Matter of Kenion v Motor Veh. Acc. Indem. Corp.
Annotate this CaseDecided on November 27, 2019
Supreme Court, Kings County
In the Matter of the Application of Yolanda Kenion, Petitioner, For leave to commence an action pursuant to Section 5218 of the Insurance Law,
against
The Motor Vehicle Accident Indemnification Corporation, Respondent.
519412/2019
Attorney for Petitioner:
Julia Belitsky, Esq.
Boyko & Associates, P.C.
2021 Nostrand Avenue
Brooklyn, New York 11210
(718) 434-1700
Francois A. Rivera, J.
By an order to show cause and petition, filed on September 3, 2019, Yolanda Kenion (hereinafter Kenion or petitioner) commenced the instant special proceeding seeking an order allowing her to bring a direct action against the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) pursuant to Insurance Law § 5218. MVAIC neither appeared nor responded to the petition.
Order to show Cause
Petition
Affidavit of Petitioner
Exhibit A - C
[*2]MOTION PAPERS
The petitioner's papers consist of the order to show cause, the petition, an affidavit of the petitioner and three annexed exhibits labeled A through C. Exhibit A is a New York State Department of Motor Vehicles (hereinafter NYS DMV) police accident report (MV-104) regarding the petitioner's automobile accident. Exhibit B is a letter from MVAIC to the petitioner dated March 1, 2018, advising her that she has met the criteria for a "covered person". Exhibit C is a copy of a letter with enclosures from petitioner's counsel to the claims department of MVAIC dated April 2, 2018, giving notice of petitioner's intention to file a claim. BACKGROUND
The order to show cause, petition and supporting documents (hereinafter the commencement papers) allege, among other things, the following facts. On November 7, 2017, at around 7:00 P.M., petitioner was lawfully and rightfully walking across the intersection of Rutland Road and East 95th Street, Brooklyn, New York, when she was suddenly struck by a motor vehicle. The operator of the offending motor vehicle did not stop after striking her and consequently was never identified. The collision caused the petitioner to sustain serious physical injury requiring her to, among other things, undergo surgery to her right knee. A police report of this incident was prepared and filed with the NYS DMV. Within 90 days of the accident, a Notice of Intention to Make Claim was served upon and against MVAIC. By letter dated March 1, 2018, MVAIC informed the petitioner that it had determined her to be a "qualified person."
LAW AND APPLICATION
The New York State Legislature created MVAIC to "provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle" (Englington Medical, P.C. v. Motor Vehicle Acc. Indem. Corp., 81 AD3d 223 [2nd Dept 2011] citing Insurance Law § 5201).
The Legislature's purpose in establishing MVAIC was to afford injured parties the same protection that they would have had the tortfeasor involved in a motor vehicle accident been covered by insurance (Englington Medical, P.C., 81 AD3d 223, citing Morisi v Motor Veh. Acc. Indem. Corp., 19 AD2d 727 [2nd Dept 1963]).
Insurance Law § 5201 (b) (2) provides that the purpose of MVAIC is to provide innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, through no fault of their own, by unidentified motor vehicles which leave the scene of the accident.
Insurance Law § 5218 permits suit directly against MVAIC where a person has been injured by an automobile and cannot establish the identity of the owner and operator or that the vehicle used was without the owner's consent by an unknown person (Brandon v Motor Veh. Acc. Indem. Corp., 233 AD2d 604 [3rd Dept 1996]).
Insurance Law § 5218 (a) sets forth in pertinent part the procedure for commencing an action against MVAIC in hit and run cases:
Any qualified person having a cause of action for death or 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 or it is established that the motor vehicle was at the time of the accident, in the possession of the person without the owner's consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.Insurance Law § 5202 (b) requires that a petitioner seeking leave of court to commence an action against MVAIC has the initial burden of demonstrating that he or she is a qualified person within the meaning of MVAIC definitions statute and by making an evidentiary showing that he or she has satisfied certain other statutory requirements.
This Court has held that the statutory provisions creating and regulating MVAIC should be liberally construed to serve those ends (Englington Medical, P.C., 81 AD3d 223, citing Matter of Dixon, 56 AD2d at 651). A notice of petition and petition seeking leave to sue MVAIC is a special proceeding. In a special proceeding, generally, if no triable issues of fact are raised, the court is empowered to make a summary determination (see CPLR 409 [b]). However, if triable issues of fact are raised, an evidentiary hearing must be held (see CPLR 410) (Hernandez v. MVAIC, 120 AD3d 1347 [2nd Dept 2014]).
The petitioner met the statutory requirements to show that she is a qualified person within the meaning of Insurance Law § 5202 (b).
Furthermore, correspondence from MVAIC has demonstrated that it determined the petitioner to be qualified to be a "covered person." Although duly served with the notice of petition and petition, MVAIC did not appear or submit opposition to the petition. Consequently, MVAIC did not raise any triable issues of fact.
CONCLUSION
The order to show cause and petition of Yolanda Kenion for an order allowing her to bring a direct action against the Motor Vehicle Accident Indemnification Corporation pursuant to Insurance Law § 5218 is granted.
The foregoing constitutes the decision and order of this Court.
Enter:
_____________________________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
