Grys v. Motor Vehicle Acc. Indemnification Corp.

• Decision Date: 19 October 1961
• Citation: Grys v. Motor Vehicle Acc. Indemnification Corp., 220 N.Y.S.2d 653, 14 A.D.2d 821 (N.Y. App. Div. 1961)
• Parties: Joseph F. GRYS. Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 653

220 N.Y.S.2d 653

14 A.D.2d 821

Joseph F. GRYS. Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Oct. 19, 1961.

Frank Pitterman, Buffalo, for respondent.

Gibbons, Pottle, O'Shea & Adamson, Buffalo (F. Lambert Haley, Buffalo, of counsel), for appellant.

Before WILLIAMS, P. J., and GOLDMAN, HALPERN, McCLUSKY, and HENRY, JJ.

MEMORANDUM.

Sections 600-625 of the Insurance Law (L.1958, ch. 759, § 2) were enacted to secure to innocent victims of motor vehicle accidents recompense for financial loss suffered, inter alia, as a result of accidents caused by unidentified motor vehicles which leave the scene of an accident. In this case involving a late filing of an affidavit with the Motor Vehicle Accident Indemnification Corporation, pursuant to Insurance Law, § 608, Special Term permitted the petitioner to file an affidavit on the ground that he had substantially complied with Section 608. This section requires, as a condition procedent to the right thereafter to apply for payment from the corporation, that an affidavit setting forth the cause of action shall be filed within 90 days of its accrual. The statute provides that one who by reason of physical incapacity is prevented from filing the affidavit may apply to a court for leave to file the affidavit within a reasonable time after the expiration of the 90-day period. Application for such leave must be made within 120 days from the beginning of the applicable period for filing the affidavit. It must be made upon an affidavit setting forth evidentiary facts in support of the proof required to show compliance with the purpose and intent of the aforesaid sections and the application must be accompanied by a copy of the proposed affidavit. Insurance Law, § 608(c).

Petitioner seeks recovery for loss sustained as the result of an accident caused by an unidentified motor vehicle. The proceeding was brought on by order to show cause returnable three days before the expiration of the 120-day statutory period. Petitioner claims he was confined to a hospital during the period within which he could have filed as of right, that he was unaware of Insurance Law, § 608, and that the time consumed in investigating the accident prevented his timely filing. None of these reasons excuses late filing. Matter of Aldi v. Board of Education of Central School Dist. No. 1 1 of Towns of Rotterdam and Princeton, Schenectady County, 4 A.D.2d 921, 167 N.Y.S.2d 125; Matter of Nunziato v. City of New York, 3 Misc.2d 450, 149 N.Y.S.2d 636, affirmed 2 A.D. 670, 153 N.Y.S.2d 550; Matter of White v. City of New York, 285 App.Div. 69, 135 N.Y.S.2d 692. The language of Insurance Law, § 608(c) is substantially similar to to that of General Municipal Law, § 50-e. The latter controls the filing of a notice of claim in tort actions against municipalities and has been strictly construed. If the Legislature intended a more liberal construction of Insurance Law, § 608, it did not so indicate in using language substantially identical to that of § 50-e, subd. 5. The Legislature has unequivocally stated that the...