NAGER v. TEACHERS RETIREMENT SYSTEM OF CITY OF NEW YORK (1999)

Order, Supreme Court, New York County (Richard Braun, J.), entered June 12, 1998, which denied defendants' motion for summary judgment, unanimously affirmed, without costs.

 In this action seeking legal and equitable relief for defendants' allegedly improper investment policies with respect to the Variable B Annuity Program (Ch 735, L 1982), 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, 19 S.Ct. 434, 43 L.Ed. 749;  Westchester County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mengel, 266 App.Div. 151, 155, 41 N.Y.S.2d 605, affd. 292 N.Y. 121, 54 N.E.2d 329), 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 Estate of Janes, 90 N.Y.2d 41, 50-52, 659 N.Y.S.2d 165, 681 N.E.2d 332).

MEMORANDUM DECISION.