Opinion
No. CA 06-03456.
March 14, 2008.
Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered November 2, 2006. The order denied petitioner's application for permission to commence an action against respondent pursuant to Insurance Law § 5218.
DAVID G. GOLDBAS, UTICA, FOR PETITIONER-APPELLANT.
BOND, SCHOENECK KING, PLLC, ALBANY (RYAN M. FINN OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Present: Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Oneida County, for a hearing pursuant to Insurance Law § 5218 (b) (5).
Memorandum: Petitioner, allegedly the victim of a hit-and-run accident, appeals from an order denying his application for an order permitting him to commence an action against respondent pursuant to Insurance Law § 5218. We agree with petitioner that, by the affidavit of his attorney, he established the applicability of the presumption that he delivered the requisite notice of claim to respondent by mail ( see Nassau Ins. Co. v Murray, 46 NY2d 828, 829; see generally Insurance Law §§ 5208, 5218 [b] [1]), and that respondent failed to rebut that presumption ( see Nassau Ins. Co., 46 NY2d at 829-830). We further agree with petitioner that, on the record before us, Supreme Court erred in denying his application without conducting a hearing pursuant to Insurance Law § 5218 (b) to enable him to establish that he made "all reasonable efforts . . . to ascertain the identity of the motor vehicle and of the owner and operator" (§ 5218 [b] [5]; see Matter of O'Rourke v Motor Veh. Acc. Indem. Corp., 29 AD2d 938; Matter of Malitz v Motor Veh. Acc. Indem. Corp., 17 AD2d 108). We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to Insurance Law § 5218 (b) (5).