Opinion
September 14, 1959
Moser Arye for petitioners.
Evans, Orr, Gourlay Pacelli for respondent.
This is an application, pursuant to section 608 Ins. of the Insurance Law, for an order permitting the late filing of a notice of intention to file claim against the Motor Vehicle Accident Indemnification Corporation, created by section 602 of the same statute. Section 608, where the injured person is an infant, permits the court to allow the late filing of a notice of intention only if " by reason of such disability" the timely filing of the notice is prevented. This language is substantially identical with that used in subdivision 5 of section 50-e Gen. Mun. of the General Municipal Law. In Matter of Barrett v. City of New York ( 1 A.D.2d 993) the Appellate Division in this Department held that the failure to file the notice required by section 50-e ( supra) was not excused, despite claimant's infancy, where it was due not to the infancy but to the alleged inability of the claimant's attorney to ascertain the ownership of the property. It follows that the excuse given here, viz., that claimant's attorney was not aware of the statutory requirement, may not prevail. The failure to file was not due to infancy.
Motion denied.