Opinion
530 CA 20-01482
08-26-2021
In the Matter of Samid GRAVES, Petitioner-Respondent, v. MVAIC, Respondent-Appellant, and State Farm Insurance Company, Respondent-Respondent.
KORNFELD, REW, NEWMAN & SIMEONE, SUFFERN (WILLIAM S. BADURA OF COUNSEL), FOR RESPONDENT-APPELLANT. SPADAFORA & VERRASTRO, LLP, BUFFALO (JOSEPH A. TODORO OF COUNSEL), FOR PETITIONER-RESPONDENT. HAGELIN SPENCER LLC, BUFFALO (LAURA B. GARDINER OF COUNSEL), FOR RESPONDENT-RESPONDENT.
KORNFELD, REW, NEWMAN & SIMEONE, SUFFERN (WILLIAM S. BADURA OF COUNSEL), FOR RESPONDENT-APPELLANT.
SPADAFORA & VERRASTRO, LLP, BUFFALO (JOSEPH A. TODORO OF COUNSEL), FOR PETITIONER-RESPONDENT.
HAGELIN SPENCER LLC, BUFFALO (LAURA B. GARDINER OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and that part of the application seeking leave to proceed with an action against respondent MVAIC is denied.
Memorandum: In this proceeding petitioner, allegedly the victim of a hit-and-run accident, made an application for, inter alia, leave to proceed with an action against respondent MVAIC pursuant to Insurance Law § 5218. MVAIC appeals from an order granting the application to that extent. We agree with MVAIC that Supreme Court erred in granting that part of the application. Petitioner failed to meet his burden of demonstrating that "the accident was one in which the identity of the owner and operator was unknown or not readily ascertainable through reasonable efforts" ( Matter of Acosta-Collado v. Motor Veh. Acc. Indem. Corp. , 103 A.D.3d 714, 716, 962 N.Y.S.2d 149 [2d Dept. 2013] ; see § 5218 [b] [5] ; Matter of Yi Song He v. Motor Veh. Acc. Indem. Corp. , 128 A.D.3d 525, 525, 9 N.Y.S.3d 53 [1st Dept. 2015] ). In support of his application, petitioner submitted photographs of the white van that he believed to have run over his foot, one of which clearly depicts the license plate number, as well as correspondence from MVAIC and respondent State Farm Insurance Company identifying the owner and presumed operator of the van by name and policy number. Petitioner was required to exhaust his remedies against the owner in a personal injury action before seeking relief from MVAIC (see Acosta-Collado , 103 A.D.3d at 716, 962 N.Y.S.2d 149 ; Hauswirth v. American Home Assur. Co. , 244 A.D.2d 528, 529, 664 N.Y.S.2d 466 [2d Dept. 1997] ). Only if such an action ultimately fails due to lack of proof of the identity of the owner or operator may the court grant leave to proceed with an action against MVAIC (see Acosta-Collado , 103 A.D.3d at 716, 962 N.Y.S.2d 149 ; see also Hauswirth , 244 A.D.2d at 529, 664 N.Y.S.2d 466 ).