Majority
p. 825Peter Rosante, Appellant, v. Bobbie L. Copenhaver, Defendant. In the Matter of Peter Rosante, Appellant, v. Motor Vehicle Accident Indemnification Corporation, Respondent.
In our opinion, the application, made on September 11, 1959, was within 120 days of the accrual of the cause of action on May 14, 1959 (General Construction Law, § 20); hence, the application was timely. Nevertheless, the application was properly denied. The record fails to disclose that the petitioner or applicant “ is an infant or is mentally or physically incapacitated or is deceased, and by reason of such disability or death ** ¥ * [was] prevented from filing the affidavit [as provided in the statute],” (Insurance Law, § 608, subd. [e]). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.