Opinion
February 24, 1964
In a proceeding pursuant to statute (Insurance Law, § 618), by petitioner as administratrix of the decedent's estate, for permission to institute an action against the Motor Vehicle Accident Indemnification Corporation (MVAIC) to recover damages for the decedent's wrongful death and for conscious pain and suffering, the MVAIC appeals from an order of the Supreme Court, Kings County, entered July 10, 1962 which granted the application. Order reversed on the law and the facts, without costs, and application denied, without costs. Findings of fact implicit in the order appealed from which are inconsistent herewith are reversed and new findings are made as indicated herein. The record discloses substantial evidence of identification of the apparent hit and run driver of the vehicle which was caused to run over petitioner's intestate. Under the circumstances, the pending action against the registered owner and apparent operator of the vehicle should be prosecuted to a conclusion. If the action is unsuccessful for lack of identity of the driver, or if the action is successful but the judgment is uncollectible for lack of insurance coverage, then only should leave to sue the MVAIC be considered, provided that the petitioner has complied with the conditions prescribed and has made the application within the time limited by statute (Insurance Law, §§ 618, 620; Matter of Ruiz v. MVAIC, 19 A.D.2d 832). Kleinfeld, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.