Opinion
December 18, 1978
In a proceeding pursuant to section 610 Ins. of the Insurance Law to compel payment by the Motor Vehicle Accident Indemnification Corporation (MVAIC) of a judgment recovered by the petitioner against an alleged uninsured motorist, the appeal is from an order of the Supreme Court, Kings County, dated February 16, 1978, which granted the application. Order reversed, on the law, with $50 costs and disbursements, and matter remanded to Special Term for further proceedings in accordance herewith. In accordance with subdivision (d) of section 611 Ins. of the Insurance Law, petitioner was "required to show * * * whether the judgment debtor at the time of the accident was insured". Special Term erred in holding that MVAIC was estopped from claiming that the judgment debtor did, in fact, have such insurance merely because it had previously opted, pursuant to subdivision (b) of section 609 Ins. of the Insurance Law, to undertake the defense of the tort-feasor. Such a finding of estoppel, on these facts, is tantamount to granting to petitioner a judgment against MVAIC, merely because of its unsuccessful defense on behalf of the tort-feasor. This is contrary to the statutory scheme (cf. Cudahy v. MVAIC, 36 A.D.2d 717). The peculiar facts of Matter of Eatman v. MVAIC ( 84 Misc.2d 910) render that decision inapposite. Accordingly, the proceeding must be remanded to Special Term for a determination as to whether the judgment debtor was covered by a policy of automobile insurance on the date of the accident. Latham, J.P., Rabin, Cohalan and Margett, JJ., concur.