(dissenting). The issue is whether the Superintendent of Insurance has the statutory authority to appoint independent, nondepartmental hearing officers to preside over hearings within the Department of Insurance. In responding in the affirmative, the majority relies upon the absence of any prohibition contained in the Insurance Law. To the contrary, the relevant inquiry is the extent of express legislative authority conferred upon the Superintendent. In my view, the nomenclature used by the Superintendent in designating these independent, per diem hearing officers as “Special Deputies”, is insufficient to create power where none exists.
Petitioner, American Transit Insurance Company, is a domestic insurer, licensed by the Insurance Department. On April 22, 1983, the Superintendent appointed “a Special Deputy Superintendent”, to conduct hearings on possible violations of insurance regulations as to proposed rates filed by petitioner. The hear*34ings, involving the fixation and approval of rates are clearly of a complex nature and, as a result, were expected to be protracted. This CPLR article 78 proceeding was brought to enjoin the holding of a hearing upon allegations that the Superintendent, by designating an outside, nondepartmental hearing officer, was acting in excess of authority under the Insurance Law and related regulations.
Section 10 of the Insurance Law creates “an insurance department”, headed by “the superintendent of insurance”. Subdivision 1 of section 11 of the Insurance Law vests in the Superintendent the power to appoint “a first deputy superintendent” and to “appoint other deputies as provided for by law” (emphasis added). The statutory authority for the conduct of departmental hearings is contained in section 23 of the Insurance Law as follows: “Unless otherwise provided in this chapter, any hearing pursuant to this chapter may be held before the superintendent, any deputy superintendent, or any competent salaried employee of the department authorized by the superintendent for such purpose” (emphasis added). The insurance regulations (11 NYCRR 4.2 [a]) track the language of the statute and similarly direct that adjudicatory proceedings
“shall be conducted by a presiding officer chosen from among the following persons:
“(1) the Superintendent of Insurance;
“(2) any Deputy Superintendent of Insurance; or
“(3) any competent salaried employee of the department authorized by the superintendent for such purpose.”
I fully agree with my colleagues that the Superintendent has the power to interpret, clarify and implement legislative policy (Ostrer v Schenck, 41 NY2d 782, 785) and that his authority extends to power “reasonably implied” from the statute. However, the Superintendent’s authority is restricted in that it may not extend beyond the express power conferred by the Legislature. The statute clearly does not contain a* provision which gives general authority to the Superintendent to retain independent, outside persons as hearing officers, as was done in this case. The fact that the Superintendent designates the hearing officer “a Special Deputy” is not controlling. In my view, the majority improperly relies upon the appellation used in making the appointment and thereby exalts form over substance. My colleagues also overlook that the title “Deputy Superintendent” has a precise meaning and refers to the title held by specifically designated persons, each a Deputy Superintendent with respon*35sibility for a particular area of regulation within the Department of Insurance.
Both the statute and implementing regulations are clear as to the legislative intention to restrict the authority of the Superintendent so that hearings may be held only before the Superintendent, any Deputy Superintendent, or any competent salaried employee of the Department. Had the Legislature intended to confer broader power upon the Superintendent, as the majority has held here, it would have specifically done so and it would have been unnecessary to further limit the designation in section 23 of the Insurance Law of those persons authorized to preside, to “any competent salaried employee of the department”.
While the majority reaches its conclusion based upon the absence of any prohibition in the Insurance Law against the designation of outside, nondepartmental hearing officers, their conclusion does not take into account that the Superintendent has only the power which the Legislature conferred upon him. Nothing in the statute authorizes the holding of such hearings before independent hearing officers, concededly retained on a per diem basis and not salaried employees of the Department. The legislative wisdom underlying such restrictive statutory authority is not before us. I believe the Legislature had a definite purpose in expressly providing for a different procedure as to insurance hearings than for the holding of departmental or agency hearings by other administrative and executive departments.
