Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of Special Term which granted permission to the plaintiff-respondent to file a late affidavit, pursuant to section 608 of the Motor Vehicle Accident Indemnification Corporation Law (Insurance Law, art. 17-A). On August 23, 1959, the infant plaintiff, a pedestrian, was struck by an automobile owned and operated by the defendant Jean Paul Bruneau of Quebec, Canada. A report filed, resulting from an investigation at the time of the accident by the Sheriff's department, stated that he was insured by GMAC of Montreal. The action was commenced by the service of a summons and complaint upon the Secretary of State, pursuant to section 52 Veh. Traf. of the Vehicle and Traffic Law, and thereafter the time to answer having elapsed, the attorneys for the plaintiff wrote the defendant requesting information as to whether he had liability insurance. There was no reply to this communication and on December 18, 1959, the attorneys for the plaintiff obtained an order to show cause directed to the appellant herein why an order should not be made permitting the filing of late affidavit, pursuant to subdivision (c) of section 608 Ins. of the Insurance Law. The appellant appeared by counsel on the return date and contended that no sufficient reason was shown for such late filing and that in any event subdivision (a) and not subdivision (c) of the section was applicable. Section 608 Ins. of the Insurance Law captioned "Notice of intention to file claim", as pertiment hereto, reads as follows: "The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to: (a) Any qualified person having a cause * * * of action because of * * * bodily injury, arising out of a motor vehicle accident occurring within this state, who shall file with the corporation within ninety days of the accrual of such cause or causes of action, as a condition precedent to the right thereafter to apply for payment from the corporation, an affidavit stating that (1) he has a cause or causes of action arising out of such accident for damages and setting forth the facts in support thereof, (2) such cause or causes of action lie against the owner or operator of a designated uninsured motor vehicle, and (3) he intends to make a claim thereon for such damages". Subdivision (c) provides for the same relief except that (2) thereunder provides for a situation where the insurer of the person liable or alleged to be liable has disclaimed liability or denied coverage because of some act or omission of the person or persons liable. There is a further provision contained in (c) that the affidavit shall be filed within 10 days of receipt of notice of such disclaimer or denial of coverage. The section then further contains an omnibus provision, not part of subdivision (c) but applicable to subdivisions (a), (b) and (c) that when the qualified person is an infant, late filing may be accepted by the corporation upon a showing of merit or a court of competent jurisdiction in its discretion may upon like proof grant leave to file within a reasonable time after the expiration of the 90 days. It further provides that any application to the court must be made within 120 days from the beginning of the applicable period and must be served upon the corporation within eight days before the time for the hearing. The order of Special Term, having granted permission to file, stated that there were facts to support a cause of action against an uninsured motor vehicle operator or the person liable because of disclaimer or denied coverage, pursuant to subdivision (c). On the argument before us, the counsel for the appellant stated that he assumed the plaintiff was proceeding pursuant to subdivision (a) but counsel for the plaintiff stated he was proceeding under subdivision (c). In either event, the rights of the infant are protected by the omnibus provision applicable to all the subdivisions. We find from the facts that there is no basis for the application of subdivision (c) as there was no showing before Special Term to justify a finding that the defendant had liability insurance and because of some act of the person alleged to be liable, the liability carrier has disclaimed liability or denied coverage. In the affidavit by the guardian ad litem of the infant plaintiff on the order to show cause it was stated: "Your deponent, therefore, now believes that there is no liability insurance carrier for the Defendant and therefore intends to make a claim against the Motor Vehicle Accident Indemnification Corporation". It further alleged that the plaintiff was an infant and that a guardian ad litem was appointed in his behalf on the 22d day of September, 1959. The omnibus provision provides for 120 days and it is admitted that the order to show cause was obtained within the latter period. Such action upon the part of the plaintiff was an application to the court within the meaning of the statute. As to the 90-day period, we feel that plaintiff and his attorneys made a diligent effort to comply with a statute which is somewhat indefinite and only became operative as of January 1, 1959. The record shows that the plaintiff was trying to ascertain within the prescribed period of time whether or not there was liability insurance. The disability of infancy was specifically recognized in the law as a basis for the grant of relief. ( Matter of Frey v. Motor Vehicle Acc. Indemnification Corp., 9 N.Y.2d 849.) In our opinion, the plaintiff has met the requirements of subdivision (a) of the section and accordingly the order should be affirmed. Order unanimously affirmed, with $10 costs.