Levy v. Motor Vehicle Accident Indemnification Corp.

81 A.D.2d 816, 439 N.Y.S.2d 142, 1981 N.Y. App. Div. LEXIS 11468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1981
• Status: Published

Opinions

— Order, Supreme Court, New York County, entered June 3, 1980, reversed, on the law, and the petition of petitioner-respondent to sue respondent-appellant MVAIC dismissed, without costs. The infant petitioner was injured in a hit-and-run accident while, with the owner’s permission, she was operating a moped. That vehicle is a class B limited use motorcycle (Vehicle and Traffic Law, § 121-b), requiring both registration and insurance (Vehicle and Traffic Law, § 2265, subd 3), and the operator thereof to be licensed (Vehicle and Traffic Law, §2266, subd 3). Special Term, finding that petitioner, “only 14 at the time of the occurrence reasonably believed that the vehicle did not carry insurance and that none was required”, held petitioner to be a “qualified person” under the MVAIC statute, and granted the petition. Cited as authority for the proposition that being “an innocent victim” provides her with such status is Matter of Bullard (MVAIC) (45 Misc 2d 816), wherein the husband driver of an uninsured vehicle was not found to be a “qualified person” while the passenger wife was so found to be. But Bullard is not dispositive; both it, and Matter of Nagle (MVAIC) (22 NY2d 165), speak only of “innocent victim”, without addressing the impact of section 618 of the Insurance Law on the fact pattern here found. “Innocence” is not the only requirement for one to be a “qualified person” (Insurance Law, §618, subd [a], par [2]); it is also required (Insurance Law, §618, subd [a], par [3]) that the “injured *** person was not at the time of the accident operating an uninsured motor vehicle”. Petitioner, the driver, could therefore not have been a “qualified person”, and the petition should have been dismissed. Concur — Birns, J. P., Sullivan and Markewich, JJ.