Opinion
December 3, 1970
Appeal from the Monroe Special Term.
Present — Goldman, P.J., Marsh, Moule, Bastow and Henry, JJ.
Order unanimously reversed, without costs, and application denied. Memorandum: Motor Vehicle Accident Indemnification Corporation (MVAIC) appeals from an order compelling it to accept as timely notice of claim filed by petitioner-respondent. Petitioner's decedent was killed on January 19, 1968 when he was struck by an automobile driven by one Rohr. Letters of administration were issued to petitioner on October 29, 1968. At a Motor Vehicle hearing on June 19, 1968 Rohr claimed that he carried insurance, but "during the Fall of 1968" Rohr's attorney informed petitioner's attorney "that there was some question of coverage". On December 16, 1968 summons and complaint were served on Rohr and he failed to serve an answer or in any manner respond to the service upon him. Petitioner's attorney was definitely informed on February 18, 1969 that Rohr had no insurance. Notwithstanding these facts, petitioner did not serve MVAIC with a notice of intention to make claim until April 23, 1969, some 15 months after the accident and 6 months after her appointment as administratrix. The notice not having been filed within 90 days after the accrual of the cause of action, as required by subdivision (a) of section 608 Ins. of the Insurance Law, petitioner contends that service was nevertheless timely for it "was filed as soon as was reasonably possible" (Insurance Law, § 608, subd. [c]). Petitioner's attorney asserted that the reason for the delay in filing the notice was the death of his secretary and "that the papers were misplaced". Special Term found that this explanation satisfied the statutory provision for filing "as soon as was reasonably possible". We cannot agree with this conclusion. ( Matter of Nasello [ MVAIC], 30 A.D.2d 1041.) The principle controlling here was clearly enunciated by the Court of Appeals in Matter of Jones v. MVAIC ( 19 N.Y.2d 132, 136). The court said that notwithstanding that "compliance was difficult, if not impossible, courts are powerless to engraft judicial exceptions to periods of limitation prescribed by the Legislature". In creating this new remedy the Legislature imposed the time limitation for seeking relief and the statute must be strictly construed ( Grys v. MVAIC, 14 A.D.2d 821). The statutory language permits late filing only when death or disability is the cause of the delay in filing and the courts have no discretion for reasons other than those stated in the statute ( Matter of Krouner v. MVAIC, 23 A.D.2d 711; Matter of Rosante v. MVAIC, 15 A.D.2d 825). Neither the difficulty in determining the existence of insurance nor the death of petitioner's attorney's secretary, the reasons given for the late filing, are legal excuse for noncompliance with the 90-day filing period. The amendment to section 608, even if it were applicable to the circumstances here, was not effective until September 1, 1969 and, therefore, affords no relief to petitioner for the 90-day period expired well before the effective date of the amendment.