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New York Insurance - Article 52 - § 5208 Notice of Claim

Legal Research Home > New York Laws > New York Insurance (ISC) > New York Insurance - Article 52 - § 5208 Notice of Claim

 
    §   5208.  Notice  of  claim.  (a)  The  protection  provided  by  the
  corporation on account of motor vehicle accidents caused by  financially
  irresponsible motorists shall be available to:
    (1)  Any qualified person having a cause of action because of death or
  bodily injury, arising out of a motor vehicle accident occurring  within
  this  state,  who  files  with the corporation within one hundred eighty
  days of the accrual of the cause of action, as a condition precedent  to
  the  right  to  apply  for  payment  from  the corporation, an affidavit
  stating that:
    (A) the person has a cause of action for damages arising  out  of  the
  accident and setting forth the facts in support,
    (B)  the  cause  of  action  is  against  the  owner  or operator of a
  designated uninsured motor vehicle, and
    (C) the person is making a claim for such damages.
    (2) (A) Any qualified person having a cause of action because of death
  or bodily injury, arising out of  a  motor  vehicle  accident  occurring
  within  this  state  and  reported  within  twenty-four  hours after the
  occurrence to a police, peace or judicial officer in the vicinity or  to
  the  commissioner, and who files with the corporation within ninety days
  of the accrual of the cause of action, as a condition precedent  to  the
  right  to  apply  for payment from the corporation, an affidavit stating
  that:
    (i) the person has the cause of action for damages arising out of  the
  accident and setting forth the supporting facts,
    (ii)  the  cause  of  action  is  against  a  person whose identity is
  unascertainable, and
    (iii) the person is making a claim for those damages.
    (B) The fact that the accident was  not  reported  within  twenty-four
  hours  after the occurrence as required by subparagraph (A) hereof shall
  not prejudice the rights of the person if it is shown that  it  was  not
  reasonably possible to make such a report or that it was made as soon as
  was reasonably possible.
    (3) (A) Any qualified person having a cause of action because of death
  or  bodily  injury,  arising  out  of a motor vehicle accident occurring
  within this state, who files with the  corporation  an  affidavit  as  a
  condition  precedent  to  the  right  to  apply  for  payment  from  the
  corporation, stating that:
    (i) the person has a cause of action for damages arising  out  of  the
  accident for damages and setting forth the supporting facts,
    (ii)  the  insurers of the person alleged to be liable for the damages
  have disclaimed liability or denied coverage  because  of  some  act  or
  omission  of  the  person  alleged  to be liable including the denial of
  coverage based upon the lack of a policy of insurance in effect  at  the
  time the cause of action arose; provided, however, that in the case of a
  denial  of  coverage  based  upon  the  lack of a policy of insurance in
  effect at the time the cause of action arose, timely reasonable  efforts
  had been made to ascertain insurance coverage, and
    (iii) the person is making a claim for those damages.
    (B) The affidavit shall be filed within one hundred eighty days of the
  affiant's receipt of notice of the disclaimer or denial of coverage.
    (b)  If  a qualified person fails to file the affidavit as provided in
  paragraphs one and two of subsection (a)  hereof  within  the  specified
  period,  or  by  reason  of  being  an  infant or mentally or physically
  incapacitated or deceased, is prevented from  filing  the  affidavit  as
  provided  in  paragraph  three  of  such subsection within the specified
  period, or fails to file within one hundred eighty days, due to  receipt
  of  erroneous  information  from  the  department  of  motor vehicles or
  erroneous  information  from   a   police   report   with   respect   to

  identification  of  a vehicle, then upon a filing within thirty-one days
  of receipt  of  written  notice  of  correction  of  the  error  by  the
  department  of  motor  vehicles or discovery of the mistake contained in
  the police report:
    (1)  The  corporation  may  accept  the  filing  of  the  affidavit if
  accompanied by proof satisfactory to it, of the facts which  caused  the
  delay  and  that  it  was  not reasonably possible to file the affidavit
  within the specified period and that the affidavit was filed as soon  as
  was reasonably possible.
    (2)  A  court  may  upon  like proof grant leave to file the affidavit
  within a reasonable time after the expiration of the  specified  period.
  In  making its decision the court shall also and in particular consider,
  whether the corporation acquired actual knowledge of the essential facts
  constituting the claim within the time specified  in  paragraph  one  of
  subsection  (a)  hereof or a reasonable time thereafter. The court shall
  also consider all other  relevant  facts  and  circumstances,  including
  whether:
    (A)  The  claimant  failed to file a timely affidavit by reason of the
  claimant's justifiable reliance upon settlement representations made  by
  a  person believed to be the insurance representative of the financially
  irresponsible motorist.
    (B) The claimant in filing made  an  excusable  error  concerning  the
  identity  or existence of the corporation against which the claim should
  or could be filed.
    (C) The delay in filing substantially prejudiced  the  corporation  in
  maintaining a defense on the merits.
    (c) Application to the court for leave to file must be made within one
  year  from  the  beginning  of  the  period  for  filing  the affidavit,
  specified in paragraph one, two, or three of subsection (a) hereof  upon
  affidavit  showing  the evidentiary facts which are relied on in support
  of the proof required in subsection (b) of this section, accompanied  by
  a  copy  of  the  proposed affidavit. Notice of the return time together
  with a copy of the application must be served at least eight days before
  the time named for the hearing upon the corporation by delivery  to  the
  person  designated  by law as a person to whom a summons in an action in
  the supreme court issued against such party may be delivered.
    (d) Every qualified person shall promptly furnish the corporation with
  copies of all papers in any action for the enforcement of every cause of
  action referred to in paragraph one, two, or  three  of  subsection  (a)
  hereof.
    (e)  The  commissioner shall furnish to the corporation, upon request,
  information as to whether any operator  or  owner  of  a  motor  vehicle
  involved  in  any accident had in effect at the time of the accident any
  motor vehicle liability insurance  or  other  evidence  that  the  motor
  vehicle was an insured motor vehicle.

Last modified: February 16, 2012