The plaintiff Medical Malpractice Insurance Association (Association) was created by the New York Legislature in 1975 (L 1975, ch 109, § 17) to meet a crisis created by the withdrawal of the leading medical malpractice insurer from this market. The Association is an unincorporated and nonprofit group of all the insurers writing personal injury liability insurance in New York State. It is a legal entity separate and distinct from its members (Insurance Law § 5502 [b]). It offers primary policies with limits up to $1,000,000 per single claim and $3,000,000 for all claims in any one policy year (Insurance Law § 5502 [e] [1]) to physicians and surgeons who choose to apply.
All the authorized insurers which issue primary medical malpractice insurance having the policy limits described above were directed in 1985, by the Legislature, to provide excess coverage to their primary insureds of at least $1,000,000 per *188claimant and $3,000,000 for all claimants (L 1985, ch 294, § 17). However, the Association must not only offer such coverage to its own insureds in excess of the primary limits, but also must offer excess malpractice coverage to all applicants irrespective of their primary insurer (L 1986, ch 266, § 11; L 1985, ch 294, §§ 17, 18).
In connection with the initial legislation creating the Association, the Legislature set up a stabilization reserve fund which was to be used to offset any deficits arising out of its operations (Insurance Law § 5509; L 1975, ch 109, § 17). The reserve fund for primary policies was funded by the Association’s physician insureds, who were required to pay a 20% premium over the annual rate until the fund exceeded $50,000,000 (Insurance Law § 5509 [b]).
In reform legislation enacted in 1985 to ameliorate the burden of exorbitant insurance premiums on practicing physicians, the Legislature provided that the premium and the 20% reserve fund premium charge for excess policies effective between July 1, 1985 and June 30, 1986 were to be paid by the hospital for any attending physician at such hospital (L 1985, ch 294, § 19).
The Association issued these excess policies subject to the same 20% surcharge which it applied to all primary policies and, as a result, it collected large premium amounts from hospitals for the excess coverage, with the 20% surcharge being deposited into the stabilization reserve fund.
The Medical Malpractice Reform Act of 1986 (L 1986, ch 266) was enacted to correct the "upward pressure on already high malpractice premiums” (L 1986, ch 266, § 1). To reduce the costs of malpractice insurance, the Legislature enacted various changes to the Insurance Law, including giving authority to the Superintendent of Insurance to establish medical malpractice insurance rates for the period commencing July 1, 1985 through June 30, 1988, and providing that the Superintendent could establish surcharges on premiums after July 1, 1989, to satisfy any projected deficits as a result of the rates established for the target period of 1985-1988 (see, Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins., — AD2d —, — [Asch, J., dissenting]).
To further ameliorate the burden on physicians and to meet the spiraling costs of health care, the Legislature provided that excess policies, including those issued in the retrospective period of 1985-1986, would not be subject to the stabilization *189reserve fund charge (Insurance Law § 5502, as amended by Laws of 1986, ch 266). This amendment additionally provided that the Association should refund or credit the accounts of hospitals which paid this surcharge on excess insurance on behalf of physicians during the retrospective period.
These provisions (L 1986, ch 266, §§ 11, 40) precipitated the instant declaratory judgment action by the Association. It sought a declaration that Laws of 1986 (ch 266, §§ 11, 40) are invalid under the US and NY Constitutions, in that they deprive the Association of due process of law, interfere with vested property rights and abrogate preexisting contractual obligations.
The court at nisi prius denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 but did not address the issues raised by the parties with respect to section 40 and the rates promulgated thereunder by the Superintendent’s use of surcharges after July 1, 1989 to keep the rates in the 1985-1988 target period as low as possible. Since this was challenged by plaintiff and discussed in Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. (supra [dissent by Asch, J.]), and since for the most part the parties do not address this issue on this appeal, I will confine my discussion to Laws of 1986 (ch 266, § 11), the court’s denial of defendants’ motion to dismiss as to that claim and its grant of a preliminary injunction enjoining the implementation of section 11.
It is black letter law that courts will strongly presume the constitutionality of a legislative enactment. Statutes will be struck down only as a last resort when unconstitutionality is shown beyond a reasonable doubt (I.L.F.Y. Co. v City Rent & Rehabilitation Admin., 11 NY2d 480, 490). Our Court of Appeals has cogently stated the test under both our Federal and State Constitutions as follows: "In West Coast Hotel Co. v Parrish (300 US 379, 391) the United States Supreme Court stated that ’regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process’. Thus where a statute is challenged on nonprocedural grounds as violative of due process of law we have consistently asked the question whether there is ’ ’’ ’some fair, just and reasonable connection’ between it and the promotion of the health, comfort, safety and welfare of society” ’. (Nettleton Co. v Diamond, 27 NY2d 182, 193, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; People v Pagnotta, 25 NY2d 333, 337; People v Bunis, 9 NY2d 1, 4; Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541.)” *190(Montgomery v Daniels, 38 NY2d 41, 54.) Further, that court noted that if the law is reasonably related to the promotion of public welfare and is, therefore, a legitimate exercise of the State’s police power, it need not represent the only or even the wisest method the Legislature could have utilized to meet the perceived need (supra, at 56).
Neither the Federal nor State Constitutions (with the exception of the proscription of bills of attainder and ex post facto laws in the former [art I, §§ 9, 10]) contain any prohibition against retroactive laws per se. In determining the validity of such laws, it has been stated generally that only those which impair or destroy vested property rights will be deemed unconstitutional (see, Saltser & Weinsier v McGoldrick, 295 NY 499, 509).
