Opinion
November 30, 1967
Order and judgment (one paper) entered after trial before the court without a jury, based upon a finding that timely notice of claim was given respondent-appellant MVAIC, unanimously reversed, on the law and the facts, with $30 costs and disbursements to respondent-appellant, and the motion to stay arbitration permanently is granted. Claimant was injured on December 22, 1963, while standing between two stationary vehicles, the second of which was struck in the rear by a third car. He was taken to a hospital, received emergency treatment and discharged within two hours. An attorney of record retained on January 6, 1964, retained trial counsel on January 9, 1964. Claim was filed with the respondent MVAIC on June 18, 1964, pursuant to the Motor Vehicle Accident Indemnification Corporation Law (Insurance Law, art. 17-A), that the injuries received by claimant on December 22, 1963 resulted from the actions of the third car, an uninsured motor vehicle. Written notice of claim must be filed with the MVAIC "Within 90 days or as soon as practicable" after the occurrence of the accident (New York Automobile Accident Indemnification Endorsement [Insurance Law, § 606, subd. (b)]). "[A]s soon as practicable", requires that written notice be given within a reasonable time. Here the claimant had knowledge at the time of the accident of the fact that a third car was involved and an attorney was consulted and told that the police had attended at the scene. The failure of claimant or his attorney in the circumstances to set in motion inquiries as to the insurance status of the third car until more than 90 days following the occurrence and the ensuing inexcusable delay which ended with the filing of the claim some six months after the accident constituted untimely notice. ( Deso v. London Lancashire Ind. Co., 3 N.Y.2d 127, 129-130; Matter of Kauffman [ MVAIC], 25 A.D.2d 419.) [ 51 Misc.2d 664.]
Concur — Botein, P.J., Eager, Tilzer, Rabin and McNally, JJ.