Simmons v. Motor Vehicle Accident Indemnification Corp.

44 A.D.2d 673, 354 N.Y.S.2d 642, 1974 N.Y. App. Div. LEXIS 5192

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1974
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on or about May 7, 1973, granting petitioners’ application for leave to sue respondent, reversed, on the law and on the facts, and vacated, and the petition dismissed, without costs and without disbursements, and judgment directed in favor of respondent dismissing the petition. The infant petitioner was allegedly struck by a vehicle which he described to police officers as blue with the words “ Buzz A Car ” printed on its side. The aided and accident card prepared by the officer confirms the disclosure of such owner and its address. Before suit may be instituted against respondent, section 618 of the Insurance Law requires the court to be satisfied that the identity of the motor vehicle and the owner and the operator thereof is unknown and unascertainable or that the identity of the operator is unknown and it is established that the vehicle was operated without the consent and permission of the owner (Cudahy v. MVAIC, 36 A D 2d 717.) All reasonable efforts to obtain such information must be made before resort may be had to the relief provided for in said section. (Matter of O'Rourke, 29 A D 2d 938.) Despite the fact that petitioners were armed with a description of the vehicle and the name of the organization owning or licensing same, they made no effort, through disclosure or otherwise, to ascertain the identity of the “ hit and run ” vehicle and its owner and operator. Such failure precludes them from obtaining the permission sought. Concur — McGivem, P. J., Markewich, Murphy and Lane, JJ.; Kupferman, J., dissents in the following memorandum: I dissent and would affirm the determination of the Trial Judge. The procedure required in a "hit and run” case, pursuant to the Accident Indemnification Law (Insurance Law, § 618, subd. [a], par. [5]), is that “all reasonable efforts” (italics added) are to be made “ to ascertain the identity of the motor vehicle and of the owner and operator thereof ” . This obviously is to insure the bona fldes of the situation. (See Matter of Wallace v. MVAIC, 25 N Y 2d 384, 388.) In this matter, the petitioner described to the police officers the vehicle as being blue with the words “Buzz A Car” printed on its side. The detective who testified for the petitioner stated that he was a patrolman at the time of the accident assigned to radio patrol. He further stated, as to “Buzz A Car”, that it was a “gypsy cab type vehicle” and .they were “all over Jamaica”. Further, he had filled out a UF-61, which is criminal complaint, and it was referred to the detectives, but they were not able to ascertain the owner of the vehicle that struck the petitioner. Under the circumstances, it must be said that the necessary reasonable efforts were made, and that the determination of the trial court should be affirmed.