§ 5208 — Notice of claim

New York § 5208

• Jurisdiction: New York
• Law ISC: Insurance
• Art. 52: Motor Vehicle Accident Indemnification Corporation

Text

§ 5208. Notice of claim. (a) The protection provided by the\ncorporation on account of motor vehicle accidents caused by financially\nirresponsible motorists shall be available to:\n (1) Any qualified person having a cause of action because of death or\nbodily injury, arising out of a motor vehicle accident occurring within\nthis state, who files with the corporation within one hundred eighty\ndays of the accrual of the cause of action, as a condition precedent to\nthe right to apply for payment from the corporation, an affidavit\nstating that:\n (A) the person has a cause of action for damages arising out of the\naccident and setting forth the facts in support,\n (B) the cause of action is against the owner or operator of a\ndesignated uninsured motor vehicle, and\n (C) the person is making a claim for such damages.\n (2) (A) Any qualified person having a cause of action because of death\nor bodily injury, arising out of a motor vehicle accident occurring\nwithin this state and reported within twenty-four hours after the\noccurrence to a police, peace or judicial officer in the vicinity or to\nthe commissioner, and who files with the corporation within ninety days\nof the accrual of the cause of action, as a condition precedent to the\nright to apply for payment from the corporation, an affidavit stating\nthat:\n (i) the person has the cause of action for damages arising out of the\naccident and setting forth the supporting facts,\n (ii) the cause of action is against a person whose identity is\nunascertainable, and\n (iii) the person is making a claim for those damages.\n (B) The fact that the accident was not reported within twenty-four\nhours after the occurrence as required by subparagraph (A) hereof shall\nnot prejudice the rights of the person if it is shown that it was not\nreasonably possible to make such a report or that it was made as soon as\nwas reasonably possible.\n (3) (A) Any qualified person having a cause of action because of death\nor bodily injury, arising out of a motor vehicle accident occurring\nwithin this state, who files with the corporation an affidavit as a\ncondition precedent to the right to apply for payment from the\ncorporation, stating that:\n (i) the person has a cause of action for damages arising out of the\naccident for damages and setting forth the supporting facts,\n (ii) the insurers of the person alleged to be liable for the damages\nhave disclaimed liability or denied coverage because of some act or\nomission of the person alleged to be liable including the denial of\ncoverage based upon the lack of a policy of insurance in effect at the\ntime the cause of action arose; provided, however, that in the case of a\ndenial of coverage based upon the lack of a policy of insurance in\neffect at the time the cause of action arose, timely reasonable efforts\nhad been made to ascertain insurance coverage, and\n (iii) the person is making a claim for those damages.\n (B) The affidavit shall be filed within one hundred eighty days of the\naffiant's receipt of notice of the disclaimer or denial of coverage.\n (b) If a qualified person fails to file the affidavit as provided in\nparagraphs one and two of subsection (a) hereof within the specified\nperiod, or by reason of being an infant or mentally or physically\nincapacitated or deceased, is prevented from filing the affidavit as\nprovided in paragraph three of such subsection within the specified\nperiod, or fails to file within one hundred eighty days, due to receipt\nof erroneous information from the department of motor vehicles or\nerroneous information from a police report with respect to\nidentification of a vehicle, then upon a filing within thirty-one days\nof receipt of written notice of correction of the error by the\ndepartment of motor vehicles or discovery of the mistake contained in\nthe police report:\n (1) The corporation may accept the filing of the affidavit if\naccompanied by proof satisfactory to it, of the facts which caused the\ndelay and that it was not reasonably possible to file the affidavit\nwithin the specified period and that the affidavit was filed as soon as\nwas reasonably possible.\n (2) A court may upon like proof grant leave to file the affidavit\nwithin a reasonable time after the expiration of the specified period.\nIn making its decision the court shall also and in particular consider,\nwhether the corporation acquired actual knowledge of the essential facts\nconstituting the claim within the time specified in paragraph one of\nsubsection (a) hereof or a reasonable time thereafter. The court shall\nalso consider all other relevant facts and circumstances, including\nwhether:\n (A) The claimant failed to file a timely affidavit by reason of the\nclaimant's justifiable reliance upon settlement representations made by\na person believed to be the insurance representative of the financially\nirresponsible motorist.\n (B) The claimant in filing made an excusable error concerning the\nidentity or existence of the corporation against which the claim should\nor could be filed.\n (C) The delay in filing substantially prejudiced the corporation in\nmaintaining a defense on the merits.\n (c) Application to the court for leave to file must be made within one\nyear from the beginning of the period for filing the affidavit,\nspecified in paragraph one, two, or three of subsection (a) hereof upon\naffidavit showing the evidentiary facts which are relied on in support\nof the proof required in subsection (b) of this section, accompanied by\na copy of the proposed affidavit. Notice of the return time together\nwith a copy of the application must be served at least eight days before\nthe time named for the hearing upon the corporation by delivery to the\nperson designated by law as a person to whom a summons in an action in\nthe supreme court issued against such party may be delivered.\n (d) Every qualified person shall promptly furnish the corporation with\ncopies of all papers in any action for the enforcement of every cause of\naction referred to in paragraph one, two, or three of subsection (a)\nhereof.\n (e) The commissioner shall furnish to the corporation, upon request,\ninformation as to whether any operator or owner of a motor vehicle\ninvolved in any accident had in effect at the time of the accident any\nmotor vehicle liability insurance or other evidence that the motor\nvehicle was an insured motor vehicle.\n