Opinion
June 2, 1975
In a proceeding pursuant to section 608 Ins. of the Insurance Law to compel appellant to accept an affidavit of intention to make a claim, the appeal is from an order of the Supreme Court, Kings County, dated November 14, 1974, which, after a hearing, granted the application. Order reversed, without costs, and application denied. On September 23, 1973 petitioner, while a pedestrian, was struck by an automobile operated by an uninsured driver. On May 8, 1974, 7 1/2 months after the accident, a notice of claim was served on appellant. Since the notice of claim was not filed within 90 days after the accrual of the cause of action, Special Term, under the circumstances herein, lacked the power to grant the application (Matter of Jones v MVAIC, 19 N.Y.2d 132; Matter of Lloyd [MVAIC], 23 N.Y.2d 478; Matter of Raiford v MVAIC, 29 A.D.2d 883; Matter of Sheard v MVAIC, 37 A.D.2d 580; Matter of Kauffman v MVAIC, 25 A.D.2d 419). In our opinion the record does not establish that petitioner was under physical incapacity or disability as contemplated by the statute and hence she does not come within the exceptions to the 90-day statutory limitation (Matter of Raiford v MVAIC, supra). Nor does the record establish that petitioner was diligent in ascertaining and pursuing her remedies (Matter of Lloyd [MVAIC], supra; Matter of Kauffman v MVAIC, supra). Hopkins, Acting P.J., Cohalan, Brennan, Munder and Shapiro, JJ., concur.