Opinion
April 8, 1960
Alfred J. Hemlock for petitioner.
Evans, Orr, Gourlay Pacelli for respondent.
Petitioner moves for permission to file a late notice of claim with the Motor Vehicle Accident Indemnification Corporation pursuant to section 608 Ins. of the Insurance Law.
The accident in question occurred on June 28, 1959 and petitioner had 90 days thereafter within which to file her notice of claim. This was not done until October 14, 1959, some 17 days after the expiration of the statutory period.
While article 17-A of the Insurance Law creates statutory rights unknown at common law and therefore must be strictly construed, the failure to file within 90 days is not an absolute bar to a claim for payment. Section 608 provides: "(2) a court of competent jurisdiction, in its discretion, may upon like proof grant leave to file the affidavit within a reasonable time after the expiration of the above mentioned applicable period."
The court finds that the reasons set forth in the moving papers sufficiently explain the delay of 17 days past the 90-day period. There is no showing of prejudice to the respondent occasioned by the late service, especially in view of the fact that the police report was filed within 24 hours after the accident, as required. The applicant's infancy is also a factor to be considered, since the statute grants the court discretion to accept late filing where an infant is involved (Insurance Law, § 608).
While this statute appears on the surface to be very similar to section 50-e Gen. Mun. of the General Municipal Law which has been strictly construed by our courts, there are significant differences. The possibility of stale claims which exists under section 50-e is vitiated under this statute by the requirement of an early filing of an accident report with the police within 24 hours. Moreover, this statute is not designed to protect a municipality and therefore need not be construed as strictly as section 50-e.
The motion is granted and the petitioner is directed to serve her notice of claim within 14 days from the date of publication of this order, which will be deemed timely service.