Erhardt v. Motor Vehicle Accident Indemnification Corp.

In a proceeding pursuant to section 608 of the Insurance Law for leave to file a late affidavit of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC), the appeal is from an order of the Supreme Court, Queens County, dated February 23, 1976, which granted petitioner’s application. Order reversed, on the law, without costs or disbursements, and proceeding dismissed. No findings of fact were presented for review. Petitioner sets forth grounds which would warrant the granting of his petition had this proceeding been commenced within one year of the accrual of his claim (see Insurance Law, § 608, subd [c]; Matter of Raiford v Motor Vehicle 693 Acc. Ind. Corp., 29 AD2d 883; Matter of Smolenski v Motor Vehicle Acc. Ind. Corp., 26 AD2d 820); the application, however, was made two years after the date of the accident. Section 608 of the Insurance Law provides that an infant may be relieved of his failure to timely file his claim with the MVAIC by a court of competent jurisdiction, but that an application for such relief must be made within one year of the accrual of the claim. Since this application was made more than one year after the accrual of the Claim, the court was without power to grant the relief sought (see Matter of Walker v Motor Vehicle Acc. Ind. Corp., 41 AD2d 527, affd 33 NY2d 781). We believe that, in enacting the statute as it did, the Legislature was mindful of the plight of an injured infant who might have a claim against the MVAIC, and his concomitant disability to timely perfect such a claim engendered by his age and reliance upon a parent who might not take the proper steps to preserve his rights under the statute. That is apparent from the fact that the statute permits a court to relieve such a child’s default. However, cognizant of this, the Legislature also specifically provided that such /relief may be accorded to such a child only if his claim is pressed within one year following its accrual. Hopkins, Acting P. J., Margett, Dam/iani, Titone and Hawkins, JJ., concur.