Opinion
511603/19
08-30-2019
In the Matter of the Application of Clinton Xavier HASKINS, Petitioner, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Respondent.
Vel Belushin, Esq., Belushin Law Firm, P.C., 1712 Kings Highway, Suite 2, Brooklyn, New York 11229, (718) 787-4470, Attorney for Plaintiff Sheila Ahmed, Esq., Law Office of Jaime E. Gangemi, 100 William Street, 14th Floor, New York, New York 10038, (646) 205-7880, Attorney for Defendant
Vel Belushin, Esq., Belushin Law Firm, P.C., 1712 Kings Highway, Suite 2, Brooklyn, New York 11229, (718) 787-4470, Attorney for Plaintiff
Sheila Ahmed, Esq., Law Office of Jaime E. Gangemi, 100 William Street, 14th Floor, New York, New York 10038, (646) 205-7880, Attorney for Defendant
Francois A. Rivera, J.
By order to show cause and petition, filed on May 23, 2019, petitioner Clinton Xavier Haskins (hereinafter petitioner or Haskins), seeks an order, pursuant to New York Insurance Law § 5221, compelling the respondent Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) to provide payment of No-fault benefits to the petitioner. This application is opposed by MVAIC.
Notice of Motion
Affirmation in Support
Verified Petition
Exhibits A to D
Affirmation in Opposition
Exhibit A
Reply Affirmation
Exhibit A to D
BACKGROUND
On May 23, 2019, Haskins commenced the instant special proceeding by electronically filing an order to show cause and verified petition with annexed exhibits (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). The commencement papers allege the following salient facts. On August 17, 2018, at approximately 2:51 a.m., while Haskins was riding his bicycle on Atlantic Avenue near the intersection of Utica Avenue in Brooklyn, New York, he was struck by a motor vehicle (hereinafter the accident). Haskin alleges that the operator of the vehicle that struck him initially left the scene but returned after being followed by witnesses. That day, the police arrived at the scene, interviewed the petitioner and the operator of the offending vehicle and completed a police accident report or MV-104. According to the MV-104, the offending vehicle was a 2004 Mercury Sedan registered in Texas to Alexander Ikenhi. The driver of the offending vehicle was Emmanuel Daudu. Haskins was transported to Kings County Hospital to treat his injuries. On September 4, 2018, Haskins served a notice of intention to make a claim on MVAIC. Haskins claims that neither he nor his counsel have been able to confirm any insurance information for offending vehicle.
MOTION PAPERS
The petitioner's papers include an order to show cause, affirmation of counsel, a verified petition and four annexed exhibits labeled A through D. Exhibit A includes a facsimile copy of a FDNY Pre-hospital Care Report Summary dated August 17, 2018; a collection of progress notes titled Kings County Hospital Center Chart Review printout for Clinton Haskins. Exhibit B includes a copy of an unsigned letter to MVAIC dated September 4, 2018; New York Motor Vehicle No-Fault Insurance Law, Application for Motor Vehicle No-Fault Benefits, page 1 of 3 and page 2 of 3; a copy of a letter to MVAIC dated December 11, 2018 signed by Shira McDonald; Affidavit of No Insurance signed by Clinton Haskins on August 17, 2018; Notice of Intention to Make a Claim signed by Clinton Haskins on August 21, 2018. Exhibit C is a letter from Anderson Jean, MVAIC Qualification Processor, to Clinton Haskins dated March 19, 2019. Exhibit D is a copy of a police report dated August 30, 2018.
MVAIC's opposition consists of an affirmation of counsel and one annexed exhibit labeled A. Exhibit A is a copy of a police report dated August 30, 2018. Exhibit A is a duplicate of petitioner's exhibit D.
Petitioner's reply papers consist of an affirmation of counsel and four annexed exhibits labeled A to D. Exhibit A is a printout of a Samba Safety Texas Vehicle Record. Exhibit B is a letter from Jonathan Miles, Assistant Attorney General of Texas, to Nick Lealos, Staff Attorney Texas Department of Insurance, dated October 25, 2012. It is described as a full printout of Open Records Letter Ruling OR2012-17108. Exhibit C is a printout from the Texassure.com website of Frequently Asked Questions. Exhibit D was previously submitted by petitioner as exhibit D to its moving papers.
