nonrenewal notice as specified in subparagraph (A), a conditional renewal notice as specified in subparagraph (B), and the second notice described in subparagraph (C) of paragraph one of this subsection shall contain the specific reason or reasons for nonrenewal or conditional renewal, set forth the amount of any premium increase (or, where such amount cannot reasonably be determined as of the time the notice is provided, a reasonable estimate of the premium increase based upon the information available to the insurer at that time), and describe in plain and concise terms the nature of any other proposed changes specified in paragraph one of this subsection. The superintendent shall by regulation specify the permissible range of such estimate (which shall not exceed five percent of the actual amount) and the permissible methods by which an insurer may satisfy the notice requirements of this section. (3) The notice required by paragraph one of this subsection shall be mailed or delivered at least sixty, but not more than one hundred twenty, days in advance of the expiration date of the policy, except that for an excess liability policy or a policy issued to a jumbo risk, the notice shall be mailed or delivered at least thirty, but not more than one hundred twenty, days in advance of the expiration date of the policy.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3426-nonrenewal-notice-reasons-timing" } ] }, { "slug": "do-coverage-merger-dissolution-run-off", "label": "What happens to D&O coverage on a merger or dissolution?", "heading": "What happens to a New York organization's D&O coverage, and to its former directors' protection, when it merges, dissolves or winds down?", "answerText": "On a merger or similar transaction, the policy's change-in-control clause usually governs, and commentary describes such clauses as typically converting the policy to run-off coverage for wrongful acts before the change. For a claims-made policy subject to 11 NYCRR Part 73, a director who leaves stays covered for acts during the affiliation through the claims-made relationship and any extended reporting period.", "sources": [ { "id": "aba-change-in-control-pre-transaction-acts", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions (ABA Business Law Today)", "citation": "Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).", "url": "https://www.americanbar.org/groups/business_law/resources/business-law-today/2019-august/lets-make-a-deal/", "proposition": "Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a D&O change-in-control provision typically includes an acquisition, merger, consolidation or sale of more than 50 percent of assets, and that D&O policies cover only wrongful acts before the change in control.", "verbatimQuote": "One of the first insurance questions to ask is whether the particular deal or financial restructuring triggers a “change in control” under the company’s current D&O policy, which typically includes an acquisition, merger, consolidation, or sale of more than 50 percent of assets. Whether this provision is triggered and, if so, when the change in control occurs matters because D&O policies will provide coverage only for wrongful acts that occur before the change in control occurs.", "date": "2019-08-13", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-aba-change-in-control-pre-transaction-acts" }, { "id": "aba-runoff-conversion", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions (ABA Business Law Today)", "citation": "Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).", "url": "https://www.americanbar.org/groups/business_law/resources/business-law-today/2019-august/lets-make-a-deal/", "proposition": "Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a triggered change-in-control provision typically converts D&O coverage to run-off, ending coverage for later conduct while covering pre-transaction conduct through the end of the policy period.", "verbatimQuote": "If a change in control provision is triggered, it typically converts the existing D&O coverage to “runoff,” which means that claims based on conduct after the change in control are no longer covered and that claims based on pretransaction conduct are covered through the end of the policy period.", "date": "2019-08-13", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-aba-runoff-conversion" }, { "id": "nycrr-73-3m-departed-insureds-stay-covered", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(m) — Coverage after affiliation ends", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(m) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(m)%20During%20a%20claims%2Dmade%20relationship,or%20omissions%20during%20such%20affiliation.", "proposition": "11 NYCRR 73.3(m) requires that a person affiliated with the insured and covered during that affiliation remain covered, during the claims-made relationship and any extended reporting period, for covered acts or omissions during the affiliation after it ends.", "verbatimQuote": "(m) During a claims-made relationship and any extended reporting period, a person employed or otherwise affiliated with the insured and covered by the insured's claims-made policy during such affiliation, shall continue to be covered under such policy and any extended reporting period after such affiliation has ceased for such person's covered acts or omissions during such affiliation.