DECISION and ORDER
Plaintiffs New York Bankers Association, Inc., Canandaigua National Bank and Trust Company, and CNB Operating Subsidiary No. 1, Inc., bring this action pursuant to the United States Constitution and the National Bank Act, codified at 12 U.S.C. § 24 et. seq. claiming that defendant Neil Levin, ("Levin" or "the Superintendent"), in his capacity as the Superintendent of the State of New York Insurance Department has violated their federal and constitutional rights by improperly enforcing § 2501 of the New York Insurance Law, against them. Specifically, plaintiffs allege that § 2501, which prohibits banking institutions from negotiating real or personal property insurance policies which are the subject matter, or security for, a loan made from a bank, is pre-empted by the National Bank and Federal Reserve Acts, and that the Superintendent should be enjoined from enforcing that section against them.
Defendant Levin, and intervenor-defendants the New York State Association of Life Underwriters, Inc., the Professional Insurance Agents of New York, Inc., and the Independent Insurance Agents Association of New York, Inc., move for a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure on grounds that they are unable to respond to plaintiffs' factual allegations without first engaging in discovery. Defendants argue that without discovery, they are unable to respond to plaintiffs' claims that the enforcement of § 2501 against the them "significantly interferes with" their authority under the National Banks Act to sell insurance policies.
The Office of the Comptroller of the Currency, and the Community Bankers Association of New York State, Inc., move to file amicus curiae briefs in support of plaintiffs' motion for summary judgment.
For the reasons set forth below, I hereby grant plaintiffs' motion for summary judgment, deny defendants' motion for a continuance, and grant the amicus petitioners' motions to file an amicus brief.
Plaintiff Canandaigua National Bank, ("Canandaigua"), is a nationally-chartered banking association organized and existing under the National Bank Act, codified at 12 U.S.C. § 21 et. seq. As part of its banking business, Canandaigua owns and operates a branch bank at 4 Main Street in the Village of Bloomfield, New York. According to 1990 Census data, the Village of Bloomfield has a population of 1331 inhabitants.
In October 1996, pursuant to Article 21 of the New York Insurance Law, Canandaigua applied for an insurance agent's license to sell insurance policies at its Bloomfield branch. On July 18, 1997, the Insurance Department granted Canandaigua's request, subject to conditions imposed upon the bank under Section 2501 of the New York Insurance law which provides in relevant part that:
No insurance agent or broker . . . who is owned or controlled, directly or indirectly by a bank shall negotiate any policy of insurance covering real or personal property which is the subject matter of, or security for a loan or extensions of credit made by the bank of any other bank which is owned or controlled, directly or indirectly, by such bank.
Insurance Law § 2501(a)(McKinney 1985).
Plaintiffs contend that their right to sell insurance as conferred upon them by Section 13 of the Federal Reserve Act cannot be restricted by the application of § 2501(a). Section 13 of that Act, which is codified at 12 U.S.C. § 92, gives national banks the right to sell insurance policies provided that the bank does business in a community of 5,000 inhabitants or less, as determined by the most recent decennial census. 12 U.S.C.A. § 92. (West supp. 1997). Section 13 of the Federal Reserve Act provides in relevant part that:
In addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company; and may receive for services so rendered such fees or commissions as may be agreed upon between the said association and the insurance company for which it may act as agent . . . .