(dissenting). The petitioner is an organization of excess life insur-
ance brokers engaged in the business of procuring policies of insurance from insurers who are not licensed to transact business here. The volume of insurance procured by these brokers runs into the hundreds of millions of dollars. They are sophisticated both in their own fields and in their relationship with the Insurance Department. Essentially, their position in the matter before us is that they were misled by alleged statements of the Superintendent of Insurance or his representatives into thinking that the promulgation of a regulation which mandated the use of a certain form, was not final. They claim, further, that as a result of this mistaken belief they were lulled into not taking any action within four months of November 25, 1980, when revised regulation 41 became effective. In actuality, the regulation was never changed nor, in any significant aspect, was the form. The industry was clearly put on notice, that as of the effective date, brokers placing excess insurance would have to submit multiple forms establishing that five carriers licensed in New York were unwilling to assume the risk and hence resort to unlicensed carriers was necessary. On the effective date of regulation 41, the Department of Insurance published a proposed form, and on February 23, 1981, the official form EL-2 was published. The two forms are virtually identical. They certainly both imposed a requirement that where a licensed carrier rejects the risk, it would have to sign the form. There was never any suggestion by the superintendent that this requirement would be eliminated. The superintendent’s press release issued on November 25,1980, the date of the promulgation of the revised regulation, stated that: “The broker who places the excess * * * insurance must identify in writing, the New York admitted carriers who declined the risk. In addition, the representatives of the admitted carriers who, in fact, declined the * * * risk must corroborate the statement of the broker”. In addition, when the revised regulation was released on November 25, the regulation contained, as noted supra, a proposed copy of the EL-2 form. Further, section 27.3 of the revised regulation 41 (11 NYCRR 27.3) required that excess line brokers and the insurers declining to offer coverage must verify and confirm such declaration in precisely the manner provided in EL-2. When the Superintendent of Insurance adopted an assigned risk automobile insurance plan in a letter dated November 26,1969, the plan was subject to the approval of certain forms which were to be submitted before the effective date of the plan on December 22. In a proceeding brought to challenge that plan, this court found that the four-month Statute of Limitations commenced on the earlier of two dates and that the forms were merely incidental to the assigned risk plan (Matter of Allstate Ins. Co. v Stewart, 36 AD2d 811). Similarly, in the instant matter, the issuance of the form was merely incidental to the revised regulation 41. We note that even if the instant action is construed as one for declaratory judgment, the four-month limitation would apply. (Solnick v Whalen, 49 NY2d 224, 229-230.) Accordingly, the order of Special Term, New York County (Fingerhood, J.), entered on April 8,1982, which granted reargument and, upon reargument, adhered to the prior determination dismissing petitioner’s application on the ground that it was not timely commenced, should be affirmed. The judgment entered on February 4, 1982 should also be affirmed.