Edwards v. Motor Vehicle Accident Indemnification Corp.

40 A.D.2d 695, 336 N.Y.S.2d 309, 1972 N.Y. App. Div. LEXIS 3758

Opinion

In a proceeding pursuant to section 618 of the Insurance Law for permission to bring an action against appellant, the appeal is from an order of the Supreme Court, Kings County, dated September 1, 1971, which granted the application. Order reversed, on the law and the facts, without costs, and application denied. In our opinion the finding that petitioner was the victim of a hit-and-run accident was contrary to the weight of the credible evidence. The trial court should not have disregarded (1) the testimony of the police officer (who had interviewed petitioner near the scene of the alleged accident) that petitioner told him she had tripped and fallen and that he observed that she smelled of alcohol and (2) that portion of the hospital record admitted into evidence which, under “History”, stated': “Alcoholic, intoxication.” Petitioner’s testimony as to the happening of the accident was not entitled to credence. Munder, Latham and Shapiro, J J., concur; Rabin, P. J., and Hopkins, J., dissent and vote to affirm.