Opinion
May 25, 1999
Appeal from the order, Supreme Court, New York County (Richard Braun, J.).
In this action seeking legal and equitable relief for defendants' allegedly improper investment policies with respect to the Variable B Annuity Program (L 1982, ch 735), the motion court properly denied defendants' motion for summary judgment to permit plaintiffs to complete discovery (CPLR 3212 [f]). Further, while defendants correctly point out that the "[i]ntent and purposes" statement found in section 1 of chapter 735 was never enacted in the form of an amendment to the New York City Administrative Code and thus "do[es] not control or affect its terms" (McKinney's Cons Laws of N.Y., Book 1, Statutes § 122), it is, nonetheless an expression of how the Legislature intended the Variable B fund portfolio to be composed ( see, Price v. Forrest, 173 U.S. 410, 427; Westchester County Socy. for Prevention of Cruelty to Animals v. Mengel, 266 App. Div. 151, 155, affd 292 N.Y. 121), and indicates with some clarity that the Variable B Annuity fund portfolio was envisioned by the Legislature as including both fixed income securities and equities. Accordingly, the motion court properly found that there was a factual issue raised as to whether the Trustees acted prudently in failing to include equities in the Variable B fund portfolio ( see, Matter of Janes, 90 N.Y.2d 41, 50-52).
Concur — Ellerin, P. J., Rosenberger, Williams and Andrias, JJ.