Petitioner Was Granted Leave to File a Late Notice of Claim Against Respondent in a Hit-and-Run Case
In Jesica Leonard v. Motor Vehicle Accident Indemnification Corporation, (4th Dept. 2018), the petitioner, a hospital employee, was struck by the respondent while she was assisting a patient into a vehicle. The respondent then drove off and was not identified. In early July, 2018, roughly 6 months after the accident, the petitioner ascertained the identity of the respondent driver. On July, 16, 2018, the petitioner filed an application for leave to file a late notice of claim against the respondent pursuant to New York’s Insurance Law. The Supreme Court granted the petitioner’s application, and the Fourth Department affirmed.
The Fourth Department explained that, normally, after an accident in which bodily injuries are sustained, but the cause of action is against a person whose identity is unascertainable, New York’s Insurance law § 5208 provides a petitioner with 90 days to file an affidavit with the respondent. Courts, however, may grant leave to file the affidavit within a “reasonable time thereafter, but no later than one year after” the accident.
In this case, the Court explained that the petitioner’s failure to file a timely notice of claim stemmed from the fact that she “did not own, possess, or insure any motor vehicle, and she did not know of respondent or its purpose until she sought legal advice in early July 2018.” The Court further pointed to the Supreme Court’s finding that the “lack of understanding that coverage may exist for a hit-and-run accident was ‘a common and excusable misunderstanding.’” For those reasons, the Court found that the affidavit was filed “as soon as reasonably possible” after the accident. The Fourth Department also found, among other things, that the respondent failed to rebut the petitioner’s claim that the respondent was not prejudiced by the delay. Therefore, the Court affirmed the Supreme Court’s decision to grant the petitioner’s leave to file a late notice of claim.
Petitioner’s Request for Leave to File a Late Notice of Claim Was Denied.
In the Matter of Simaris Diaz v. Rochester-Genesee Regional Transportation Authority (RGRTA), et al., the claimant was operating a garbage truck on August 2017, when the truck was involved in a collision with a bus allegedly owned and operated by the respondents. The claimant did not report any injuries following the accident. On October 24, 2017, the claimant retained the services of a law firm. Nonetheless, the claimant’s attorneys, for unknown reasons, failed to timely serve the notice of claim within the 90-day period as required by New York’s General Municipal Law. Instead, on January 29, 2018, claimant’s counsel filed an application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e. The Supreme Court denied the application.
On appeal, the Fourth Department affirmed the lower court’s denial of the claimant’s application. Before reaching that conclusion, the court explained that there are several factors that courts may consider when deciding to grant leave to serve a late notice of claim. However, courts should “accord great weight” to “whether the [respondents] received actual notice of the facts constituting the claim in a timely manner.” The Court went on to explain that for a claimant to show that a respondent had “notice of the facts constituting the claim,” the claimant must establish that the respondent had “knowledge of the injuries or damages claimed…,rather than mere notice of the underlying occurrence.”
In this case, Court found that the respondents lacked actual notice of the claimant’s alleged injuries within the 90-day statutory period. Moreover, the claimant’s attorneys failed to promptly notify the respondents of the “essential facts of the claim” upon learning of their failure to serve a notice of claim in a timely manner. Instead, the claimant’s attorneys waited until 180 days had passed from the date of the accident to serve the application, and did not provide a reasonable excuse for the delay. Under these circumstances, the Court could not conclude that the lower court “clearly abused its broad discretion in denying the claimant’s application.” Consequently, it affirmed the lower court’s decision to deny the application.
Prepared by Dominick F. Roa