N.Y. Insurance Law § 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.