| Cardona v Martinez |
| 2009 NY Slip Op 02725 [61 AD3d 462] |
| April 9, 2009 |
| Appellate Division, First Department |
| Ricardo Cardona, Respondent, v Olga M. Martinez,Respondent, and The Motor Vehicle Accident Indemnification Corporation, Appellant, et al.,Defendant. |
—[*1] William Pager, Brooklyn, for Ricardo Cardona, respondent. Picciano & Scahill, P.C., Westbury (Thomas R. Craven, Jr. of counsel), for Olga M.Martinez, respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 17,2007, which, in an action for personal injuries sustained when plaintiff pedestrian was struck bya motor vehicle that left the scene, denied the motion of defendant Motor Vehicle AccidentIndemnification Corporation (MVAIC) to dismiss the complaint as against it, unanimouslyaffirmed, without costs.
Despite the procedural irregularities cited by MVAIC, the court properly found that plaintiffwas a "qualified person" under the Insurance Law. Insurance Law § 5218 (b) provides thatthe court may permit an action against MVAIC upon satisfaction of certain enumeratedconditions. Here, those conditions have effectively been demonstrated and there was no need fora hearing (see e.g. Milstein v Clark, 32 AD2d 935 [1969]). Plaintiff established that hecannot ascertain the identity of the owner or operator of the offending vehicle. MVAIC'sargument that there has been no judicial determination that defendant Martinez was not involvedin the accident [*2]does not warrant a different finding (see Steele v Motor Veh. Acc. Indem.Corp., 39 AD3d 78, 83 [2007], appeal dismissed 9 NY3d 989 [2007]).Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ.