| Knight v Motor Veh. Acc. Indem. Corp. |
| 2009 NY Slip Op 03697 [62 AD3d 665] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Willie Knight, Respondent, v Motor Vehicle AccidentIndemnification Corporation, Appellant. |
—[*1] Nicholas Martino, Jr., Staten Island, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Richmond County (Maltese, J.), dated February 12, 2008, which denied itsmotion to dismiss the complaint, in effect, for failure to comply with Insurance Law article 52and granted the plaintiff's cross motion for leave to commence this action nunc pro tunc.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the crossmotion is denied.
Contrary to the Supreme Court's determination, the plaintiff did not establish that he was a"qualified person" entitled to the protection provided by the defendant, Motor Vehicle AccidentIndemnification Corporation (hereinafter MVAIC), pursuant to Insurance Law § 5208 (a)governing motor vehicle accidents caused by financially irresponsible motorists (see generally Naula v Dela Puente, 48AD3d 434 [2008]; Barillas vRivera, 32 AD3d 872 [2006]). Insurance Law § 5202 (b) (i) excepts "an insured"from the definition of a "qualified person" thereunder. In opposition to MVAIC's motion todismiss and in support of his cross motion, the plaintiff asserted that the motorcycle he wasoperating at the time of the accident was owned by nonparty Elston Wilson, who "had coveragefor bodily injury [but] did not have coverage for uninsured motorist or no-fault benefits, since[such coverage is] not required under the No-Fault law" for motorcycles.
Contrary to the plaintiff's assertion, motorcycles are not exempt from the requirement thatthe owner obtain an endorsement for uninsured motorists coverage (see Matter ofCountry-Wide Ins. [*2]Co. v Wagoner, 45 NY2d 581,586-587 [1978]; Matter of Kenyon, 105 AD2d 530 [1984]; see also InsuranceLaw § 5202 [a]; cf. Matter ofProgressive Northeastern Ins. Co. v Scalamandre, 51 AD3d 932, 933 [2008]; Matterof Nationwide Mut. Ins. Co. v Riccadulli, 183 AD2d 111 [1992]). Further, if theendorsement is not expressly included in a policy, it will be implied (see Matter of Kenyon,105 AD2d at 532). Moreover, the plaintiff failed to proffer evidence sufficient to establishthat he was uninsured, as he did not submit the policy of insurance pertaining to the motorcycleand, thus, failed to support his assertions regarding the scope of coverage under that policy(see Kilpatrick v Utica Ave. Auto Sales, 270 AD2d 233 [2000]; Muhammad v Diaz,198 AD2d 32 [1993]; Bell v Morris, 169 Misc 2d 1062 [1996]). Accordingly, theSupreme Court should have granted MVAIC's motion to dismiss the complaint, in effect, forfailure to comply with Insurance Law article 52.
For the same reason, there was no basis for granting the plaintiff's cross motion pursuant toInsurance Law § 5208 (b) (2) for leave to commence this action nunc pro tunc, as theplaintiff failed, as a threshold matter, to demonstrate that he was uninsured (see generallyMatter of Rice v Allstate Ins. Co., 32 NY2d 6, 10 [1973]; Insurance Law § 5202 [b][i]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Mastro, J.P., Skelos, Santucci and Hall, JJ., concur.