At a non-jury trial held on November 4, 2005, the issue before the court was whether plaintiffs claim for no-fault benefits should be denied as untimely, since it was filed beyond the 90-day period which was the applicable time under the old regs.

Plaintiff contended it was impossible to submit the claim to the correct insurance company because the driver (the insured) supplied the wrong carrier to the police, and by the time plaintiff realized this error, the 90-day period to properly file had run.

Defendant contended that although plaintiff timely filed a claim for no-fault benefits within the 90-day period, plaintiff filed with the wrong carrier, therefore it did not receive notice until after the 90-day period had run. Defendant contended the plaintiff must be barred from enforcing the claim due to late notice. Defendant further contended that plaintiff did not prove it was impossible to timely file the claim with the defendants insurance carrier, Country-Wide Ins. Co.

Claim Filed Multiple Times

It was undisputed that an accident took place on October 27, 1998. Osiris Torres, a bicyclist was involved in an auto accident with Stephen Kempisty, the insured and owner operator under a valid Country-Wide insurance policy. The New York City Police accident report in evidence showed that the insurance company code was 385 (All-City Insurance Company). Plaintiff filed a timely claim dated December 12, 1998 with All-City Insurance Company. The claim was denied on April 20, l999 by All-City Insurance Company. The denial stated the policy was not in force on the date of the accident and the policy was cancelled on January 7, 1997.

Plaintiff then filed a claim with MVAIC shortly after All-City Insurance denied the claim. On May 20, 1999 MVAIC denied the claim. The basis of the denial by MVAIC was that there was available insurance and that Merchant and Businessmen/Country was then the current insurance company for Stephen Kempisty. When the matter was reported to MVAIC it generated notice to Country-Wide on a notice dated February 19, 1999.

A claim was filed with Country-Wide on July 30, 1999 explaining why the late claim was submitted indicating such circumstances outside claimants control.

The court noted that the MVAIC claim was denied on May 20, 1999, upon learning the correct carrier, and plaintiff filed a claim on July 30, 1999, well within 90-days of the MVAIC denial.

Country-Wide Denies Claim

On August 12, 1999, County-Wide Insurance Company issued a denial of claim. The reason set forth for this denial was as follows: As per regulation 68 of the New York State No-Fault Insurance Law: In the event of an accident, written notice setting forth details sufficient to identify the eligible insured person along with reasonable obtainable information regarding the time, place, and circumstances of the accident shall be given to the company or the companys authorized agents as soon as practicable, but in no event more than 90 days after the date of accident. Pursuant to the above all no-fault benefits are denied.

The two issues before the court are: (1) Whether the plaintiffs can maintain an action for no-fault insurance benefits against the insurer, absent notice to the insurer within 90-days after the date of accident, and (2) Whether the subsequent denials issued by the defendant insurance company were proper.

The no-fault regulation in effect at the time of accident, which gave rise to the claim, was 11 NYCRR65.11(m)(2). This regulation provided, in pertinent part, that a notice of claim to the insurer must be filed within 90-days of the accident. Late filings were permitted upon written proof that it was impossible to comply with such limitation due to the specific circumstances beyond the claimants control.

Plaintiff Exercised Utmost Dilligence

It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer. Here the court has substantial evidence before it that the injured party exercised utmost diligence in pursuing the claim by first presenting its claim to All-City Insurance, then to MVIAC, and upon learning that insurance was available, further researching the claim until ultimately establishing Country-Wide Ins. Co. as the responsible insurer. Timely notice requirement will not be applied as strictly against the injured party as it would be against the insured. Therefore, the claim is deemed timely.

Defendant has not shown how it was prejudiced by the allowance of the filing of such late claim when it was aware of such claim prior to the filing of plaintiffs claim. The facts of this specific case clearly document that compliance with the deadline to file a claim within 90 days was impossible due to specific circumstances beyond the claimants control.

Accordingly, the court, having found that the plaintiff timely notified the defendant of its claim, grants judgment in favor of plaintiff.

Glenn Berman a/a/o Osiris Torres and Deepika Bajaj v. Country-Wide Ins. Co., 2006 NY Slip Op 50977(U) (Civil Court, Queens County) (Dufficy, j) (index no. 650959/03)