2006 New York Code - Procedure For "hit And Run" Cases.

 
    §  5218.  Procedure  for "hit and run" cases. (a) 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  a  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.
    (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 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
  without the owner's consent, cannot be established; and
    (6)  the  application  is  not  made  by or on behalf of an insurer or
  surety under circumstances described in paragraph six of subsection  (a)
  of section five thousand two hundred eleven of this article.
    (c)  In  any  action in which the plaintiff is a qualified person, for
  the death of, or bodily  injury  to,  any  person  arising  out  of  the
  ownership,  maintenance  or  use  of  a  motor vehicle in this state and
  judgment is rendered for the defendant on the sole ground that the death
  or personal injury was occasioned by a motor vehicle: (i)  the  identity
  of  which,  and  of  the  owner  and  operator  of  which,  has not been
  established, or (ii) which was in the possession of  some  person  other
  than  the  owner  or  his agent without the consent of the owner and the
  identity of the operator has not been established, that ground shall  be
  stated in the judgment. The plaintiff, upon complying with paragraph one
  of  subsection  (a)  of  section five thousand two hundred eight of this
  article, may within three months from the  date  of  the  entry  of  the
  judgment  make application to bring an action upon the cause against the
  corporation in the manner provided in this section.
    (d) In any action commenced in respect of the death or injury  of  any
  person  arising  out  of  the  ownership,  maintenance or use of a motor
  vehicle in this state the  plaintiff  shall  be  entitled  to  make  the
  corporation  a  party  defendant  if  the  court  has  entered the order
  provided for in subsection (a) of this section.
    (e)  The  corporation  may  generally  deny  the  allegations  of  the
  complaint and shall not be required to set forth the facts upon which it
  relies.    It  may assert any defense which would have been available to
  the operator or owner if the action had been brought  against  them  and
  process in the action had been duly served within this state upon them.
    (f) (1) The corporation may settle without court approval any claim or
  action  if  the  board,  after due deliberation: (i) determines that the
  claim or action is asserted or brought pursuant to this section; (ii) is
  satisfied that the settlement is fair; and (iii) approves payment  which
  in no event shall exceed the applicable amount specified in section five
  thousand two hundred ten of this article.
    (2)  Settlement  of  claims  and actions without court order shall not
  apply to settlement of  claims  or  actions  by  infants  or  judicially
  declared incompetents.
    (g)  (1)  Any  judgment  obtained  pursuant  to  this section shall be
  reduced by any  amount  recovered  by  the  plaintiff  as  specified  in
  paragraph  seven  of subsection (a) of section five thousand two hundred
  eleven of this article. Upon conclusion of  all  proceedings,  including
  appeals  and  reviews,  the court shall order the corporation to pay the
  plaintiff the amount of the judgment or the applicable amount  specified
  in  subsection  (a)  of  section  five  thousand two hundred ten of this
  article, whichever is less.
    (2) Upon payment by the corporation it  shall  be  subrogated  to  the
  cause  of action of the judgment creditor against the operator and owner
  of the motor vehicle by which the accident was occasioned. It may  bring
  an  action  against either or both of such persons for the amount of the
  damage sustained by the judgment creditor when the  identity  of  either
  becomes known.  It shall be entitled to recover the amount of the damage
  out  of  any  funds  which  would  be payable in respect to the death or
  injury under any policy of insurance which was in force at the  time  of
  the  accident.  Money  collected  in  excess  of all amounts paid by the
  corporation shall be paid to the judgment creditor.