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3m-departed-insureds-stay-covered" }, { "id": "nycrr-73-3n1-individual-tail-entity-ceases", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(n)(1) — Individual extended reporting coverage when the entity ends", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(n)(1) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(1)%20A%20claims%2Dmade%20policy%20issued,section%2073.2(a)%20of%20this%20Part.", "proposition": "11 NYCRR 73.3(n)(1) requires individual extended reporting coverage when its stated conditions are met and the coverage or risk is among those enumerated in § 73.2(a)(2), (3), (4), (6) or (10).", "verbatimQuote": "(1) A claims-made policy issued to a corporation, partnership or other entity shall provide extended reporting period coverage upon termination of coverage to any person covered under the policy, if: (i) such entity has been placed in liquidation or bankruptcy or permanently ceases operations; (ii) the entity or its designated trustee does not purchase extended reporting period coverage; (iii) such person requests the extended reporting period coverage within 120 days of the termination of coverage; and (iv) the coverage or risk is of the type enumerated in paragraph (2), (3), (4), (6) or (10) of section 73.2(a) of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3n1-individual-tail-entity-ceases" }, { "id": "nycrr-73-2-claims-made-permitted-coverages-wind-down", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.2 — Types of coverages and risks", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2 (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2#:~:text=Claims%2Dmade%20coverage%20any%20not%20be,paragraph%20(d)(1)%20of%20this%20section.", "proposition": "11 NYCRR 73.2 bars claims-made coverage in policies issued or renewed in New York except as the section allows, and § 73.2(a) permits directors and officers liability, among other listed coverages, to be written on a claims-made basis.", "verbatimQuote": "Claims-made coverage any not be provided in any policy issued or renewed in this State, except that: (a) The following coverages or risks may be written on a claims-made basis: (1) completed operations liability; (2) directors and officers liability; (3) employee benefits liability; (4) errors and omissions liability; (5) excess liability; (6) fiduciary liability; (7) pollution and environmental impairment liability; (8) public entity liability; (9) products liability; (10) professional liability (including medical malpractice liability); (11) ski resort liability, subject to subdivision (f) of this section; (12) employment practices liability; and (13) risks specified in paragraph (d)(1) of this section.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-2-claims-made-permitted-coverages-wind-down" }, { "id": "nycrr-73-2d2-large-risk-exemptions-wind-down", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR 73.2(d)(2) — Provisions that large-risk policies need not meet", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.2(d)(2) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.2#:~:text=(2)%20Any%20policy%20issued%20or,section%2073.8%20of%20this%20Part.", "proposition": "11 NYCRR 73.2(d)(2) requires a policy issued or renewed under § 73.2(d) to comply with Part 73 except, among other provisions, § 73.3(e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n).", "verbatimQuote": "(2) Any policy issued or renewed pursuant to this subdivision must comply with all the provisions of this Part, except: (i) subdivisions (e)(1), (e)(3)(ii), (f), (h)(1), (2) and (4), and (n) of section 73.3 of this Part; (ii) subdivisions (a)(5), (b) and (c) of section 73.7 of this Part; and (iii) section 73.8 of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-2d2-large-risk-exemptions-wind-down" }, { "id": "nycrr-73-3n2-no-notice-of-individual-tail", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(n)(2) — No notice duty for individual extended reporting coverage", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(n)(2) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(2)%20The%20insurer%20shall%20have,paragraph%20(1)%20of%20this%20subdivision.", "proposition": "11 NYCRR 73.3(n)(2) relieves the insurer of any obligation to notify a covered person that individual extended reporting coverage under § 73.3(n)(1) is available.", "verbatimQuote": "(2) The insurer shall have no obligation to provide any notice to any such person of the availability of the extended reporting period coverage required by paragraph (1) of this subdivision.