IN RE: the Application of Manuel MARTINEZ-CARMONA (2020)

By order to show cause and petition, filed on February 5, 2020, petitioner Manuel Martinez-Carmona (hereinafter petitioner or Carmona), seeks an order allowing him to bring a direct action against the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) pursuant to Insurance Law § 5218. The petition is opposed by MVAIC.

BACKGROUND

On February 5, 2020, Carmona commenced the instant special proceeding by electronically filing an order to show cause and petition with annexed exhibits (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). The commencement papers alleges the following salient facts. On November 30, 2018, at approximately 10:40 p.m., Carmona was a pedestrian  ¹ at Belmont Avenue and Atkins Avenue in Brooklyn, when he was struck by a motor vehicle (hereinafter the subject accident).

The petition makes reference to, among other things, annexed copies of a police accident report and a letter from Sera Harbor-Red Insurance Company denying coverage. According to the police accident report, the operator of the vehicle that struck the petitioner was Mohammed Marciano (hereinafter Marciano). Petitioner later learned that Marciano was not covered by insurance at the time of the subject accident. On December 5, 2018, Carmona served a notice of intention to make a claim on MVAIC. Carmona is claiming that neither he nor his counsel have been able to confirm any insurance information for the vehicle driven by Marciano.

MOTION PAPERS

The petitioner's papers consist of an order to show cause and petition, an affirmation of counsel, and five annexed exhibits labeled A though E. Exhibit A contains an uncertified police report of the subject accident and an affidavit from a paralegal of petitioner's counsel. The paralegal's affidavit attests to an unsuccessful internet search effort to obtain a certified copy of the police report. Exhibit B is a copy of a letter from DMA Claims Services advising the petitioner that an insurance policy purportedly covering Bradley Mohammed was not in effect at the time of the subject accident. Exhibit C is described as the negative results of an internet search for Mohammed Marciano. Exhibit D is a copy of a letter sent by petitioner's counsel to the Texas Department of Motor Vehicles seeking motor vehicle insurance information pertaining to Mohammed Marciano. Exhibit E is a copy of the Notice of Intention to make a claim against MVAIC submitted by the petitioner.

MVAIC's opposition papers consist of an affirmation by counsel and two annexed exhibits labeled A and B. Exhibit A is an exact copy of the police accident report of the subject accident that is annexed as exhibit A to the petitioner's moving papers. Exhibit B is an exact copy of the Notice of Intention to make a claim against MVAIC that is annexed as exhibit E the petitioner's moving papers.

LAW AND APPLICATION

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(a) sets forth 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 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.

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 the vehicle was used without the owner's consent by an unknown person (Quiridumbay v. Motor Veh. Acc. Indem. Corp., 176 AD3d 717, 718 [2nd Dept 2019]). MVAIC contends that petitioner did not demonstrate that she is a qualified person pursuant to Article 52 of the Insurance Law because the identity of the owner and operator of the vehicle involved in his accident is known.

Petitioner contends that although he knows the identity of the owner and operator of the vehicles involved in the accident, since he has determined that the individual is uninsured, he should be permitted to bring a direct action against MVAIC.

Petitioner's motion papers conclusively established that the underlying incident was not a hit and run accident as defined by Insurance Law § 5218. The identity of the owner and operator is known. Accordingly, there is no basis for permitting a direct action against MVAIC (see Rogers v. Motor Vehicle Accident Indemnification Corporation, 300 AD2d 1000 [4th Dept 2002]; see also Villanueva v. Muniz, 136 AD2d 546 [2nd Dept 1988]).

Petitioner must bring a direct action against the uninsured motorist. Depending on what happens thereafter, petitioner may be able to bring MVAIC into the action. For example, Insurance Law § 5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist (see Archer v. Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 9 [2nd Dept 2014]). MVAIC may do so on its own or pursuant to a motion to compel brought by the qualified injured plaintiff (see Naula v. Dela Puente, 48 AD3d 434 [2nd Dept 2008] citing Viuker v. Allstate Insurance Co., 70 AD2d 295 [2nd Dept.1979]). Or the petitioner may pursue and obtain a judgment against the uninsured motorist and seek recovery from MVAIC pursuant to Insurance Law § 5210 (see Baker v. Motor Veh. Acc. Indem. Corp., 161 AD3d 1070, 1072 [2nd Dept 2018]). In either example, however, the relevant statute contemplates that the action has already been commenced against the offending motorist. Neither Insurance Law §§ 5209 or 5210 contemplates or authorizes a direct action against MVAIC.

CONCLUSION

Petitioner's application for an order pursuant to Insurance Law § 5218 allowing the petitioner to bring a direct action against the Motor Vehicle Accident Indemnification Corporation is denied and the matter is dismissed.

The foregoing constitutes the decision and order of this Court.

FOOTNOTES

1.   It is noted that the police accident report states that the petitioner was riding a bicycle at the time of the subject accident and the petition states that the petitioner was a pedestrian.

Francois A. Rivera, J.