Opinion
May 31, 1988
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that appeal from the undated order is dismissed, as that order was superseded by the order dated August 27, 1986, made upon reargument; and it is further,
Ordered that order dated August 27, 1986, is reversed insofar as appealed from, with costs, upon reargument the undated order is vacated, and the motion of the intervenor MVAIC to strike and vacate the plaintiff's notice of claim filed against it is granted; and it is further,
Ordered that the MVAIC is awarded one bill of costs.
The plaintiff was injured in an automobile accident on August 6, 1983, and his notice of claim against the intervenor MVAIC was not filed with the MVAIC until November 16, 1984, over 15 months later. Pursuant to Insurance Law § 5208 (a), the plaintiff was obligated to file a notice of claim based on the uninsured status of the motorists involved within 90 days of the accrual of the cause of action. The plaintiff nevertheless argues that he was entitled to file a late notice of claim, since he mistakenly relied on erroneous information from the New York State Department of Motor Vehicles and from a police report concerning the status of the motorists involved (see, Insurance Law § 5208 [b]). However, that exception is unavailing to the plaintiff since his opposing motion papers submitted to the Supreme Court, which in effect constituted a cross motion to compel MVAIC to accept the late notice of claim, was not made within one year of the accrual of the underlying cause of action (see, Insurance Law § 5208 [c]; Matter of Thomas v Jiminez, 52 A.D.2d 782; Matter of Sampson [MVAIC], 55 A.D.2d 957; Matter of Thompson v MVAIC, 57 A.D.2d 713, affd 44 N.Y.2d 765; Matter of Smith v MVAIC, 74 A.D.2d 639). Nor can the plaintiff prevail on a theory of estoppel (see, Zeigler v MVAIC, 53 A.D.2d 590). Accordingly, the order dated August 27, 1986, must be reversed and, upon reargument, the motion of the intervenor MVAIC granted. Mollen, P.J., Mangano, Eiber and Sullivan, JJ., concur.