— Order, Supreme Court, New York County (Fingerhood, J.), entered April 8,1982 which granted reargument and adhered to a prior determination dismissing petitioner’s CPLR article 78 application on the ground that it was not timely commenced, modified, on the law, without costs, to the extent of denying respondents’ motion to dismiss the petition, and otherwise affirmed. Petitioner’s appeal from the judgment entered February 4, 1982 is dismissed, without costs, as superseded by the later order. Petitioner is a nonprofit corporation organized under the laws of this State, consisting of members who are excess line insurance brokers licensed to act as such pursuant to section 122 of the Insurance Law, which permits the licensees to procure insurance from insurers that are not authorized to transact business in this State. Subdivision 1 of the section establishes a standard of “due care” in the selection of unauthorized insurers. Subdivision 6 requires that licensees use “diligent effort” to procure insurance from an authorized insurer in the amount required to protect the insured before turning to an unauthorized insurer for such coverage, procure coverage from an unauthorized insurer only in an amount which is excess over the amount procurable from authorized insurers, and file statements attesting, under the penalties of perjury, that the aforesaid standards have been met. On August 23,1962 the Superintendent of Insurance promulgated regulation 41, which established procedures deemed essential to meet the general standards of due care and diligent effort set forth in the Insurance Law. The regulation was sustained in Matter of B. & R. Excess Corp. v Thacher (37 Mise 2d 307, affd 18 AD2d 1137). On November 25, 1980 the superintendent promulgated revised regulation 41 (11 NYCRR Part 27) which provides, in section 27.3 (a), that an excess line broker may not procure insurance from an unauthorized insurer unless the risk was first rejected by five authorized insurers, and that proof of such rejection must be made by the excess line broker. Section 27.3 (b) provides that there shall be declination forms which “shall be in a form enumerated EL-2, as approved by the superintendent. This EL-2 form shall be a two-part form, the original of which is to be forwarded to the person on behalf of the company making the declination, and the second part of which shall be retained by the broker or excess line broker.” A proposed form EL-2 was included in the November 25, 1980 press release that announced the amended regulation. The proposed form carried an instruction that it was to be completed by the excess line broker and signed and dated by the company representative. However, the wording of the form itself indicated that it was to be filled out by the agent or underwriter having underwriting authority for the authorized insurance company that declined the risk. Significantly, the proposed form required the person filling it out to set forth the reason for declining the risk, a requirement not contained in the regulation itself. On December 12, 1980 petitioner’s president wrote to the deputy superintendent inquiring as to the effective date of regulation 41 as amended, and also asking, with some urgency, when the EL-2 form would be released, citing hundreds of inquiries by petitioner’s members. On January 22, 1981 the Journal of Commerce carried an article headlined “N.Y. Delays *840Redesign of Reg. 41 Forms.” It was reported in this article that the chief of the Insurance Department’s Consumer Services Bureau had stated that he was unable to predict when the new forms would be ready, and that the department had been consulting with alien insurers as to the forms with the intention of being “as responsive as possible” to their needs and concerns. On February 23, 1981 the superintendent released a circular letter containing the final EL-2 form to be completed by the excess line brokers. While the information required to be filled out was substantially identical to that contained in the proposed form, the language was modified to establish, for the first time, that the excess line broker had to set forth the reason for declining the risk as related to him by each of the authorized insurers that had declined the risk. On May 15, 1981 petitioner instituted an article 78 proceeding seeking to annul regulation 41 and the EL-2 procedure on various grounds. The superintendent moved to dismiss the petition, alleging that it was untimely commenced under CPLR 217 which provides, insofar as relevant here, that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”. The critical issue is whether the statutory period commenced running on November 25, 1980, the date regulation 41 was promulgated, or on February 23, 1981, the date the EL-2 form designed to carry out the regulation was finally adopted. Special Term granted the motion to dismiss and adhered to that decision on reargument in a thoughtful opinion which concluded that the ultimately adopted form “was merely incidental” here, as was held to be the case in Matter of Allstate Ins. Co. v Stewart (36 AD2d 811, affd 29 NY2d 925). Recognizing that the question presented is a close one, we disagree, find that the applicable statutory period commenced running on the date the form was adopted, and accordingly modify to the extent of denying the motion to dismiss the petition. As ultimately adopted, the EL-2 form required the excess line brokers to report the reasons given by the underwriters for declining the risk and further required the declining underwriter to confirm the accuracy of that information. Regulation 41 itself included no requirement that the reasons for the declination be set forth. On the face of it, this requirement in the adopted forms represented a material addition to the regulation. In short, it was not until the form was adopted that “petitioners had a final determination from which to ascertain the possible consequences, as to them” of the regulation. (See Matter of Martin v Ronan, 44 NY2d 374, 381.) It does not seem to us a convincing answer to this analysis that the proposed EL-2 form issued together with the promulgated regulation on November 25, 1980 also included a requirement, albeit in a somewhat different manner, for the reporting of the reason given for declination. The article in the Journal of Commerce referred to above made clear that the Superintendent of Insurance was deferring adoption of a final EL-2 form pending consultation with alien insurers with a view to being responsive to their needs and concerns. From this the petitioner could reasonably have concluded that the one significant feature of the proposed form not embodied in the regulation might ultimately be deleted, that requirement clearly being one of concern to the alien insurers and the most obvious manner in which the form might be revised to be responsive to their concerns. In Matter of Castaways Motel v Schuyler (24 NY2d 120, 126-127), the Court of Appeals stated, with regard to a Statute of Limitations defense asserted by a public body or officer: “The burden was put on the public body to make it clear what was or what was not its determination. In dealing with this dilatory defense the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court.” The principle set forth in Castaways seems to us controlling here. The *841revision and approval of the final EL-2 form was not “merely incidental” to the promulgated regulation 41 in the particular circumstances presented herein. Accordingly, the motion to dismiss should have been denied. Respondents are directed to serve an answer within 20 days after the entry of this court’s order. Concur — Sandler, J. P., Sullivan and Milonas, JJ. Asch and Alexander, JJ., each dissent in a separate memorandum.