Opinion
No. 3111/2012.
2012-07-5
In the Matter of the Application of Elio PORTILLO, Petitioner, for leave to commence an action pursuant to Section 5128 of the Insurance Law, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Respondent.
Morrison & Wagner, LLP, by Eric H. Morrison, Esq., New York, for Petitioner. Cruz & Gangi & Associates, by Alex Zeltser, Esq., New York, for Respondent.
Morrison & Wagner, LLP, by Eric H. Morrison, Esq., New York, for Petitioner. Cruz & Gangi & Associates, by Alex Zeltser, Esq., New York, for Respondent.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 6 read on this application by petitioner for leave to commence an action pursuant to Insurance Law section 5218.
Papers Numbered
+-------------------------------------------------+ ¦Order to Show Cause–Affidavits–Exhibits ¦1–4¦ +---------------------------------------------+---¦ ¦Affirmation in Opposition–Affidavits–Exhibits¦5–6¦ +-------------------------------------------------+
The petitioner seeks leave to commence an action against respondent, Motor Vehicle Accident Indemnification Corporation (“MVAIC”), to recover for damages resulting from the hit-and-run.
The petitioner alleges that he was operating a bicycle at approximately 8:30 p.m., on July 1, 2011 at Sutter Avenue and Hemlock Street in Queens County, New York, when he was struck by a vehicle, causing him to sustain injuries requiring medical attention. Petitioner further alleges that after the collision the vehicle continued on without stopping or otherwise identifying itself. The petitioner received treatment at Jamaica Hospital for alleged injuries to his head, neck, left shoulder, left elbow and left knee.
The petitioner also claims to have undergone arthroscopic surgery on his left knee on August 16, 2011. The petitioner contends that all of these injuries and the ensuing treatments were the direct result of the hit-and-run incident on July 1, 2011. The petitioner further asserts that neither he nor any member of his family owned an insured automobile at the time of the accident.
The respondent MVAIC objects to this petition on the ground that petitioner did not comply with the condition precedent for actions pursuant to Insurance Law section 5218 that the petitioner report the accident “within twenty-four hours after the occurrence to a police, peace or judicial officer” (Affirmation in Opposition of Alex Zeltser, Esq. [boldface emphasis deleted] ). Mr. Zeltser's quotation of the statute is selective, not accurate, and, therefore, disingenuous. Contrary to respondent's contention and selective quotation, a petitioner may satisfy the 24–hour notice requirement by supplying notice to the Commissioner of the Department of Motor Vehicles, and not only by supplying notice to “a police, peace or judicial officer” (Insurance Law § 5208[a][2][A] ). Properly completing and timely filing a Report of Motor Vehicle Accident Form (MV–104) with the Commissioner of the Department of Motor Vehicles can satisfy the notice requirement ( see generally, Sitbon v. Unitrin Preferred Ins. Co., 52 AD3d 498, 499 [2nd Dept.2008] ).
In the present case, the petitioner included a copy of an MV–104 with the petition herein as Exhibit B. Petitioner alleges to have filed this MV–104 with the commissioner within 24 hours of the accident. Additionally, petitioner states that a bodily injury claim was presented to MVAIC and assigned claim number 466921, and a Notice of Intention to Make a Claim was served on MVAIC within 90 days of the accident as required by Insurance Law section 5208[a] [2][A].
While the copy of the MV–104 submitted herein by petitioner is dated “7/2/11,” no evidence exists that the MV–104 was actually filed with the commissioner within 24 hours of the alleged accident. The only relevant fact attested to in the MV–104 is that petitioner signed said form at some time on July 2, 2011. The record is devoid of any time-stamp, receipt, or other manner of verification as to when the MV–104 was actually submitted to the commissioner. Indeed, the area at the top of the MV–104 labeled “DMV USE,” where a date stamp would presumably be applied, is blank. Additionally, the petitioner makes no assertion as to how or specifically where the MV–104 was filed.
Since a determination regarding whether petitioner fully complied with the 24–hour notice requirement in this matter requires an assessment of petitioner's credibility, the petition is granted to the extent that an evidentiary hearing shall be held to determine if petitioner did indeed so comply with the 24–hour notice requirement (Pagan v. Motor Vehicle Acc. Indemn. Corp., 82 AD3d 1102, 1103 [2nd Dept.2011] [“(T)he courts have consistently afforded a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator's obtaining a written report.' “]; quoting other cases, citations omitted]; see also, Attaway v. Motor Veh. Acc. Indem. Corp., 35 Misc.3d 1214(A), 2012 WL 1368000, 2012 N.Y. Slip Op 50699(U), slip op at 3 [Sup Ct Bronx County 2012] ).
The respondent MVAIC also objects on the ground that petitioner has not sufficiently established that he is a resident of New York State, as required by Insurance Law section 5202[b]. The petitioner's submissions supply sufficient evidence that petitioner is indeed a resident of the State of New York. Petitioner attests to the fact that he resides in New York State in his supporting affidavit, and a New York address is listed for petitioner in both the MV–104 and the medical records supplied as supporting documentation to this petition.
The establishment of residency is a relatively low bar to clear, as it merely refers to the place where a person maintains a living space at the time, and does not require the more comprehensive showing necessary in establishing a person's legal domicile ( see, Catalanotto v. Palazzolo, 46 Misc.2d 381, 383 [Sup Ct New York County1965] ). Further, respondent has offered no proof to rebut that found in petitioner's submissions.
Accordingly, this matter is set down for a hearing to determine if petitioner complied with the 24–hour notice requirement on August 10, 2012 in IA Part 32, at 10:15 A.M. in Courtroom 140, located at Queens County Supreme Court, 25–10 Court Square, Long Island City, New York 11101.
To avoid a hearing, the parties may furnish the Court with proof of a filed notice to the Commissioner.
The foregoing constitutes the decision, opinion, and order of the Court.