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3n2-no-notice-of-individual-tail" }, { "id": "aba-change-in-control-notice-condition", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions (ABA Business Law Today)", "citation": "Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).", "url": "https://www.americanbar.org/groups/business_law/resources/business-law-today/2019-august/lets-make-a-deal/", "proposition": "Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a change-in-control provision may require notice to the insurer within a set time to preserve coverage for the restructured entity.", "verbatimQuote": "The change in control provision may also include conditions requiring that the company provide notice to the insurer within a certain amount of time to preserve coverage for the restructured entity.", "date": "2019-08-13", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-aba-change-in-control-notice-condition" }, { "id": "aba-tail-endorsement-reduced-limits", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions (ABA Business Law Today)", "citation": "Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).", "url": "https://www.americanbar.org/groups/business_law/resources/business-law-today/2019-august/lets-make-a-deal/", "proposition": "Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today reports a dispute in which a tail coverage endorsement extended the reporting period but reduced the limits for the rest of the initial policy period from $15 million to $5 million.", "verbatimQuote": "To avoid any gap in coverage for pretransaction conduct, GlassHouse purchased tail coverage by endorsing the policy, but as GlassHouse later learned, the tail coverage endorsement not only extended the reporting period for several years, it also reduced the limits for the remainder of the initial policy period from $15 to $5 million.", "date": "2019-08-13", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-aba-tail-endorsement-reduced-limits" }, { "id": "nycrr-73-1n-termination-of-coverage-wind-down", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.1(n) — Termination of coverage", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(n) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1#:~:text=(n)%20Termination%20of%20coverage%20means%2C,less%20favorable%20to%20the%20insured.", "proposition": "11 NYCRR 73.1(n) defines termination of coverage to include cancellation or nonrenewal by the insurer or the insured, and any decrease in limits, reduction of coverage, new exclusion or other change less favorable to the insured.", "verbatimQuote": "(n) Termination of coverage means, whether made by the insurer or the insured at any time: (1) cancellation or nonrenewal of a policy; or (2) decrease in limits, reduction of coverage, increased deductible or self-insured retention, new exclusion, or any other change in coverage less favorable to the insured.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-1n-termination-of-coverage-wind-down" } ] }, { "slug": "broker-questions-written-confirmation", "label": "What should be confirmed with the broker about D&O coverage?", "heading": "What should a New York organization confirm in writing with its insurance broker about its D&O coverage?", "answerText": "Under New York Insurance Law § 502(c), a certificate of insurance cannot amend, extend or alter the policy or confer rights beyond it, so written confirmation of D&O coverage should come from the policy and its endorsements. That confirmation should identify the insured entities and people, the kinds of claims excluded, the reporting deadlines and tail terms, and how limits are shared, a list that is our synthesis of the questions in the table below.", "sources": [ { "id": "venable-policies-miss-affiliates", "authorityType": "law-firm-commentary", "tier": "lawyer-judgment-backed", "title": "You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Venable LLP)", "citation": "Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).", "url": "https://www.venable.com/files/Publication/e2c6e1b2-56f2-449f-bbe9-c25d84d5f02c/Preview/PublicationAttachment/121161d6-94df-4e4c-b456-c7bf0230ebf2/Nonprofits-Director-Officers-Insurance-Coverage.pdf", "proposition": "Venable LLP commentary states that insurance policies often misidentify the purchasing nonprofit or fail to extend coverage to all the organizations that should benefit, such as subsidiary or affiliated organizations.", "verbatimQuote": "Insurance policies often misidentify the nonprofit that purchased them, include the wrong address for the nonprofit, or fail to extend coverage to all of the organizations that should receive insurance benefits, such as subsidiary or affiliated organizations.", "date": "2012-10-16", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-venable-policies-miss-affiliates" }, { "id": "massena-bodily-injury-exclusion-broker-table", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=The%20policy%20limits%20this%20coverage,of%20character%E2%80%9D%20or%20similar%20torts.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals described the executive liability policy before it as excluding loss arising out of or related to bodily injury, libel, slander, defamation and similar torts.", "verbatimQuote": "The policy limits this coverage by excluding, among other things, any loss “arising out of’ or otherwise related to “bodily injury * * * libel, slander, defamation of character” or similar torts.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-bodily-injury-exclusion-broker-table" }, { "id": "isc-3420-a5-reporting-window-broker-table", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 3420(a)(5) — Late notice and claims-made policies", "citation": "N.Y. Ins. Law § 3420(a)(5) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/3420", "proposition": "Insurance Law § 3420(a)(5) allows a claims-made policy to require that the claim be made during the policy period, any renewal or any extended reporting period, subject to paragraph (4).", "verbatimQuote": "With respect to a claims-made policy, however, the policy may provide that the claim shall be made during the policy period, any renewal thereof, or any extended reporting period, except as provided in paragraph four of this subsection.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-3420-a5-reporting-window-broker-table" }, { "id": "sherman-neely-erosion-broker-table", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess (The D&O Diary)", "citation": "Scott N. Sherman & Edgar A. Neely IV, Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess, The D&O Diary (Sept. 24, 2026).", "url": "https://www.dandodiary.com/2026/09/articles/d-o-insurance/director-checklist-for-do-policies-10-key-terms-and-provisions-boards-should-assess/", "proposition": "Commentary by Scott N. Sherman and Edgar A. Neely IV states that multiple claims or claims against the company itself may erode the D&O limit available to directors personally.", "verbatimQuote": "A $15 million policy does not necessarily provide $15 million of protection to directors personally. Multiple claims or claims against the company itself may erode the available limit.", "date": "2026-09-24", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-sherman-neely-erosion-broker-table" }, { "id": "isc-502c-certificate-no-added-rights", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 502(c) — Certificates do not alter coverage", "citation": "N.Y. Ins. Law § 502(c) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/502", "proposition": "Insurance Law § 502(c) provides that a certificate of insurance does not amend, extend or alter the coverage of the referenced policy and confers no rights beyond those the policy expressly provides.", "verbatimQuote": "(c) A certificate of insurance shall not amend, extend, or alter the coverage provided by the insurance policy to which the certificate of insurance makes reference. A certificate of insurance shall further not confer to any person any rights beyond those expressly provided by the policy of insurance referenced therein.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-502c-certificate-no-added-rights" }, { "id": "isc-501a-certificate-excludes-policy-binder", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "N.Y. Ins. Law § 501(a) — Definition of certificate of insurance", "citation": "N.Y. Ins. Law § 501(a) (2026).", "url": "https://www.nysenate.gov/legislation/laws/ISC/501", "proposition": "Insurance Law § 501(a) defines a certificate of insurance as a document prepared or issued by an insurer or insurance producer as evidence of property/casualty insurance coverage, and excludes a policy of insurance and an insurance binder from that definition.", "verbatimQuote": "(a) “Certificate” or “certificate of insurance” means any document or instrument, or addendum thereto no matter how titled or described, prepared or issued by an insurer or insurance producer as evidence of property/casualty insurance coverage. “Certificate” or “certificate of insurance” shall not include a policy of insurance or an insurance binder.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-isc-501a-certificate-excludes-policy-binder" }, { "id": "venable-broker-communication-in-writing", "authorityType": "law-firm-commentary", "tier": "lawyer-judgment-backed", "title": "You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Venable LLP)", "citation": "Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).", "url": "https://www.venable.com/files/Publication/e2c6e1b2-56f2-449f-bbe9-c25d84d5f02c/Preview/PublicationAttachment/121161d6-94df-4e4c-b456-c7bf0230ebf2/Nonprofits-Director-Officers-Insurance-Coverage.pdf", "proposition": "Venable LLP commentary recommends that a nonprofit, even when a broker reports a claim or other significant development to an insurer, insist that the communication be in writing, receive a copy and confirm the message was delivered.", "verbatimQuote": "A nonprofit’s emphasis nonetheless should be on delegation, not abdication. Even if a broker will report a claim or other significant development to an insurer, the nonprofit should insist that the communication be in writing, receive a copy, and follow up to make sure that the message was delivered.", "date": "2012-10-16", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-venable-broker-communication-in-writing" }, { "id": "massena-insured-coverage-burden-broker-table", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=The%20hospital%20has%20not%2C%20however%2C,officers%20or%20directors%20or%20otherwise.", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals held that the hospital had not met its burden of showing that the remaining tortious-interference