Opinion
2013-11-20
In the Matter of Flavia JOSEPH, respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, appellant.
Cruz & Gangi (Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. [William S. Badura], of counsel), for appellant.
In a proceeding pursuant to Insurance Law § 5218 for leave to commence an action against the Motor Vehicle Accident Indemnification Corporation, the Motor Vehicle Accident Indemnification Corporation appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated July 25, 2012, which granted the petition.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
The petitioner commenced this proceeding pursuant to Insurance Law § 5218 for leave to commence an action against the Motor Vehicle Accident Indemnification Corporation.
The petitioner failed to demonstrate that the subject accident was one in which the identity of the owner and operator of the subject motor vehicle was unknown ( see Insurance Law §§ 5208[a][2], 5218[b][5]; Matter of Harrison v. Motor Veh. Acc. Indem. Corp., 110 A.D.3d 806, 971 N.Y.S.2d 893; Matter of Acosta–Collado v. Motor Veh. Acc. Indem. Corp., 103 A.D.3d 714, 716, 962 N.Y.S.2d 149; Matter of Frankl v Motor Veh. Acc. Indem. Corp., 53 A.D.2d 614, 614, 384 N.Y.S.2d 20; Hauswirth v. American Home Assur. Co., 244 A.D.2d 528, 529, 664 N.Y.S.2d 466).
The appellant's remaining contention is not properly before this Court ( see Hauswirth v. American Home Assur. Co., 244 A.D.2d at 529, 664 N.Y.S.2d 466).
Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding. DILLON, J.P., ANGIOLILLO, DICKERSON and COHEN, JJ., concur.