Carter v. Motor Vehicle Accident Indemnification Corp.

Appellate Division of the Supreme Court of New York

Carter v. Motor Vehicle Accident Indemnification Corp.

49 A.D.3d 1169, 852 N.Y.2d 915

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 14, 2008

StatusPublished

This text of 49 A.D.3d 1169 (Carter v. Motor Vehicle Accident Indemnification Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. Motor Vehicle Accident Indemnification Corp., 49 A.D.3d 1169, 852 N.Y.2d 915 (N.Y. Ct. App. 2008).

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Opinion

[1170]*1170Memorandum: Petitioner, allegedly the victim of a hit-and-run accident, appeals from an order denying his application for an order permitting him to commence an action against respondent pursuant to Insurance Law § 5218. We agree with petitioner that, by the affidavit of his attorney, he established the applicability of the presumption that he delivered the requisite notice of claim to respondent by mail (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; see generally Insurance Law §§ 5208, 5218 [b] [1]), and that respondent failed to rebut that presumption (see Nassau Ins. Co., 46 NY2d at 829-830). We further agree with petitioner that, on the record before us, Supreme Court erred in denying his application without conducting a hearing pursuant to Insurance Law § 5218 (b) to enable him to establish that he made “all reasonable efforts ... to ascertain the identity of the motor vehicle and of the owner and operator” (§ 5218 [b] [5]; see Matter of O’Rourke v Motor Veh. Acc. Indem. Corp., 29 AD2d 938 [1968]; Matter of Malitz v Motor Veh. Acc. Indem. Corp., 17 AD2d 108 [1962]). We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to Insurance Law § 5218 (b) (5). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.

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[1170]*1170Memorandum: Petitioner, allegedly the victim of a hit-and-run accident, appeals from an order denying his application for an order permitting him to commence an action against respondent pursuant to Insurance Law § 5218. We agree with petitioner that, by the affidavit of his attorney, he established the applicability of the presumption that he delivered the requisite notice of claim to respondent by mail (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; see generally Insurance Law §§ 5208, 5218 [b] [1]), and that respondent failed to rebut that presumption (see Nassau Ins. Co., 46 NY2d at 829-830). We further agree with petitioner that, on the record before us, Supreme Court erred in denying his application without conducting a hearing pursuant to Insurance Law § 5218 (b) to enable him to establish that he made “all reasonable efforts ... to ascertain the identity of the motor vehicle and of the owner and operator” (§ 5218 [b] [5]; see Matter of O’Rourke v Motor Veh. Acc. Indem. Corp., 29 AD2d 938 [1968]; Matter of Malitz v Motor Veh. Acc. Indem. Corp., 17 AD2d 108 [1962]). We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to Insurance Law § 5218 (b) (5). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.

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Bluebook (online)

49 A.D.3d 1169, 852 N.Y.2d 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-motor-vehicle-accident-indemnification-corp-nyappdiv-2008.

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