Opinion
March 25, 1971
Order, Supreme Court, Bronx County, entered on May 21, 1970, granting permission to the petitioner to institute suit against the respondent, Motor Vehicle Accident Indemnification Corporation (MVAIC) pursuant to section 618 Ins. of the Insurance Law, unanimously reversed, on the law and the facts, without costs and without disbursements, and the motion denied. Section 618 Ins. of the Insurance Law permits suit directly against MVAIC if, upon the appropriate application thereunder, the court is satisfied: (1) the identity of the motor vehicle and the owner and the operator thereof is unknown and unascertainable or (2) where it is established that the vehicle was used without the consent and permission of the owner by an unknown person. The record establishes that the claimant was injured in a one-car accident involving a known owner and operator. Special Term granted the application (to sue MVAIC directly) observing that the claimant sufficiently established that the vehicle which caused the accident out of which this claim arose was uninsured. We hold this to be error. An action cannot lie against MVAIC directly unless one of the two conditions above stated is met. The fact that the tort-feasor is uninsured is immaterial. Zelanka v. MVAIC ( 32 A.D.2d 847) relied on by Special Term has no application to the case at bar. Zelanka involved an "insured" person seeking arbitration in accordance with the provisions of the policy. The instant case involves an application by a qualified person pursuant to section 618 Ins. of the Insurance Law. Section 618 applies to "hit-and-run" cases. In the case at bar petitioner was a passenger in a motor vehicle which struck an elevated railroad pillar. There is no "hit-and-run" motor vehicle. Petitioner's sole remedy in the case of an uninsured motor vehicle is statutory. Sections 610 to 612 of the Insurance Law, applicable to a qualified person, as is the petitioner, require the recovery of a final judgment against the financially irresponsible motorist, before applying for an order directing the respondent-appellant to pay the amount of statutory liability, which is subject to reduction by the amount of collectible liability insurance, the available assets of and any settlement with the irresponsible motorist. The statutory right of the respondent-appellant under section 609 to defend a suit against the irresponsible motorist is not a grant to the petitioner of the right to sue the respondent-appellant in the first instance.
Concur — Stevens, P.J., Capozzoli, McGivern, Nunez and McNally, JJ.