Thomas v Motor Veh. Acc. Indem. Corp.

[*1] Thomas v Motor Veh. Acc. Indem. Corp. 2018 NY Slip Op 50716(U) Decided on May 22, 2018 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570782/17

Louise Thomas, Petitioner-Respondent,

against

Motor Vehicle Accident Indemnification Corporation, Respondent-Appellant.

Respondent (MVAIC) appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), dated November 2, 2016, which granted the petition for leave to commence an action against MVAIC.

Per Curiam.

Order (Paul A. Goetz, J.), dated November 2, 2016, reversed, the petition denied and the proceeding dismissed.

Petitioner's application for leave to sue MVAIC pursuant to Insurance Law § 5218 should have been denied, since she failed to sustain her burden of demonstrating that the subject accident was one in which the identity of the owner and operator of the subject motor vehicle was unknown or not readily ascertainable through reasonable effort (see Insurance Law § 5218[b][5]). In this regard, the police accident report identifies the suspect vehicle by license plate number and indicates it is owned by Eagle Auto Services, Inc. (see Matter of Yi Song He v Motor Veh. Acc. Indem. Corp., 128 AD3d 525 [2015]; Matter of Simmons v Motor Veh. Acc. Indem. Corp., 44 AD2d 673 [1974]). Civil Court erred in granting petitioner's application on the ground that the offending vehicle was uninsured due to a disclaimer in coverage (see Matter of Brandon v Motor Veh. Acc. Indem. Corp., 233 AD2d 604 [1996]; Cudahy v Motor Veh. Acc. Indemn. Corp., 36 AD2d 717 [1971]). Where, as here, the offending vehicle is allegedly uninsured, petitioner "is required to exhaust h[er] remedies" against the owner/operator of the offending vehicle in a personal injury action before seeking relief from MVAIC (Matter of Acosta-Collado v Motor Veh. Acc. Indemn. Corp., 103 AD3d 714, 716 [2013][citations omitted]; see Insurance Law § 5210).

Since petitioner alleges in her appellate brief that she obtained a default judgment against the owner of the offending vehicle after the order on appeal was entered, our disposition is without prejudice to petitioner's right, if so advised, to now seek appropriate relief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 22, 2018