| Matter of Acosta-Collado v Motor Veh. Acc. Indem.Corp. |
| 2013 NY Slip Op 00909 [103 AD3d 714] |
| February 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Luimy Acosta-Collado,Respondent, v Motor Vehicle Accident Indemnification Corp.,Appellant. |
—[*1] Barry M. Goldstein, Kew Gardens, N.Y., for respondent.
In a proceeding pursuant to Insurance Law § 5218 for leave to bring an actionagainst the Motor Vehicle Accident Indemnification Corp., the Motor Vehicle AccidentIndemnification Corp. appeals from an order of the Supreme Court, Queens County(Taylor, J.), dated December 23, 2011, which granted the petition and denied its crossmotion, in effect, to deny the petition and dismiss the proceeding.
Ordered that the order is reversed, on the law, with costs, the cross motion, in effect,to deny the petition and dismiss the proceeding is granted, the petition is denied, and theproceeding is dismissed.
On August 6, 2008, the petitioner, while riding a bicycle on 102nd Street between37th and 39th Avenues in Corona, Queens, allegedly was injured when he was struck bya motor vehicle backing out of a driveway. The vehicle left the scene of the accident, butthe petitioner and two witnesses observed the make and model of the vehicle and itslicense plate number. A subsequent investigation ascertained that the vehicle wasregistered to Nestor B. Sarmiento of Corona and insured by Allstate Property andCasualty Insurance Company (hereinafter Allstate). In April 2009 Allstate denied thepetitioner's claim for no-fault benefits, which claim mistakenly contained an incorrectaccident date. In August 2011 the petitioner commenced a personal injury action againstSarmiento in the Supreme Court, Queens County, under index No. 18458/11. After filinga notice of intention to file claim with the Motor Vehicle Accident Indemnification Corp.(hereinafter MVAIC), the petitioner commenced this proceeding pursuant to InsuranceLaw § 5218 for leave to bring an action against MVAIC for the payment ofno-fault benefits. MVAIC cross-moved, in effect, to deny the petition and dismiss theproceeding. The Supreme Court granted the petition and denied the cross motion andMVAIC appeals.
MVAIC was created in 1958 to compensate innocent victims of hit-and-run motorvehicle accidents (see Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 510[1983]). Article 52 of the New York Insurance Law is entitled the "Motor VehicleAccident Indemnification Corporation Act" (Insurance Law § 5201 etseq.). The procedure for applying to a court for leave to bring an action againstMVAIC is set forth in Insurance Law § 5218. That section provides, inter alia, thata court [*2]may permit an action to be brought againstMVAIC if certain criteria are met, including demonstrating to the court that "allreasonable efforts have been made to ascertain the identity of the motor vehicle and ofthe owner and operator and either the identity of the motor vehicle and the owner andoperator cannot be established, or the identity of the operator, who was operating themotor vehicle without the owner's consent, cannot be established" (Insurance Law§ 5218 [b] [5]). Here, the petitioner failed to sustain his burden of demonstratingthat the accident was one in which the identity of the owner and operator was unknownor not readily ascertainable through reasonable efforts (see Matter of Troches vMotor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991]). Rather, "there is substantialevidence linking the suspect vehicle to the accident and, therefore, MVAIC is aspeculative party" (Byrd v Johnson, 60 AD2d 900, 900-901 [1978]). As such, thepetitioner is required to exhaust his remedies against Sarmiento in the personal injuryaction before seeking relief from MVAIC (see Hauswirth v American Home Assur.Co., 244 AD2d 528, 529 [1997]). Only if the personal action ultimately fails due tolack of proof of the identity of the owner and/or operator may leave to sue MVAIC beconsidered (see Matter of Frankl v Motor Veh. Acc. Indem. Corp., 53 AD2d 614[1976]; Matter of Chocko v Motor Veh. Acc. Indem. Corp., 20 AD2d 728[1964]; Matter of Ruiz v Motor Veh. Acc. Indem. Corp., 19 AD2d 832 [1963]).
The petitioner's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted MVAIC's cross motion, deniedthe petition, and dismissed the proceeding. Dillon, J.P., Angiolillo, Leventhal and Miller,JJ., concur.