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

[*1] Matter of Thakuri v Motor Veh. Acc. Indem. Corp. 2010 NY Slip Op 52145(U) [29 Misc 3d 1235(A)] Decided on November 18, 2010 Supreme Court, New York County Rakower, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2010
Supreme Court, New York County

In the Matter of the Application of Rachhya Thakuri, Petitioner,

against

The Motor Vehicle Accident Indemnification Corporation, Respondent.



112491/10



The motion is unopposed, Tara Ulezalka is the attorney for the petitioner.

Eileen A. Rakower, J.

Petitioner makes this application, by Order to Show Cause, for an Order permitting her to bring an action for personal injuries sustained as the result of being struck, while riding her bicycle, by a bus which left the scene of the accident. The accident occurred on West 57th Street in the County and State of New York on March 20, 2010. As a result of the accident, petitioner alleges that she sustained a "displaced fracture of the inferior aspect of the calcaneus of the left ankle and abrasion to the left ankle." Petitioner now moves for an order permitting her to commence an action against respondent Motor Vehicle Accident Indemnification Corporation ("MVAIC"). MVAIC does not oppose.

In support of her application, petitioner submits: her affidavit; a copy of the police accident report, a copy of her medical records, a copy of a Notice of Intention to Make Claim Form; a copy of petitioner's pay stub; and a Household Affidavit.

Insurance Law §5218, Procedure for "hit and run" cases, states, in relevant part: [*2]

(a) Any qualified person having a cause of action for . . . personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained . . . may, upon notice to the corporation, apply to the court for an order permitting an action therefor against the corporation in court.

(b) The court may proceed upon the application in a summary manner and may make an order permitting the action when after a hearing it is satisfied that:

(1) the applicant has complied with the requirements of section [5208] 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 without the owner's consent, cannot be established; and

(6) the application is not made by or on behalf of an insurer or surety . . .

Insurance Law §5208 states, in relevant part:

(a) The protection provided by the corporation on account of motor vehicle accidents caused by financially irresponsible motorists shall be available to:

(2)(A) Any qualified person having cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:

(i) the person has the cause of action for damages arising out of theaccident and setting forth the supporting facts,

(ii) the cause of action is against a person whose identity is unascertainable; [*3]and

(iii) the person is making a claim for those damages.

Petitioner has shown that she obtained a police report within twenty-four hours of her accident, and that she filed a Notice of Intention to Make Claim within 90 days, as required by Section 5208 of the Insurance Law.

Insurance Law §5202(b) states, in relevant part:

"Qualified person" means (I) a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative . . .

On her police accident report, petitioner lists her address as "518 North 5 Street Harrison NJ 07029." On her Notice of Intention to Make a Claim form, pay stub, household affidavit; and hospital records, petitioner lists her address as 17 Davis Street Harrison, NJ. The court in Simon v. Motor Vehicle Acc Indemnification Corp., 83 AD2d 803[1st Dept. 1981 found:

The record before this Court demonstrates that claimant is not a qualified person. The no-fault statute in the State of New York applies to commercial vehicles, while the statute in the State of New Jersey only applies to passenger cars. Coverage for injuries sustained while being struck by a commercial van are not covered under New Jersey law.(where a New Jersey resident was struck by a commercial van that left the scene of the accident.)

In the police report, the offending vehicle is described as an "unknown

bus." In her MVAIC paperwork, petitioner checks the option for "A Bus or School Bus," next to "the type of vehicle" that hit her. There is no evidence that the bus involved in the accident was not a commercial vehicle. Here, as in Simon, petitioner has failed to show that New Jersey would afford reciprocal coverage to a New York driver and, thus, is not considered a "qualified person" for purposes of commencing a lawsuit against MVAIC. [*4]

Wherefore it is hereby

ORDERED that the petition is denied.

This constitutes the order and decision of the court. All other relief requested is denied.

Dated: November 18, 2010______________________________

EILEEN A. RAKOWER, J. S.C.