Opinion
No. 20395/2012E.
2012-04-13
Kenneth ATTAWAY, Plaintiff, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Defendant.
William H. Cooper, Esq., Attorney for plaintiff. Sheila Ahmed, Esq., Attorney for defendant.
William H. Cooper, Esq., Attorney for plaintiff. Sheila Ahmed, Esq., Attorney for defendant.
ALEXANDER W. HUNTER JR., J.
Plaintiff's motion for an order pursuant to New York Insurance Law § 5218, permitting him to bring an action against the Motor Vehicle Accident Indemnification Corporation (MVAIC), is granted.
The cause of action is for personal injuries sustained by the plaintiff who was a pedestrian struck by a hit-and-run driver on March 3, 2011.
Plaintiff asserts that MVAIC has refused to accept responsibility to provide proper coverage for the injures he sustained, including No Fault coverage and compensation for the pain and suffering which resulted from this hit-and-run pedestrian knockdown. MVAIC has determined that it would deny coverage to the plaintiff due to plaintiff's failure to produce a police accident report and/or a 911 Call Report for the accident.
Plaintiff avers that on the day of the accident, he was crossing the intersection of Fordham Road and Webster Avenue in the Bronx. He was crossing with the traffic light in the crosswalk and was three-quarters of the way across the street when he was struck by the hit-and-run vehicle. Plaintiff contends, in his affidavit, that no police or EMS came to the scene and he could not wait for the police to arrive. Since he was only two (2) blocks from St. Barnabas Hospital, he walked to the hospital and went directly to the emergency room. While there, he complained of being struck by a hit-and-run vehicle, a fact that was confirmed in the hospital records. Plaintiff was admitted to the hospital where he received stitches to his right eye and was treated and diagnosed with a fracture of the distal radius with dorsal placement of the distal fracture and overriding fracture fragments. The emergency room records from St. Barnabas Hospital are annexed to the moving papers as Exhibit A.
Plaintiff contends that when he was discharged from the hospital the day after the accident, March 4, 2011, he went to the 52nd Precinct located at 3016 Webster Avenue in the Bronx and reported that he had been struck by a hit-and-run vehicle. He was then given an MV–104 form and was instructed to complete it and submit it to the Department of Motor Vehicles in Albany, New York. Plaintiff's counsel notes that an MV–104 is only required to be submitted by motorists/drivers and not pedestrians involved in a motor vehicle accident. A copy of said MV–104 is annexed to the moving papers as Exhibit B.
Plaintiff argues that he did everything he possibly could to report and memorialize this hit-and-run pedestrian knockdown. He immediately notified the staff at the emergency room at the hospital of what had occurred and upon release from the hospital, he went to the police precinct to report the incident. As instructed, he filled out an MV–104 form and submitted it. He also returned to the police precinct on several occasions to request that they fill out a police report for him in lieu of an MV–104 but he was repeatedly denied by the police.
On April 15, 2011, plaintiff filed a “Notice of Intention” with MVAIC requesting that MVAIC recognize him as a person who should be covered. A No–Fault benefits application was also filed on May 9, 2011 with MVAIC. On February 7, 2012, a representative from MVAIC notified plaintiff and his counsel that MVAIC would be issuing a denial of coverage based upon the fact that there was no police report documenting the hit-and-run accident in violation of MVAIC's notification provisions. Plaintiff argues that even though he reported the accident to the staff at the hospital, they failed to notify the police. Moreover, when he went to the 52nd precinct to notify them of the incident, he was given instructions on completing an MV–104 in order to document the occurrence. Under these circumstances, he should be considered a “covered person” under MVAIC's applicable rules and regulations.
MVAIC opposes the motion and asserts that plaintiff has failed to establish himself as a “qualified” person under Article 52 of the Insurance Law for failure to report the accident to the police or peace officer within 24 hours of its occurrence. MVAIC acknowledges that it received a Notice of Intention to make a claim by the plaintiff. However, an MV–104 is not a police accident report and one of the conditions precedent to qualifying and receiving benefits under Insurance Law Section 5208(a)(2)(A) is proof that the accident was reported within twenty-four hours after the occurrence to a police, peace or judicial officer. Since no police report was generated in this action and there is an MV–104 that has no date and is missing the second page of the report, the accident was not reported within the time required and MVAIC cannot qualify plaintiff for benefits. Additionally, plaintiff has not provided any explanation for why it was not reasonably possible for him to report the accident to the police within 24 hours. Therefore, he should not be permitted to qualify for benefits or be granted leave to sue MVAIC.