However, even this principle is regarded as too broad a restriction, unless vested rights are deemed to be property interests so substantial as to justify governmental deprivation in light of the objectives to be achieved by the governmental action (see, People v Miller, 304 NY 105).
Thus, it has been stated by Judge (then Justice) Titone that: "The retrospective application of new legislation may offend the due process clause if, upon balancing the considerations on both sides, it appears that retrospective application would be unreasonable (see Chase Securities Corp. v Donaldson, 325 US 304). In determining the reasonableness of retrospective application, the 'rigidities of old theories of "vested rights” ’ have been rejected in favor of the consideration of several factors, i.e., fairness to the parties, reliance on pre-existing law, the extent of retroactivity, and the nature of the public interest to be served by the law (see Matter of Chrysler Props. v Morris, 23 NY2d 515, 518, 521; Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv L Rev 692, 697).” (Valladares v Valladares, 80 AD2d 244, 251, affd 55 NY2d 388.)
Plaintiff contends that section 11 refunding or crediting the excess premiums to the hospitals which paid them in the 1985-1986 period constitutes a deprivation of its vested property interest in that stabilization reserve fund, that it violates the 14th Amendment of the US Constitution and section 6 of article I, of the NY Constitution, since it is arbitrary and bears no rational relationship to any valid State interest. Further, plaintiff contends section 11 also violates section 10 of article I of the US Constitution, in that it impairs existing *191contracts and other relations between it and its excess policyholders.
Property rights or interests, such as that claimed by plaintiff in the stabilization reserve fund, may be based upon statute, contract or from an agreement reasonably implied from the promisor’s words or conduct (Perry v Sindermann, 408 US 593, 602). They are not created by the Constitution and/or by a simple subjective expectancy, but must be found in an independent source such as State law (supra, at 602, n 7; 603; Board of Regents v Roth, 408 US 564, 577).
When the Legislature enacted the stabilization reserve fund, it did so because it recognized that the rates might prove to be inadequate. Thus, it provided for the 20% surcharge to be utilized "for payment to the association of any deficit * * * arising out of the operations of the association” (Insurance Law § 5509 [a] [formerly § 688]).
It is clear the Legislature never intended that these funds were to be the absolute property of the Association since the act provides for the return of the moneys paid to the policyholders, upon termination of the Association, if there are excess funds then remaining (Insurance Law § 5509 [c]).
The fund is held by the Association separately in a trust and its use is strictly limited by statute, subject to the consent of the Department of Insurance. Thus, there is no vested property right to the 1985-1986 surcharges within the meaning of Roth (supra). (See, Methodist Hosp. v State Ins. Fund, 64 NY2d 365; see also, American Ins. Assn. v Bouchard, 102 AD2d 775, mod on other grounds sub nom. American Ins. Assn. v Chu, 64 NY2d 379, appeal dismissed and cert denied 474 US 803.)
Section 11 promotes the interest of this State in reducing the cost of health care. The large payments into the stabilization reserve fund were not anticipated by the Legislature. These arose only because the Association became, by default, the insurer of the great majority of the policies of excess coverage. When the Reform Act of 1986 was enacted, the Legislature decreed that a partial return of the 1985-1986 surcharge would promote fairness and reduce costs to the health care community. Since the statute which was corrected had been in effect for less than a year, the Legislature modified its unanticipated results by the remedial enactment of section 11. Thus, the Legislature acted "in pursuit of permissible State objectives” in enacting section 11, and the *192means it adopted, i.e., refunding payments to the hospitals which are primarily responsible for the excess premiums payments, "were * * * reasonably related to the accomplishment of those objectives” (Montgomery v Daniels, supra, at 54).
The surcharge herein was imposed not by the terms of the contracts of insurance between the plaintiff Association and its insureds, but by the application of Insurance Law article 55. Thus, there can be no viable impairment of contract claim.
Even assuming the legislation does interfere with plaintiffs contracts with third parties, there is no unconstitutional impairment since the legislation is addressed to a legitimate end and the means employed to obtain that end are reasonable and appropriate (Matter of Farrell v Drew, 19 NY2d 486, 493; see also, United States Trust Co. v New Jersey, 431 US 1, 22-23) and any claimed impairment is not such a substantial one as to merit constitutional scrutiny (Allied Structural Steel Co. v Spannaus, 438 US 234).
Plaintiff has not only failed to make a showing of the likelihood of its success on the merits as detailed above, but it has also not shown irreparable harm absent a grant of injunctive relief. Assuming, arguendo, plaintiff prevails in this action, both it and the Department of Health, under that agency’s statutory control of hospitals pursuant to article 28 of the Public Health Law, would have the ability to require the hospitals to return any moneys paid. Finally, a balancing of the equities also does not favor injunctive relief. Delay of the refunds authorized by section 11 will interfere with the hospital fee reimbursement schedule and the Legislature’s plan to lower health care costs. Denial will simply work a temporary monetary harm upon plaintiff, which can be fully recovered by it if it prevails.
Accordingly, I would reverse the order of the Supreme Court, New York County (Martin Evans, J.), entered February 4, 1987, deny plaintiffs motion for a preliminary injunction of the implementation of Laws of 1986 (ch 266, § 11) and grant defendants’ cross motion to dismiss the complaint.
Carro and Smith, JJ., concur with Sullivan, J. P.; Asch and Milonas, JJ., dissent in an opinion by Asch, J.
Order, Supreme Court, New York County, entered on February 4, 1987, affirmed, without costs and without disbursements.