Opinion
12571/09.
Decided February 1, 2010.
Attorney for Petitioner, MELISSA VEGA, Law Offices of William Pager, Brooklyn, New York.
Attorney for Respondent, MVAIC, Alex Zeltser, Esq., Cruz Gangi and Associates, New York.
By order to show cause filed on July 10, 2006, petitioner seeks an order allowing her to bring a direct action against respondent Motor Vehicle Accident Indemnification Corporation (MVAIC) pursuant to Insurance Law § 5218. MVAIC opposes the motion.
MOTION PAPERS
Petitioner's order to show cause is supported by an affirmation of counsel, the verified petition and six annexed exhibits labeled A through F. Exhibit A is a letter from the New York State Department of Motor Vehicles, dated July 16, 2007, advising petitioner's counsel that the motor vehicle privileges of Ennis V. Summey were revoked. Exhibit B is a copy of petitioners' affidavit notarized on July 7, 2006. Exhibit C contains two letters. The first is a letter from the New Jersey Indemnity Insurance Company, dated July 5, 2006, advising petitioner's counsel that as of February 28, 2006, Taneisha W. Stockley's insurance policy coverage expired. The second letter is an abstract from the New Jersey Department of Motor Vehicle. Exhibit D is a New York State Department of Motor Vehicles' police accident report (MV-1044) of the petitioner's automobile accident. Exhibit E is a letter from petitioner's counsel, dated June 28, 2006, advising MVAIC of petitioner's intent to make a claim.
MVAIC has opposed the motion with an affirmation of counsel and a memorandum of law. Petitioner has replied with an affirmation of counsel and a memorandum of law. Each side has submitted an additional memorandum of law as directed by the court.
BACKGROUND
Petitioner's affidavit alleges, among other things, the following facts. On May 28, 2006, at around 2:10 p.m., she was a passenger in a vehicle, owned by Taneisha W. Stockley, and driven by Ennis V. Summry in the vicinity of West 33 Street and Bayview Avenue in Brooklyn, New York. At that time and place, Stockley's vehicle collided with a vehicle owned by Lioubov Davydova and driven by Dmitry Ponomarenko. Petitioner sustained serious physical injury due to the collision. A police accident report of this incident was prepared and filed with the New York State Department of Motor Vehicles. Petitioner's investigation revealed that Taneisha W. Stockley's vehicle was covered by an auto insurance policy (number Y142334-2) issued by the New Jersey Indemnity Company. New Jersey Indemnity Company informed petitioner's counsel that coverage under that policy terminated on February 28, 2006.
LAW AND APPLICATION
Insurance Law § 5201(b)(2) provides that the purpose of MVAIC is to provide innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, through no fault of their own, by unidentified motor vehicles which leave the scene of the accident.
Insurance Law § 5218(a) sets forth the procedure for commencing an action against MVAIC in hit and run cases:
Any qualified person having a cause of action for death or personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was at the time of the accident, in the possession of a person without the owner's consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.
Insurance Law § 5218 permits suit directly against MVAIC where a person has been injured by an automobile and cannot establish the identity of the owner and operator or the vehicle was used without the owner's consent by an unknown person ( Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). MVAIC contends that petitioner did not demonstrate that she is a qualified person pursuant to Article 52 of the Insurance Law because the identity of the owner and operator of the vehicle involved in her accident is known.
Petitioner contends that although she knows the identity of the owner and operator of the vehicles involved in the accident, since she has determined that they are uninsured, she should be permitted to bring a direct action against MVAIC.
Petitioner's motion papers conclusively establishe that the underlying incident was not a hit and run accident as defined by Insurance Law § 5218. The identity of the owner and operator is known. Accordingly, there is no basis for permitting a direct action against MVAIC ( see, Rogers v. Motor Vehicle Accident Indemnification Corporation, 300 AD2d 1000 [4th Dept. 2002]; see also, Villanueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]).
Petitioner must bring a direct action against the uninsured motorist. Depending on what happens thereafter, petitioner may be able to bring MVAIC into the action. For example, Insurance Law § 5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist ( see Villanzueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]). MVAIC may do so on its own or pursuant to a motion to compel brought by the qualified injured plaintiff ( see Naula v. Dela Puente , 48 AD3d 434 [2nd Dept. 2008] citing Viuker v. Allstate Insurance Co., 70 AD2d 295 [2nd Dept. 1979]). Or the petitioner may pursue and obtain a judgment against the uninsured motorist and seek recovery from MVAIC pursuant to Insurance Law § 5210 ( see Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). In either example, however, the relevant statute contemplates that the action was already commenced against the motorist. Neither Insurance Law §§ 5209 or 5210 contemplates or authorize a direct action against MVAIC.
Petitioner's application to sue MVAIC directly is therefore denied.
The foregoing constitutes the decision and order of this court.