conduct was covered, because the complaint did not allege that the doctors acted in their insured capacity as officers or directors.", "verbatimQuote": "The hospital has not, however, met its burden of showing that the tortious conduct is covered. Franzon’s tortious interference claims against the hospital are centered around three physicians’ failure to refer patients to him. This conduct could only occur in the doctors’ respective roles as members of an insurance network. Franzon’s complaint, however, does not allege whether the doctors’ conduct in question occurred while they were acting in their “insured capacity” as officers or directors or otherwise.", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-insured-coverage-burden-broker-table" }, { "id": "massena-exclusion-burden-broker-table", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Town of Massena v. Healthcare Underwriters Mutual Insurance Co.", "citation": "Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (2002).", "url": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/", "deepLink": "https://www.courtlistener.com/opinion/2070600/town-of-massena-v-healthcare-underwriters-mutual-insurance/#:~:text=When%20an%20exclusion%20clause%20is,74%20NY2d%20at%2073%2D74%20).", "proposition": "In Town of Massena v. Healthcare Underwriters Mutual Insurance Co., the Court of Appeals stated that, when an insurer relies on an exclusion to deny a defense, it bears the burden of showing that the complaint's allegations can be interpreted only to exclude coverage.", "verbatimQuote": "When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325 [1974]; Technicon, 74 NY2d at 73-74 ).", "date": "2002-09-17", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-massena-exclusion-burden-broker-table" }, { "id": "lacroix-subsidiary-questions-broker-table", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Executive Protection: D&O Insurance – The Insuring Agreement (The D&O Diary)", "citation": "Kevin LaCroix, Executive Protection: D&O Insurance – The Insuring Agreement, The D&O Diary (Aug. 5, 2010).", "url": "https://www.dandodiary.com/2010/08/articles/d-o-insurance/executive-protection-do-insurance-the-insuring-agreement/", "proposition": "Kevin LaCroix's D&O Diary commentary states that questions can arise whether an entity is a subsidiary depending on the parent's ownership percentage, and that most policies have specific provisions for organizations formed or acquired after the policy's inception.", "verbatimQuote": "Questions can arise whether or not an entity is a subsidiary (depending on the corporate parent’s ownership percentage). Questions can also arise about organizations formed or acquired after the policy’s inception. Most policies have very specific policy provisions addressing these subsequent formations or acquisitions.", "date": "2010-08-05", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-lacroix-subsidiary-questions-broker-table" }, { "id": "venable-volunteers-not-always-insured", "authorityType": "law-firm-commentary", "tier": "lawyer-judgment-backed", "title": "You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Venable LLP)", "citation": "Venable LLP, You're Not Covered for Everything: Making Sure that Your Nonprofit's Directors & Officers Insurance Coverage Matches Your Expectations (Oct. 16, 2012).", "url": "https://www.venable.com/files/Publication/e2c6e1b2-56f2-449f-bbe9-c25d84d5f02c/Preview/PublicationAttachment/121161d6-94df-4e4c-b456-c7bf0230ebf2/Nonprofits-Director-Officers-Insurance-Coverage.pdf", "proposition": "Venable LLP commentary states that nonprofits sometimes overlook whether their policies cover everyone who performs their work, an issue that frequently arises with volunteers, who are not always among the classes of covered people.", "verbatimQuote": "Nonprofits sometimes overlook the importance of ensuring that their policies extend coverage to all of the people who perform their work. This issue frequently arises with regard to volunteers, who are not always among the classes of people to whom coverage is extended.", "date": "2012-10-16", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-venable-volunteers-not-always-insured" }, { "id": "marsh-odl-excess-broker-table", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (Marsh)", "citation": "Marsh FINPRO, Are You Confident? Outside Directorship Liability Coverage Considerations When Serving on the Boards of Outside Entities (2017).", "url": "https://www.marsh.com/content/dam/marsh/Documents/PDF/US-en/Outside%20Directorship%20Liability%20Coverage.pdf", "proposition": "A publication by Marsh, an insurance broker, states that outside directorship coverage most commonly applies excess of the outside entity's indemnification and the outside entity's own D&O program.", "verbatimQuote": "D&O policies often contain an ODL extension that most commonly works on a “double excess basis,” where a company’s ODL coverage applies excess of the outside entity’s indemnification to the director or officer and the outside entity’s own D&O program.