§ 5218 — Procedure for "hit and run" cases

New York § 5218

• Jurisdiction: New York
• Law ISC: Insurance
• Art. 52: Motor Vehicle Accident Indemnification Corporation

Text

§ 5218. Procedure for "hit and run" cases. (a) Any qualified person\nhaving a cause of action for death or personal injury arising out of the\nownership, maintenance or use of a motor vehicle in this state, when the\nidentity of the motor vehicle and of the operator and owner cannot be\nascertained or it is established that the motor vehicle was at the time\nof the accident, in the possession of a person without the owner's\nconsent and that the identity of such person cannot be ascertained may,\nupon notice to the corporation, apply to a court for an order permitting\nan action therefor against the corporation in that court.\n (b) The court may proceed upon the application in a summary manner and\nmay make an order permitting the action when after a hearing it is\nsatisfied that:\n (1) the applicant has complied with the requirements of section five\nthousand two hundred eight of this article;\n (2) the applicant is a qualified person;\n (3) the injured or deceased person was not at the time of the accident\noperating an uninsured motor vehicle or operating a motor vehicle in\nviolation of an order of suspension or revocation;\n (4) the applicant has a cause of action against the operator or owner\nof the motor vehicle;\n (5) all reasonable efforts have been made to ascertain the identity of\nthe motor vehicle and of the owner and operator and either the identity\nof the motor vehicle and the owner and operator cannot be established,\nor the identity of the operator, who was operating the motor vehicle\nwithout the owner's consent, cannot be established; and\n (6) the application is not made by or on behalf of an insurer or\nsurety under circumstances described in paragraph six of subsection (a)\nof section five thousand two hundred eleven of this article.\n (c) In any action in which the plaintiff is a qualified person, for\nthe death of, or bodily injury to, any person arising out of the\nownership, maintenance or use of a motor vehicle in this state and\njudgment is rendered for the defendant on the sole ground that the death\nor personal injury was occasioned by a motor vehicle: (i) the identity\nof which, and of the owner and operator of which, has not been\nestablished, or (ii) which was in the possession of some person other\nthan the owner or his agent without the consent of the owner and the\nidentity of the operator has not been established, that ground shall be\nstated in the judgment. The plaintiff, upon complying with paragraph one\nof subsection (a) of section five thousand two hundred eight of this\narticle, may within three months from the date of the entry of the\njudgment make application to bring an action upon the cause against the\ncorporation in the manner provided in this section.\n (d) In any action commenced in respect of the death or injury of any\nperson arising out of the ownership, maintenance or use of a motor\nvehicle in this state the plaintiff shall be entitled to make the\ncorporation a party defendant if the court has entered the order\nprovided for in subsection (a) of this section.\n (e) The corporation may generally deny the allegations of the\ncomplaint and shall not be required to set forth the facts upon which it\nrelies. It may assert any defense which would have been available to\nthe operator or owner if the action had been brought against them and\nprocess in the action had been duly served within this state upon them.\n (f) (1) The corporation may settle without court approval any claim or\naction if the board, after due deliberation: (i) determines that the\nclaim or action is asserted or brought pursuant to this section; (ii) is\nsatisfied that the settlement is fair; and (iii) approves payment which\nin no event shall exceed the applicable amount specified in section five\nthousand two hundred ten of this article.\n (2) Settlement of claims and actions without court order shall not\napply to settlement of claims or actions by infants or judicially\ndeclared incompetents.\n (g) (1) Any judgment obtained pursuant to this section shall be\nreduced by any amount recovered by the plaintiff as specified in\nparagraph seven of subsection (a) of section five thousand two hundred\neleven of this article. Upon conclusion of all proceedings, including\nappeals and reviews, the court shall order the corporation to pay the\nplaintiff the amount of the judgment or the applicable amount specified\nin subsection (a) of section five thousand two hundred ten of this\narticle, whichever is less.\n (2) Upon payment by the corporation it shall be subrogated to the\ncause of action of the judgment creditor against the operator and owner\nof the motor vehicle by which the accident was occasioned. It may bring\nan action against either or both of such persons for the amount of the\ndamage sustained by the judgment creditor when the identity of either\nbecomes known. It shall be entitled to recover the amount of the damage\nout of any funds which would be payable in respect to the death or\ninjury under any policy of insurance which was in force at the time of\nthe accident. Money collected in excess of all amounts paid by the\ncorporation shall be paid to the judgment creditor.\n