The Rogak Report: 06 August 2004 ** MVAIC - Statute of Limitations **
- COURT RESOLVES STATUTE OF LIMITATIONS QUESTION ON LAWSUITS AGAINST
Salas v. Motor Vehicle Accident Indemnification Corporation, NYLJ
08/06/04 (Supreme Court, Kings County) (RIVERA, j.)
Plaintiff was a pedestrian on 6/03/00 when she was struck by a hit
and run vehicle on a Brooklyn street. Police responded to the scene
and made a report. On 8/23/00, plaintiff mailed a Notice of
Intention To Make A Claim on MVAIC for her injuries.
On 5/09/03, plaintiff filed an Order to Show Cause (OSC), a Petition,
and Request for Judicial Intervention (RJI) with the Kings County
Clerk requesting permission to sue MVAIC pursuant to Insurance Law
section 5218. On 5/30/03, with no signed order yet, plaintiff
submitted an "emergency affirmation," and on the same day, a Supreme
Court justice signed the OSC, making it returnable 6/19/03.
On 6/19/03, the Petition was heard in court. MVAIC did not appear,
and a judge issued an Order giving plaintiff permission to sue MVAIC,
on default. On 6/20/03, the judge's Order was entered in the County
Clerk's office. On 7/09/03, plaintiff purchased an index number and
filed a summons and complaint with the clerk. On 7/28/03, plaintiff
served MVAIC with the summons. MVAIC then made a Motion to dismiss
the Complaint as barred by the Statute of Limitations.
The Court examined the issue of when the statute of limitations
begins to run in a claim against MVAIC. A personal injury action
accrues on the day the injury occurs. The statute of limitations in
negligence actions is three years. As this plaintiff was injured on
6/03/00, the statute would normally expire on 6/03/03. However,
during the time in which a court is considering a request made to sue
MVAIC under Insurance Law 5218, the statute of limitations, unless it
has already expired, is tolled from the commencement of the action
until an Order is entered granting relief. The reason for tolling
the Statute of Limitations for the duration of the Petition is
because, during the pendency of the Petition, plaintiff has no right
Although Insurance Law 5218 does not specify the type of action a
plaintiff must bring to obtain permission to sue MVAIC, prior case
law has clarified that a special proceeding is necessary, commenced
via Order to Show Cause. A special proceeding is "commenced" with
the filing of the Petition.
In the case at hand, plaintiff commenced the special proceeding by
filing a Petition on 5/09/03, more than 3 weeks before the Statute of
Limitations expired. The Statute of Limitations was then tolled from
5/09/03 until 6/30/03, when the judge's Order granting the Petition
To calculate how long after the entry of the Order the plaintiff has
to commence the action against MVAIC, you count the number of days
between the commencement of the special proceeding requesting
permission to sue MVAIC and the date that the statute of limitations
would have expired. The resulting number is the number of days the
plaintiff has to sue MVAIC after entry of the Order granting
permission to sue. (Vasquez v. MVAIC, 272 AD2d 275).
In this case, the period from 5/09/03 (when the special proceeding
was filed) until 6/09/03 (when the Statute of Limitations would have
expired) was 25 days. Therefore plaintiff had 25 days after 6/30/03
(the date the Order was filed) in which to commence a lawsuit against
MVAIC. Twenty-five days after 6/30/03 would be 7/25/03. Plaintiff
actually commenced her lawsuit against MVAIC on 7/09/03 -- within the
25 day period.
And because service on MVAIC was properly made, plaintiff's lawsuit
is timely and MVAIC's Motion to dismiss on Statute of Limitations
ground was denied.