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Cardona v. Martinez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 9, 2009

RICARDO CARDONA, PLAINTIFF-RESPONDENT,
v.
OLGA M. MARTINEZ, DEFENDANT-RESPONDENT, "JOHN DOE," ETC., DEFENDANT, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered December 17, 2007, which, in an action for personal injuries sustained when plaintiff pedestrian was struck by a motor vehicle that left the scene, denied the motion of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) to dismiss the complaint as against it, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

104760/05

Despite the procedural irregularities cited by MVAIC, the court properly found that plaintiff was a "qualified person" under the Insurance Law. Insurance Law § 5218(b) provides that the court may permit an action against MVAIC upon satisfaction of certain enumerated conditions. Here, those conditions have effectively been demonstrated and there was no need for a hearing (see e.g. Milstein v Clark, 32 AD2d 935 [1969]). Plaintiff established that he cannot ascertain the identity of the owner or operator of the offending vehicle. MVAIC's argument that there has been no judicial determination that defendant Martinez was not involved in the accident does not warrant a different finding (see Steele v Motor Veh. Acc. Indem. Corp., 39 AD3d 78, 83 [2007], appeal dismissed 9 NY3d 989 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090409

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