Opinion
September 23, 1964
Meyers Fisher for petitioner.
Bouck Holloway for respondent.
This is an application made pursuant to section 608 Ins. of the Insurance Law for an order allowing the filing of a claim against the MVAIC.
It appears that the applicant desires to make such claim by reason of the fact that he has ascertained that an automobile which was in collision with a motor vehicle owned and operated by him was at the time of the accident a stolen vehicle and operated by an unknown person without the consent of the owner. It further appears that the accident occurred on March 1, 1963, and that an action was commenced against the owner of the other vehicle, issue joined, and examinations before trial held. The applicant did not become aware of the fact that the vehicle was stolen and operated without the owner's permission until the time of the examinations before trial in May of 1964, and that thereafter, and within one week from such time, the applicant submitted a notice of intention to make claim to the MVAIC. Such claim was rejected upon the ground that it was not timely.
While, under the factual situation, here presented, there is and has been no disclaimer of liability or denial of coverage by the insurance carrier within the meaning of subdivision (c) of section 608, which allows the period of 10 days from the receipt of notice of the same before the filing of a claim, it is felt that the court in this case should be guided by those authorities which hold that the court is possessed with some discretion in these matters for the purpose of furthering the legislative intention. "[T]his court considers it unconscionable to penalize a claimant for not having done the impossible, to wit, file a claim before he knew, or could possibly have found out it was due". "To adopt such a rule would mean that every motor vehicle accident claimant, to protect himself, would have to file a claim with MVAIC as a matter of course. It would be inundated under such a barrage of paper as to paralyze its legitimate operations and the Legislature could never have intended such a result." ( Matter of MVAIC [ Walter], 28 Misc.2d 899, 900.)
Accordingly, the motion will be granted.