Opinion
February 26, 1962
In a special proceeding pursuant to statute (Insurance Law, § 608, subd. [c]), to permit the late filing of an affidavit of intention to make claim against the Motor Vehicle Accident Indemnification Corporation, the petitioner appeals from so much of an order of the Supreme Court, Suffolk County, dated May 13, 1960, as upon reargument, denied his application. Order, insofar as appealed from, affirmed, without costs. In our opinion, the application, made on September 11, 1959, was within 120 days of the accrual of the cause of action on May 14, 1959 (General Construction Law, § 20); hence, the application was timely. Nevertheless, the application was properly denied. The record fails to disclose that the petitioner or applicant "is an infant or is mentally or physically incapacitated or is deceased, and by reason of such disability or death * * * [was] prevented from filing the affidavit [as provided in the statute]," (Insurance Law, § 608, subd. [c]). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.