NYSID Form 41C: Producing Broker Affidavit and 45-Day Notice

NYSID Form 41C, the Affidavit by Producing Broker, is where you certify under penalty of perjury that you tried to place the risk with authorized New York insurers before it went to the excess line market. To fill it out correctly, you identify yourself and the insured, describe the coverage, list the three authorized insurers that declined the risk (with dates, NAIC codes, and your reason to believe each might have written it), attach the written notice to the insured if you were the one who delivered it, and sign the affirmation. The completed form goes to the excess line broker, who bundles it into the ELANY filing due within 45 days of the policy’s effective date.¹

What You Are Certifying

New York Insurance Law Section 2118 and Regulation 41 (11 NYCRR Part 27) allow an excess line placement only after at least three authorized insurers, each licensed in New York to write the type of coverage requested and each one you had reason to believe might consider the risk, have declined it.² Form 41C is the document that puts those declinations on the record.

Before you list carriers, check whether the coverage sits on the Superintendent’s export list under Section 27.3(g). Coverages on that list are treated as generally unavailable in the admitted market, so no declinations are required. The current list includes environmental pollution liability, excess flood above federal program limits, builders risk on projects over $10 million total insured value, and commercial umbrella liability where underlying limits reach at least $10 million per occurrence.³ For export-list risks, you still file the affidavit, but you check the box indicating no declinations were required instead of listing three carriers.

One boundary worth flagging: Form 41C is a New York form for a New York home-state placement. If the insured’s home state under federal surplus lines rules is elsewhere, that state’s framework governs and this form is not the right one.

Where to Get the Form

You can generate Form 41C — formally “Part C: Affidavit by Producing Broker” — through ELANY’s Electronic Filing System (EEFS) or download the PDF from ELANY’s forms page.⁴ EEFS auto-populates your broker information once you enter your license number, which reduces data-entry errors. The PDF works fine when you prefer to complete it manually or need a signed copy for a paper file.

Section-by-Section

Producing Broker Information

Enter your full legal name, license number, and business address at the top. Sublicensees complete this section with their own information. The affirmation language at the bottom of the form specifically covers both licensees and sublicensees, so there is no separate version for either.⁵

Insured and Coverage

Identify the insured by full legal name and address. Then describe the type and extent of coverage being placed with enough specificity that a reviewer can match your description to the policy. “Commercial general liability” reads better than “liability insurance.” The form also captures policy term and gross premium.

Declinations

This is where filings get rejected. For each authorized insurer that declined the risk, record the insurer’s name, the date of declination, and the insurer’s NAIC code.⁶ You also note the basis for your belief that each insurer might have considered writing the coverage. That “reason to believe” language appears in both the statute and Regulation 41 and is not optional.²

What you do not have to record: the name of the individual at the carrier who declined, that person’s title, or the reason the carrier gave. Section 2118 expressly excuses brokers from putting that on the affidavit.⁶ Keep that information in your internal file if you like, but it does not go on Form 41C.

Signing the Affirmation

Form 41C is an affirmation under penalties of perjury, not a notarized oath. The signature block reads, “I hereby affirm under penalties of perjury that all of the information contained herein is true to the best of my knowledge and belief.”⁵ Sign, date, and you are done with that section. No notary. If you filed through EEFS, the system handles the affirmation digitally.

The Written Notice to the Insured

Before the placement goes through, either you or the excess line broker must give the insured a written notice covering three points: the unauthorized insurer is not licensed in New York and is not supervised by the state; if it becomes insolvent, losses will not be paid by any New York security fund; and the policy may not be subject to all of the Superintendent’s regulations on policy forms.⁷ A copy of that notice must be attached to whichever affidavit affirms it was delivered. If you delivered it, attach it to your Part C and check the box confirming delivery before placement.

For an exempt commercial purchaser, the notice needs a fourth item: the coverage may or may not be available from the authorized market, which could provide greater protection with more regulatory oversight.⁷ Missing that extra line on commercial placements is a frequent slip.

Handing It Off and the 45-Day Deadline

Your completed Part C goes to the excess line broker, who bundles it with their Part A affidavit, the batch filing report, the declarations page or binder, a Notice of Excess Line Placement, and a premium tax allocation form if the risk is multi-state.¹ The whole package must reach ELANY within 45 days of the policy’s effective date.⁷ Regulation 41 wants the affidavit obtained before placement whenever practicable; the 45-day outer limit exists for situations where that is not realistic.

Late or erroneous filings carry a $25 fee.⁸ More disruptive than the fee: ELANY reviews the filing, and if anything is missing or inconsistent, the package comes back for correction, and the coverage documents cannot be stamped until it clears. Delivering an unstamped excess line declarations page or cover note in New York is illegal.¹

Keeping Your Copy

Both the producing broker and the excess line broker must keep files supporting the declinations.² The general retention period under 11 NYCRR 243.2 is six calendar years from creation, or until after the filing of a report on examination in which the record was reviewed, whichever is longer.⁹ So your signed Form 41C, the declination records behind it, the written notice, and any correspondence from your diligent search should stay accessible for at least six years. The Superintendent can call for them during a routine examination or a targeted investigation, and failing to produce them can trigger disciplinary proceedings against your license.¹⁰

What Goes Wrong When the Form Is Wrong

Under Section 2110, the Superintendent can refuse to renew, suspend, or revoke the license of a producer who violates insurance laws or regulations, uses fraudulent or dishonest practices, or demonstrates incompetence in the conduct of business.¹⁰ A false affirmation on Form 41C, such as declinations you never obtained, exposes you to perjury liability on top of the licensing consequences. Honest mistakes are less severe individually, but a pattern of non-compliant filings can be treated as evidence of incompetence.

The day-to-day risk is usually smaller and more mechanical. ELANY rejects the filing, the stamp does not issue, and the insured has no deliverable proof of coverage while you fix the paperwork. Careful entries in the declination section, the right written notice attached where you delivered it, and a signed affirmation are what keep the filing moving.

1
Excess Line Association of New York. A Beginner’s Guide to Excess Line Compliance
2
Legal Information Institute. 11 NYCRR 27.3 – Submission of Risk to Authorized Insurers
3
Department of Financial Services. Insurance Regulation 41 Current Export List
4
Excess Line Association of New York. ELANY Electronic Filing Site – Part C Affidavit
5
Excess Line Association of New York. NYSID Form 41C Affidavit by Producing Broker
6
New York State Senate. Insurance Code 2118 – Excess Line Brokers; Duties
7
Legal Information Institute. 11 NYCRR 27.5 – Supporting Affidavits
8
Surplus Manual. Surplus Lines Tax Laws by State
9
New York Codes, Rules and Regulations. 11 CRR-NY 243.2 – Records Required for Examination Purposes and Retention Period
10
New York State Senate. Insurance Code 2110 – Revocation or Suspension of Licenses