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-marsh-odl-excess-broker-table" }, { "id": "nycrr-73-3g-do-tail-broker-table", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(g) — One-year extended reporting period offer", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(g) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(g)%20Upon%20termination%20of%20coverage,section%2073.2(d)%20of%20this%20Part.", "proposition": "11 NYCRR 73.3(g) requires a one-year extended reporting period offer on termination of directors and officers liability coverage, except for not-for-profit organizations.", "verbatimQuote": "(g) Upon termination of coverage for the following types of coverages or risks, the insurer must offer a one-year extended reporting period: (1) directors and officers liability, except not-for-profit organizations; (2) employee benefits liability; (3) fiduciary liability; (4) public entity liability; (5) pollution and environmental impairment liability; (6) ski resort liability subject to section 73.2(f) of this Part; (7) employment practices liability; and (8) policies issued or renewed pursuant to section 73.2(d) of this Part.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3g-do-tail-broker-table" }, { "id": "nycrr-73-1s-501c3-broker-table", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.1(s) — Not-for-profit organization", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.1(s) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.1#:~:text=(s)%20Not%2Dfor%2Dprofit%20organization%20means%20a,United%20States%20Internal%20Revenue%20Code.", "proposition": "11 NYCRR 73.1(s) defines a not-for-profit organization, for the claims-made regulation, as a corporation, association, organization or trust described in section 501(c)(3) of the Internal Revenue Code.", "verbatimQuote": "(s) Not-for-profit organization means a corporation, association, organization or trust described in section 501(c)(3) of the United States Internal Revenue Code.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-1s-501c3-broker-table" }, { "id": "nycrr-73-3f-three-year-offer-broker-table", "authorityType": "regulation", "tier": "primary-source-backed", "title": "11 NYCRR § 73.3(f) — Three-year extended reporting period offer", "citation": "N.Y. Comp. Codes R. & Regs. tit. 11, § 73.3(f) (2026).", "url": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3", "deepLink": "https://www.law.cornell.edu/regulations/new-york/11-NYCRR-73.3#:~:text=(f)%20Except%20as%20provided%20in,a%20three%2Dyear%20extended%20reporting%20period.", "proposition": "11 NYCRR 73.3(f) requires an insurer, except as subdivision (g) and sections 73.4 and 73.5 provide, to offer a three-year extended reporting period on termination of coverage.", "verbatimQuote": "(f) Except as provided in subdivision (g) of this section, and sections 73.4 and 73.5 of this Part, upon termination of coverage, an insurer must offer the insured a three-year extended reporting period.", "date": "2026-10-08", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-nycrr-73-3f-three-year-offer-broker-table" }, { "id": "segal-excess-line-exempt-broker-table", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Segal Co. v. Certain Underwriters at Lloyd's", "citation": "Segal Co. v. Certain Underwriters at Lloyd's, 21 A.D.3d 138 (1st Dep't 2005).", "url": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/", "deepLink": "https://www.courtlistener.com/opinion/5831921/segal-co-v-certain-underwriters-at-lloyds/#:~:text=Policies%20procured%20from%20unauthorized%20insurers,328%20%2C%20332%20n%20%5B1996%5D).", "proposition": "In Segal Co. v. Certain Underwriters at Lloyd's, the Appellate Division, First Department, stated that policies procured from unauthorized insurers by licensed excess line brokers are exempt from Regulation 121, New York's claims-made regulation in 11 NYCRR Part 73.", "verbatimQuote": "Policies procured from unauthorized insurers by licensed excess line brokers are exempt from the provisions of Regulation 121 (11 NYCRR 27.10 [a]; see Matter of John Paterno, Inc. v Curiale, 88 NY2d 328 , 332 n [1996]).", "date": "2005-06-30", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-segal-excess-line-exempt-broker-table" }, { "id": "aba-runoff-broker-table", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions (ABA Business Law Today)", "citation": "Syed Ahmad & Geoffrey Fehling, Let's Make a Deal: Four D&O Coverage Issues to Consider in M&A Transactions, Bus. L. Today (Aug. 13, 2019).", "url": "https://www.americanbar.org/groups/business_law/resources/business-law-today/2019-august/lets-make-a-deal/", "proposition": "Commentary by Syed Ahmad and Geoffrey Fehling in ABA Business Law Today states that a triggered change-in-control provision typically converts D&O coverage to run-off.", "verbatimQuote": "If a change in control provision is triggered, it typically converts the existing D&O coverage to “runoff,” which means that claims based on conduct after the change in control are no longer covered and that claims based on pretransaction conduct are covered through the end of the policy period.", "date": "2019-08-13", "anchor": "https://openagreements.org/practice-guides/directors-and-officers-insurance/us/new-york#src-aba-runoff-broker-table" } ] } ] } }