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MATTER JAMES O'ROURKE v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (04/25/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


April 25, 1968

IN THE MATTER OF JAMES O'ROURKE, RESPONDENT,
v.
MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, APPELLANT

Concur -- Boetin, P. J., Eager, Capozzoli, McGivern and Rabin, JJ.

Order, entered November 30, 1967, unanimously reversed, on the law, without costs and disbursements, and matter remanded to Special Term for a hearing upon the issues of whether the petitioner is a "qualified person" under section 618 of the Insurance Law and whether "all reasonable efforts" were made to ascertain the identity of the "hit and run" vehicle and the owner and operator thereof as required by that section. The granting of permission to bring an action against MVAIC is conditioned upon the court being "satisfied, upon the hearing of the application", that the applicant is such qualified person and has made such efforts. (Insurance Law, ยง 618, subd. [a]). In the circumstances here, the conclusory allegations that petitioner "is a resident of New York, New York" and a "qualified person as defined by Section 601-b of the Insurance Law" are not a satisfactory showing of residential qualifications. (See Matter of Bonavisa v. MVAIC, 21 Misc. 2d 963.) Furthermore, there appears to exist an issue of whether petitioner did make all reasonable efforts to ascertain the identity of the "hit and run" vehicle and its owner and operator. Under the circumstances, the parties should be afforded the opportunity of a hearing upon the disputed issues. (See Matter of Malitz v. MVAIC, 17 A.D.2d 108; Matter of Woodard v. MVAIC, 23 A.D.2d 215.)

19680425

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