For example, section 41 of the Executive Law authorizes the Comptroller to appoint four Deputies and broadly authorizes him to appoint “such other officers, assistants and employees as he may deem necessary for the exercise and performance of his powers and duties and those of the department.” Similarly, section 62 of the Executive Law authorizes the Attorney-General to “appoint such assistant attorneys-general, deputy assistant attorneys-general and attorneys as he may deem necessary” and provides that any reference in the statute to Deputy or Deputy Attorney-General “shall be deemed to refer to and include assistant attorneys-general, deputy assistant attorneys-general or attorneys appointed by the attorney-general.” The fact that the Executive Law, in dealing with the Comptroller and the Attorney-General, confers broader authority than the more restrictive statutory provisions as to the Insurance Department in sections 11 and 23 of the Insurance Law, is a legislative determination and compels the conclusion that the limitation as *36to Insurance Department was by designation. Conceivably, the Legislature recognized that proceedings within the Insurance Department may be complex, such as the fixing of rates and premiums, as here, where technical expertise would be desirable and critical. In my view, what is dispositive is the absence of any express statutory provision authorizing the use of independent hearing officers, not salaried employees of the Department.
Section 303 of the State Administrative Procedure Act, relied upon by the majority, has no application here. The statute, authorizing the designation of hearing officers to preside over agency hearings, provides “[ejxcept as otherwise provided by statute,” thus eliminating from its scope those areas where the Legislature has enacted express statutory provisions. In connection with hearings held within the Insurance Department, the Legislature has “otherwise provided” in section 23 of the Insurance Law that hearings be held before “the superintendent, any deputy superintendent, or any competent salaried employee of the department authorized by the superintendent for such purpose.”
Moreover, the term “Deputy” Superintendent is explicitly defined in subdivision 13 of section 4 of the Insurance Law as “the first, or other deputy superintendent of insurance of this state.” There is no other definition or provision for the appointment of “Special Deputy Superintendents”, except in liquidation proceedings, where section 532 of the Insurance Law provides for appointment of and compensation for “special deputy and assistant special deputy superintendents of insurance”. Section 532, however, is inapplicable here since it is expressly limited to liquidation and rehabilitation proceedings provided for in article XVI (Insurance Law, § 510 et seq.).
The legislative history of sections 11 and 23 of the Insurance Law further supports the conclusion reached at Special Term. The present statute was enacted as part of a recodification of the Insurance Law in 1939 (L 1939, ch 882). Prior to the recodification, however, the statutory language was different and broader and provided in then section 5 of the Insurance Law referring to Deputy Superintendent and clerks: “The superintendent of insurance shall employ from time to time necessary clerks to discharge such duties and to be paid such compensation as he shall prescribe. He shall appoint one or more of such clerks to be his deputies.” This section was deleted in the 1939 recodification and the present section 23 of the Insurance Law was enacted, containing a provision restricting the persons who may preside over departmental adjudicatory proceedings. The change in the *37legislative provision is significant and evinces an intention to limit who may be hearing officers. While the majority states that the use of outside hearing officers has been “the customary practice” within the Insurance Department, this is not pertinent to the issue in the face of the present challenge. The propriety of the procedure is governed by the express legislative authority conferred upon the Superintendent. As applied here, the absence of legislative authority to retain outside, nondepartmental hearing officers, whatever they may be called, is dispositive. Since the power to do so was not vested in the Superintendent, it does not exist. In my view, my colleagues have improperly engaged in judicial legislation by expanding the statutory power of the Superintendent.
Accordingly, the judgment, Supreme Court, New York County (Edward Greenfield, J.), entered March 23, 1984, declaring that the Superintendent acted without statutory authority in designating an independent, outside hearing officer and directing that a proper designation be made in accordance with section 23 of the Insurance Law should be affirmed.
Asch, J. P., and Silverman, J., concur with Milonas, J.; Kassal, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on March 23, 1984, reversed, on the law, to the extent appealed from, and the petition dismissed to the extent appealed from. Appellant shall recover of petitioner-respondent $75 costs and disbursements of this appeal.