Sullivan ex rel. Sullivan v. Motor Vehicle Accident Indemnification

18 Misc. 2d 961, 190 N.Y.S.2d 33, 1959 N.Y. Misc. LEXIS 3451

• Court: New York Supreme Court
• Decided: June 18, 1959
• Status: Published

Opinion

Henry Epstein, J.

This is an application to file a late notice of claim pursuant to section 608 of the Insurance Law

The injured party is an infant of 17 years. The injury complained of was occasioned by petitioner’s ride in a stolen car. As a result of the injury, petitioner was hospitalized and arrested, but later the charges in the criminal court, insofar as they affected him, were dismissed.

The section providing for the notice of claim provides in part that a qualified person shall file with the corporation within 90 days of the accrual of such cause, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating (1) he has a cause of action; (2) that the cause of action lies against the owner or operator of a designated uninsured motor vehicle, and (3) he intends to make a claim for such damages (Insurance Law, § 608, subd. [a]). It is further provided in the same section that where the qualified person is an infant and by reason of such disability is prevented from filing the affidavit provided above within the period specified, the corporation may accept the affidavit if accompanied by satisfactory proof of the facts causing the delay and that it was not reasonably possible to file within the applicable time and that it was filed as soon as reasonably possible or a court of competent jurisdiction, in its discretion, may upon like proof grant leave to file. The application to the court must be made ■within 120 days from the beginning of the applicable period for filing the affidavit.

Petitioner’s affidavit does not advance any meritorious reason for failure to file within the statutory period. The fact of petitioner’s arrest did not disable petitioner from filing his claim.

The petition is dismissed.