IN RE: FIRST CENTRAL INSURANCE COMPANY (2004)

In a liquidation proceeding pursuant to Insurance Law article 74, Aurello Malave appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 11, 2002, which granted the motion of the Superintendent of Insurance, as Liquidator of First Central Insurance Company, to confirm the referee's report disallowing his claim and denied his cross motion to disaffirm the referee's report.

ORDERED that the order is affirmed, with costs.

Aurello Malave, the claimant, challenges a notice of disclaimer of coverage sent by First Central Insurance Company (hereinafter FCIC) to, among others, its insured with a copy to him, who was the injured party, in accordance with Insurance Law § 3420(d).  FCIC first received notice of the accident approximately 4 1/2 years after the alleged injury occurred, and approximately two years after the claimant commenced a personal injury action against the insured, in which the insured was declared in default.   The notice of accident, sent by the insured's broker, was late as a matter of law (see Deso v. London & Lancashire Indem. Co. of America, 3 N.Y.2d 127, 130, 164 N.Y.S.2d 689, 143 N.E.2d 889;  Matter of DeLeon v. Motor Vehicle Acc. Indem. Corp., 243 A.D.2d 475, 476, 662 N.Y.S.2d 820;  Mount Vernon Fire Ins. Co. v. Timm, 237 A.D.2d 586, 587, 655 N.Y.S.2d 611;  Town Bd. of Town of Poughkeepsie v. Continental Ins. Co., 213 A.D.2d 475, 477, 623 N.Y.S.2d 894;  Platsky v. Government Employees Ins. Co., 181 A.D.2d 764, 765, 581 N.Y.S.2d 235).

Contrary to the claimant's assertions, the notice the claimant provided to the insured's insurance broker was not notice to the insurer (see Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 442 n. 3, 340 N.Y.S.2d 902, 293 N.E.2d 76;  Serravillo v. Sterling Ins. Co., 261 A.D.2d 384, 385, 689 N.Y.S.2d 521;  Incorporated Vil. of Pleasantville v. Calvert Ins. Co., 204 A.D.2d 689, 612 N.Y.S.2d 441).   The claimant did not exercise his right pursuant to Insurance Law § 3420(a)(3) to provide independent notification to FCIC. Consequently, the disclaimer letter, which stated untimely notice by the insured as the ground for disclaimer, without any reference to untimely notice by the claimant, was proper (see Travelers Indem. Co. v. Worthy, 281 A.D.2d 411, 412, 721 N.Y.S.2d 400;  Mount Vernon Fire Ins. Co. v. Harris, 193 F.Supp.2d 674, 680).

The claimant's remaining contentions are without merit.