In reply, plaintiff asserts that it was not reasonably possible for him to wait for police to respond to the scene of the accident. When no police arrived at the scene, he did what any reasonable person would do under like circumstances and he walked to the hospital to obtain medical care. He immediately complained to the hospital staff and through no fault of his own, the hospital did not notify the police as is the proper mandatory practice in response to a hit-and-run victim's complaint. Plaintiff further asserts that defendant did not cite a relevant portion of Insurance Law Section 5208(a)(2)(B) which provides that, “The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon as was reasonably possible.” Accordingly, pursuant to Insurance Law Section 5208(a)(2)(B), plaintiff should not be prejudiced due to the lack of a drafted police report since he personally reported the hit-and-run to both the hospital and the police within twenty-four hours of the occurrence.
Additionally, a letter was sent to MVAIC's employee on October 28, 2011 detailing the events of the occurrence and explaining that plaintiff reported the accident to staff at the hospital. Plaintiff did not sign the MV104 report because it requested the signature of the driver and he was a pedestrian. Plaintiff's counsel further avers that the issue of whether or not it was reasonably possible for the plaintiff to make a timely report is a question of fact for the jury to decide and the instant motion should be granted.
Contrary to plaintiff's assertion that the issue of whether or not it was reasonably possible for the plaintiff to make a timely report of the accident is a question of fact for the jury to decide, in Cordoba v. MVAIC, 83 A.D.2d 923 (1st Dept.1981), the court ruled that the issue must be determined at a hearing. See, also, Weinstein v. MVAIC, 30 A.D.2d 651 (1st Dept.1968).
In the case at bar, plaintiff submitted copies of his hospital records which show that he informed the emergency room staff that he had been struck by a hit-and-run vehicle while as a pedestrian crossing the street. Additionally, he submits an affidavit attesting to the fact that he went to the 52nd precinct the day after the accident, when he was discharged from the hospital to report the incident. He does not know if the hospital staff ever contacted the police. At the police station, he was improperly given a Department of Motor Vehicles MV–104 form to fill out wherein he provides the facts which caused his injuries. He further claims that he attempted to have the police fill out an accident report on several occasions since the MV–104 is not required of a pedestrian but he was repeatedly denied by the police. Moreover, plaintiff claims that he could not wait at the scene of the accident for police to arrive due to the severity of his injuries and thought it was more reasonable to walk to the hospital which was two (2) blocks away from the accident.
Given the evidence submitted by plaintiff, including the hospital records and his sworn affidavit, this court finds that the motion for leave to bring an action against MVAIC should be granted. In Malitz v. MVAIC, 17 A.D.2d 108 (1st Dept.1962), the Appellate Division, First Department remanded the matter to the trial court for a hearing on the issue of whether the police were timely notified of plaintiff's accident. The court held, “Permission to sue must be obtained from the court and may be granted only when the court is satisfied that certain named conditions exist ... Among these is the requirement of notice to the police ... The issue must be determined to the satisfaction of the court before suit is allowed. It may not be reserved for the trial. It may well be that an issue such as this and others that may arise as to the statutory conditions precedent to suit cannot be decided upon affidavits to the satisfaction of the court. In such instances a hearing before the court may be directed.” Id. at 109.
In the case at bar, this court is satisfied with the affidavits and other submissions of the plaintiff that the accident was reported to police as soon as was reasonably possible pursuant to Insurance Law section 5208(a)(2)(B). It is unnecessary for this court to hold a hearing to allow plaintiff to testify to the same assertions he makes in his affidavit and submit the same proof he submitted with his motion.
Accordingly, plaintiff's motion for leave to sue MVAIC is granted.
Plaintiff is directed to serve a copy of this order with notice of entry upon the defendant and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.