Lesley v Motor Veh. Acc. Indem. Corp.

[*1] Lesley v Motor Veh. Acc. Indem. Corp. 2005 NY Slip Op 51357(U) Decided on August 29, 2005 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 29, 2005
Supreme Court, Kings County

Sharese H. Lesley, Petitioner,

against

Motor Vehicle Accident Indemnification Corporation, Respondent



37994/04

Francois A. Rivera, J.

Petitioner moves pursuant to Insurance Law §5218, for an order permitting the commencement of an action against Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC). Respondent, MVAIC opposes the petition on the grounds that the offending driver is known to petitioner and that the petitioner's motion is untimely.

Petitioner's action is for personal injuries based on the following alleged facts. On November 15, 2001, the petitioner and her sister, Salimah Lesley, ordered a livery cab from the New York Car Service to transport them home from their brother's residence. Sometime between 9:00 and 10:00 p.m., an African American male, in his thirties or early forties arrived in a white Lincoln livery car to transport them. They entered the vehicle on Bambridge Street between Pageant and Malcolm X Boulevard and reached their destination at 2249 Stillwell Avenue in Brooklyn at about 11:00 pm. Petitioner's sister paid the fare. While petitioner was getting out of the car, but before she exited completely, the driver sped away, causing petitioner to fall out of the car. The driver stopped about two blocks from where petitioner had fallen and then left the scene. The police arrived at the scene of the accident and prepared an aided report. Petitioner was taken to Victory Memorial Hospital to be treated for her injuries. A license plate number was allegedly reported by the petitioner or another eyewitness. Car number 44 of the New York Car Service was also reported as the offending vehicle. After investigating the license plate number, petitioner determined that the owner of the alleged offending vehicle was Nain Win Tun (hereinafter Tun), an Asian male.

On November 18, 2003, petitioner commenced an action against Tun by filing a summon and complaint with the King's County Clerk's office. On October 22, 2004, petitioner deposed Tun. Tun testified that since1995 he has been self employed as a livery driver exclusively for the First Corporation Sedan (hereinafter FCS). On the date of petitioner's incident, Tun owned and operated a red Lincoln Town Car in his livery business. According to his arrangement with FCS, the company's dispatcher would communicate assignments to him by a telephone paging system. [*2]The company would collect the fees from the customers, deduct an administration charge of eighteen and one half percent (18 ½ %) and pay him the balance. Tun never worked for New York Car Service and offered vouchers which accounted for his whereabouts during the time of petitioner's accident. The vouchers contained the customer's name, and the time and destination of transport for the relevant period. All the destinations were in Manhattan. After Tun's deposition, petitioner concluded that Tun was not the driver of the offending vehicle and was, therefore, the wrong defendant. On November 19, 2004, petitioner filed this petition to sue MVAIC.

Article 52 of the Insurance Law, also known as the "Motor Vehicle Accident Indemnification Corporation Act", sets the guidelines for proceeding against uninsured motorists. Insurance Law §5208 sets the standard for determining whether an individual is a qualified person for whom protection should be granted. Specifically, under Insurance Law §5208 (a)(3)(B) a qualified person is required to submit a notice of claim to MVAIC within 180 days of disclaimer or denial of insurance coverage (Pomerico v. Elrac Inc., 1 Misc 3d 108(A) [NY Civ. Ct. 2004]).

The legislature's purpose in establishing MVAIC was to afford injured parties the same protection they would have if the tortfeasor were covered by insurance. The legislature enacted theses statutory protections to benefit victims of uninsured accidents and they should be liberally construed to serve rather than defeat those ends (Dixon v. MVAIC, 56 AD2d 650 at 651 [2nd Dept. 1971]; see also Quinones v. MVAIC, 6 Misc 3d 1007(A) [Kings Sup. Ct. 2004]).

Insurance Law § 5218(b) provides that the court may summarily make an order permitting the action against MVAIC when, after a hearing, it is satisfied that: (1) the applicant has complied with the requirements of section five thousand two hundred eight of this article; (2) the applicant is a qualified person; (3) the injured or deceased person was not at the time of the accident operating an uninsured motor vehicle or operating a motor vehicle in violation of an order of suspension or revocation; (4) the applicant has a cause of action against the operator or owner of the motor vehicle; (5) all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle.

Petitioner's pleadings fail to show how she ascertained the license plate number of the offending vehicle and what efforts she made to rule out the New York Car Service as a potential responsible party. Therefore, pursuant to Insurance Law §5218(b), this Court is ordering a hearing to determine whether the petitioner has exhausted her efforts to determine the identity of the owner and operator of the offending vehicle. Inasmuch as the issue of the timeliness of the petition for leave to sue MVAIC is intertwined with the issues to be resolved at the hearing, it is reserved. The parties are ordered to contact the Court to schedule the hearing.

The foregoing constitutes the decision and order of the court. [*3]

______________________

J.S.C.