Matter of Joseph v Motor Veh. Acc. Indem. Corp.

Matter of Joseph v Motor Veh. Acc. Indem. Corp. 2013 NY Slip Op 07734 Decided on November 20, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
DANIEL D. ANGIOLILLO
THOMAS A. DICKERSON
JEFFREY A. COHEN, JJ.
2012-10385
(Index No. 1977/12)

[*1]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.


DECISION & ORDER

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 AD3d 806; Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714, 716; Matter of Frankl v Motor Veh. Acc. Indem. Corp., 53 AD2d 614, 614; Hauswirth v American Home Assur. Co., 244 AD2d 528, 529).

The appellant's remaining contention is not properly before this Court (see Hauswirth v American Home Assur. Co., 244 AD2d at 529).

Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding.
DILLON, J.P., ANGIOLILLO, DICKERSON and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court