(dissenting). I respectfully dissent.
That the cancellation of a workmen’s compensation insurance policy is ineffective absent the strictest compliance by the canceling carrier with the notice requirements of subdivision 5 of section 54 of the Workmen’s Compensation Law has only recently been reaffirmed in Matter of Malkotsis v. Vogiatzis (35 N Y 2d 794) and Matter of Van Deurs v. Regency Cabinet Corp. (42 A D 2d 452). In my opinion, the majority decision in the present matter not only undermines this long-established principle, but also either avoids or misconstrues the settled law on the precise question presented here as it is stated by Presiding Justice Foster in Matter of Horn v. Malchoff (276 App. Div. 683, mot. for lv. to opp. den. 301 N.Y. 814).
In Matter of Horn (supra), there was a new carrier admittedly on the risk at the time of the compensable injury, but the statutorily required written notice of cancellation was not submitted by the canceling carrier until four days after the injury. Such being the case, the court found there to be dual coverage because: “ the saving clause as to the effect of other insurance applies only to the period after the notice has been given and before the cancellation date fixed therein has been reached.” (Matter of Horn, supra, p. 685.) To the same effect is Matter of Mioducki v. Herbert Burman, Inc. (18 A D 2d 852, 853) where, in a similar situation, the cancellation was found to be effective 1 ‘ since the accident occurred within the period after notice had been given and before its effective date was reached ”.
Turning to the facts in the instant case, we find a delay in submitting the required notice of more than three and one-half months, not just a few days, and, therefore, the argument is even stronger here for a finding of dual coverage. Moreover, the fact that Suval was somehow absorbed by Whittaker Corporation can have no effect on this result. Suval was the named insured throughout these proceedings and filed the employer’s reports of injury, and, absent compliance with the statute, neither the request of the insured nor an agreement between the *187.insurer and the insured will suffice to bring about a cancellation of coverage (Matter of Horn, supra) which can only be properly effectuated “-just as'the statute says it must be ” (Matter of Conklin v. Byram House Rest., 32 A D 2d 582, 583, affd. 30 N Y 2d 657)." To hold otherwise would subvert the primary purpose Of the law, which is to protect the employee and assure, him appropriate beifefits, iby denying,the commissioner an opportunity to see-.that adequate-new coverage is provided before the cariceling carrier goes off the risk (Matter of Lorer v. Gotham (Concrete Cement Finish Corp:, 8 A D 2d 221).
The decision should be reversed, and the matter remitted to the-board for further proceedings.
Kane .and Labkin, j J», concur with Heblihy, R. J.; Greenblott and MaiÑj JJ., dissent and vote to rémif for further proceedings in'separate opinions.
Decision- affirmed, without costs.