HINTON v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION

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Supreme Court, Appellate Division, First Department, New York.

Leonard HINTON, Plaintiff-Respondent, v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Defendant-Appellant.

Decided: May 09, 2002

NARDELLI, J.P., SULLIVAN, WALLACH, RUBIN and FRIEDMAN, JJ. Edward D. Tantleff, for Plaintiff-Respondent. Joseph A. Materazo, for Defendant-Appellant.

Order, Supreme Court, New York County (Milton Tingling, J.), entered on or about August 16, 2001, granting plaintiff's motion for summary judgment declaring that defendant is to provide coverage and to entertain plaintiff's personal injury claims and granting plaintiff leave to amend his summons and complaint, unanimously affirmed, without costs.

By order dated March 6, 1998, it was determined that the Delaware issued insurance policy covering the vehicle leased by plaintiff, which did not provide uninsured motorist coverage, would not be deemed to include uninsured motorist coverage pursuant to Insurance Law § 5107 since the vehicle was not principally garaged or used in New York. This determination, which, under the circumstances of this case, is completely incompatible with the relief defendant presently seeks, was unappealed by defendant and we decline defendant's invitation now, four years hence, when the action has long since been dismissed against the issuer of the Delaware policy, in essence to review its propriety.   We note, in any event, that defendant has afforded neither legal nor factual basis for its appellate claim that plaintiff is not a “qualified person” within the meaning of Insurance Law § 5202(b) entitled to protection from defendant pursuant to Insurance Law § 5302.