(dissenting). I am unable to agree with the conclusion of the majority which rests upon a finding that the insured under Cosmopolitan’s policy had ceased to exist. If this had been the case, Cosmopolitan’s policy would not have to have been canceled, for there would have been no insurable interest, and thus any question as to when cancellation had become effective would be moot. However, the record clearly reveals that employer’s reports of injury were filed by the original employer, Suval Industries, Inc., and that this case has been processed against Suval Industries, Inc. That Suvjal was somehow “ absorbed ” by Whittaker did not deprive Suval of its corporate existence.
Nor can I agree that the document purporting to be a release of Cosmopolitan’s liability under its policy can be given effect. Not only is it well established that a policy cannot be effectively canceled without strict compliance with statutory requirements even where the employer agrees (Matter of Otterbein v. Babor & Comeau Co., 272 N. Y. 149; Matter of Horn v. Malchoff, 276 App. Div. 683, mot. for Iv. to opp. den. 301 N. Y. 814), but it further appears here that said release was executed on April 17, 1969 (the accident having occurred on April 11, 1969), purporting to be effective on April 9, 1969. In my view, considerations of fairness and justice as well as the spirit of the statute stand in the way of permitting retroactive cancellations of compensation insurance policies.
In these circumstances, the result must be governed by a strict application of subdivision 5 of section 54. Clearly, Cosmopolitan failed to give the notices which would have been required under that statute to effectuate cancellation as of April 9, 1969. Given that failure, Cosmopolitan is not entitled to relief under the acceleration proviso in subdivision 5 merely because the employer had secured coverage with another carrier. A carrier is only entitled to have the effective date of cancellation accelerated under the proviso if that carrier has in the first instance fully complied with the statute by giving notice which fully conforms in all respects with its requirements. If the carrier has not given requisite notice, it is not to be rewarded merely because the employer has been diligent. It is readily within the carrier’s power to effect cancellation as of a given date by full compliance with the notice provisions of subdivision 5, and such cancellation may be accelerated if the employer secures other coverage in the interim; but it is not the intendment of the statute to accelerate cancellation because of the employer’s diligence and thus reward the carrier where that carrier has not *186satisfied its statutory obligations (cf. Matter of Malkotsis v. Vogiatzis, 35 N Y 2d 794, revg. 43 A D 2d 625, where a carrier who 'had not complied with the notice requirements of subdivision 5 was not relieved of liability even though the employer had secured other coverage prior to the date on which the first carrier sought to make cancellation effective and prior to the date of the accident).
I would reverse the decision and remit to the board for further proceedings.