LAW AND APPLICATION
In the case at bar the petitioner is not seeking leave to sue MVAIC pursuant to Insurance Law § 5218. Nor is he seeking payment on behalf of any medical provider for services rendered to treat the injuries caused by the subject accident. By seeking an order compelling MVAIC to pay for first party no fault benefits, the petitioner is in effect seeking a judgment declaration that he is a qualified person as defined in Insurance Law § 5202 (b).
The commencement papers demonstrate the following facts. On August 17, 2018, petitioner was riding a bicycle on Atlantic Avenue near its intersection with Utica Avenue when he was struck and injured by a vehicle which fled and then returned to the scene. The police arrived, interviewed the petitioner and the driver of the offending vehicle and completed an accident report. Since the police were called to the scene of the accident shortly after its occurrence and made a report of the investigation, the petitioner was not required to make any further report to the police to comply with Insurance Law § 5208 (a) (2) (A) ( Daniel, In re, 181 Misc 2d 941, 945 [Civ. Ct. 1999] ). In compliance with Insurance Law § 5208 (a) (1), petitioner timely filed a notice of claim with MVAIC dated September 4, 2019.
By letter dated March 19, 2019, MVAIC advised the petitioner that he had not yet complied with the requirements of Article 52 of the Insurance Law to be a "covered person." In particular, MVAIC stated that it could not provide liability or no fault benefits until it received proof of lack of insurance and a default judgment against the operator and owner of the offending vehicle.
Insurance Law article 52 is intended to provide, inter alia, no-fault benefits for qualified persons for basic economic loss arising out of the use and operation of uninsured motor vehicles (see Insurance Law § 5201 ). In order to recover first-party no-fault benefits from defendant MVAIC, a plaintiff is required to comply with all the applicable requirements of Insurance Law article 52 (see Insurance Law § 5221 [b] [2] ; Ocean Diagnostic Imaging v. Motor Vehicle Acc. Indemnification, 8 Misc 3d 137(A) [App Term 2005] ).
Insurance Law § 5221 requires that respondent provide for the payment of first-party benefits to a "qualified person" for basic economic loss arising out of the use or operation in New York of an uninsured motor vehicle. "Qualified person" is defined as "a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative" ( Insurance Law § 5202 [b] [I] ) ( Jones v. Motor Vehicle Acc. Indemnification Corp. , 172 AD2d 942, 942 [3rd Dept 1991] ).
However, when the petitioner knows the identity of the driver or the owner of the offending vehicle, the petitioner must first exhaust against those individuals before seeking relief from MVAIC ( Hauswirth v. Am. Home Assur. Co. , 244 AD2d 528, 529 [2nd Dept 1997] ; citing, Matter of Troches v. Motor Vehicle Acc. Indem. Corp. , 171 AD2d 873 [2nd Dept 1991] ; see also, Matter of Frankl v. Motor Vehicle Acc. Indem. Corp. , 53 AD2d 614 [2nd Dept 1976] ). In the event that proceedings against the operator and owner should result in a judgment finding that neither the owner or operator or their insurer is liable for petitioner's injuries, the petitioner may then assert a claim against MVAIC pursuant to Insurance Law § 5218 (c) ( Bell v. Morris , 169 Misc 2d 1062 [App Term 2nd Dept 1996] ). Until the plaintiff has exhausted his available remedies against the operator and owner of the offending vehicle, his claims for relief as against MVAIC are premature ( Hauswirth , 244 AD2d at 528, 529,; citing Matter of Frankl , 53 AD2d 614 ).
CONCLUSION
The petition of Clinton Xavier Haskins for an order pursuant to New York Insurance Law § 5221 compelling the respondent Motor Vehicle Accident Indemnification Corporation to provide petitioner with No-fault benefits is denied without prejudice as premature.
The foregoing constitutes the decision and order of this Court.