Mercer v. Motor Vehicle Accident Indemnification Corp. , 413 N.Y.S.2d 383 ( 1979 )

Silverman, J. (dissenting in part).

I would reverse the order appealed from except as to petitioner Adesina Mercer and deny the remaining petitioners’ motion to file late notice of intention to make claim against MVAIC.

Petitioners claim to have been injured in an accident involving an uninsured motorist on September 21, 1976. It is alleged that on December 1, 1976 petitioners’ attorney made a request as to insurance status to the State Motor Vehicles Department. Late in January, 1977—apparently after January 25, 1977— petitioners’ attorney received a notification that on the date of the last registration, i.e., February 18, 1976, the vehicle involved was insured by Nassau Insurance Co. Nothing was said about whether the vehicle was insured on the date of the accident. Inquiry of Nassau Insurance Co. brought the response that Nassau Insurance Co.’s policy did not cover the vehicle on the date of the accident. Petitioners’ attorney again communicated with the State Motor Vehicles Department and in June, 1977 received a report that the vehicle was not insured on the date of the accident.

Thereupon, in July, 1977 petitioners served on MVAIC a notice of intention to make claim. Subdivision (a) of section 608 of the Insurance Law requires as a condition precedent to the right to apply for payment from MVAIC that the claimant file with MVAIC an affidavit stating that he has a cause of action against the owner of an uninsured motor vehicle and that he intends to make a claim thereon; such affidavit must be filed within 90 days of the accrual of the cause of action. Subdivision (c) of section 608 of the Insurance Law permits extension of this period "where the qualified person is an infant * * * or in the event that the injured person fails to file within ninety days, due to receipt of erroneous information from the department of motor vehicles”.

As the majority points out, this statute is an attempt to alleviate the problem caused by receipt of inaccurate information as to insurance from the Department of Motor Vehicles. But all legislation is a choice among various possible positions and remedies. The Legislature could have chosen to permit the filing of a notice of intention to sue within a specified period after receipt of accurate information as to insurance from the Department, even though such information is received more than 90 days after the accident, provided the request for the information is made either within 90 days of the accident or reasonably expeditiously; and that is substantially the effect of the majority’s holding. But the Legislature did not make that choice. Instead it only granted relief where the failure to file within 90 days is "due to receipt of erroneous information from the department of motor vehicles.”

Even assuming, in the present case, that the January, 1977 communication from the Department of Motor Vehicles was erroneous rather than merely incomplete, that information was not received until late in January, 1977, more than 90 days after the accident. Thus, it cannot be said that the failure to file within 90 days was due to the receipt of erroneous information from the Department of Motor Vehicles, and accordingly the application should have been denied as to petitioners Carol Ann Mercer and Deborah Williams.

However, Adesina Mercer was five years old at the time of the accident and plainly she was prevented from the timely filing of her claim because of her infancy. Thus, the guardian is entitled to relief on behalf of Adesina Mercer.

Furthermore, in cases governed by section 608—other than hit and run cases—the suit is not to be prosecuted against MVAIC directly but is prosecuted against the defendant, with MVAIC playing the role customarily played by liability insurers. (Insurance Law, §§ 609, 610.)

Birns, J. P., and Evans, J., concur with Fein, J.; Silverman and Lane, JJ., dissent in part, in an opinion by Silverman, J.

Order, Supreme Court, New York County, entered on October 6, 1977, modified, on the law, to delete from the order so much thereof as (1) grants leave to petitioners to bring an action against MVAIC; (2) amends the caption to add MVAIC as a party defendant and directs service of an amended complaint; and (3) remands the case to the Civil Court, and in place thereof, grant both petitioners leave to file an affidavit and late notice of claim with MVAIC pursuant to section 608 of the Insurance Law and MVAIC is directed to enter an appearance in and assume the defense on behalf of Plexo Cab Corporation and Martin Blakely in the underlying action pending in the Civil Court as required by sections 609 and 610 of the Insurance Law and otherwise affirmed, without costs and without disbursements.