N.Y. Comp. Codes R. & Regs. tit. 11, § 40.1 – Applicability.

(a) Except as otherwise provided, this Part shall apply to all group annuity contracts and funding agreements delivered or issued for delivery in this State on or after the effective date of this Part. However, section 40.3 of this Part shall not be effective until December 1, 1990. This Part shall not apply to:
1. (1) any group annuity contract which is subject to or conforms with the provisions of section 4223 of the Insurance Law;
2. (2) the provisions of a group annuity contract or funding agreement relating to a separate account which limits the liability under any guarantees to the extent of the interest of the contractholder in assets allocated to such separate account;
3. (3) any group annuity contract under which the funds received by the insurance company are immediately applied to the purchase of immediate or deferred annuities except that section 40.3 of this Part, pertaining to disclosure, shall apply to any such group annuity contract;
4. (4) any group annuity contract or funding agreement which has been agreed to by the purchaser and a full or initial purchase payment has been made to the insurance company before the effective date of this Part, notwithstanding that the contract was not delivered before the effective date;
5. (5) any funding agreement which is not issued in connection with any employee benefit plan as defined in the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq. or a governmental plan; or
6. (6) the provisions of a group annuity contract or funding agreement subject to any regulation promulgated pursuant to section 4240 (a)(5)(iii) of the Insurance Law.
(b) An insurance company may request that the department waive or modify the application of this Part. The insurance company shall provide the department with an explanation of the basis for any such request. The department may grant a waiver or modification if it deems the resulting contract to be more favorable to certificate holders or not less favorable to certificate holders and more favorable to contractholders and determines that said contract is not prejudicial to the interests of other policyholders of the insurance company.
(c) A contract which (1) was delivered or issued for delivery in this State prior to the effective date of this Part, (2) would be subject to this Part but for the fact that it was issued prior to the effective date of this Part, and (3) complies with all or a portion of this Part, may not be amended subsequent to the effective date of this Part so as to cause any portion of the contract which was in compliance with this Part to no longer comply with this Part.
(d) Unless otherwise exempt as stated above, section 40.4 of this Part shall apply to any group contract or funding agreement substantially and materially altered or amended after the effective date of this Part with respect to deposits made on or after the date the contract or agreement is altered or amended.