CARDONA v. The Motor Vehicle Accident Indemnification Corporation, Defendant-Appellant. (2009)

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.

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 A.D.2d 935, 303 N.Y.S.2d 29 [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 A.D.3d 78, 83, 829 N.Y.S.2d 467 [2007], appeal dismissed 9 N.Y.3d 989, 848 N.Y.S.2d 27, 878 N.E.2d 611 [2007] ).