| Naula v Dela Puente |
| 2008 NY Slip Op 01123 [48 AD3d 434] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Segundo Naula et al., Respondents, v Arturo Lopez DelaPuente et al., Defendants. Motor Vehicle Accident Indemnification Corporation, NonpartyAppellant. |
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In an action to recover damages for personal injuries, nonparty Motor Vehicle AccidentIndemnification Corporation appeals from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated September 19, 2006, as, upon reargument, adhered to so much of aprior determination in an order dated March 21, 2006 as granted the plaintiffs' motion to compelit to serve an answer on behalf of the defendants.
Ordered that the order dated September 19, 2006 is modified, on the law, by deleting theprovision thereof which, upon reargument, adhered to so much of the order dated March 21,2006 as granted that branch of the plaintiffs' motion which was to compel nonparty MotorVehicle Accident Indemnification Corporation to answer the complaint insofar as asserted by theplaintiff Segundo Naula, and substituting therefor a provision vacating so much of the orderdated March 21, 2006 as granted that branch of the motion, and thereupon denying that branch ofthe plaintiffs' motion; as so modified, the order dated September 19, 2006 is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff Segundo Naula (hereinafter the plaintiff driver) failed to demonstrate that hewas a "qualified person" entitled to benefits from the appellant, the Motor Vehicle AccidentIndemnification Corporation (hereinafter the MVAIC) (Insurance Law § 5202 [b]; seeInsurance Law § 5208 [a] [3] [A]; see generally Matter of Rice v Allstate Ins. Co.,32 NY2d 6, 10 [1973]; Kilpatrick v Utica Ave. Auto Sales, 270 AD2d 233 [2000];Matter of Kenyon, 105 AD2d 530, 532 [1984]). At the time of the accident, the plaintiffdriver was operating a vehicle (hereinafter the subject vehicle) for which he [*2]was listed as the registered owner on the New York StateDepartment of Motor Vehicles registration expansion record. The subject vehicle was insuredunder a policy of insurance issued by nonparty American Insurance Co., a Florida insurer(hereinafter the American Policy) to Angela Guzman, a friend of the plaintiffs with whom theplaintiff driver resided in Queens. Guzman also owned a residence in Florida.
The subject vehicle was "an uninsured motor vehicle" pursuant to Insurance Law §5202 (d) because the vehicle did not have the coverage required by Insurance Law § 3420(f). Further, the American policy provided that "[w]hen we certify this policy as proof under anyfinancial responsibility law, it will comply with the law to the extent of the coverage provided bylaw." Since the policy had not been certified as proof under New York's financial responsibilitylaws, it was not subject thereto (cf. Matter of General Acc. Ins. Co. v Loi Tran, 246AD2d 543 [1998]). Thus, the plaintiff driver failed to demonstrate that he was not the "owner ofan uninsured motor vehicle" (Insurance Law § 5202 [b]; see Barillas v Rivera, 32 AD3d872 [2006]) and that he was not "operating an uninsured motor vehicle" at the time of theaccident (Insurance Law § 5211 [a] [2]). Accordingly, upon reargument, the SupremeCourt should have denied that branch of the plaintiffs' motion which was to compel the MVAICto answer the complaint insofar as asserted by the plaintiff driver on behalf of the defendants inthe action.
The Supreme Court, however, properly granted that branch of the plaintiffs' motion whichwas to compel the MVAIC to answer the complaint insofar as asserted by the plaintiff ManuelNaula (hereinafter the plaintiff passenger) (see generally Viuker v Allstate Ins. Co., 70AD2d 295 [1979]). The plaintiff passenger, who, unlike the plaintiff driver, was neither theowner nor the operator of the subject vehicle, met his burden of demonstrating that he was aqualified person entitled to MVAIC protection (see Insurance Law § 5202 [b];§ 5211 [a] [2]). In addition, the plaintiff passenger submitted proof establishing thatnonparty Nationwide Insurance Company, the insurer of the defendants' vehicle, had deniedcoverage for the offending vehicle (see Insurance Law § 5208 [a] [3] [A] [ii]).Spolzino, J.P., Skelos, Florio and Dickerson, JJ., concur.