In this proceeding the petitioner seeks an order, pursuant to article 52 of the Insurance Law, permitting him to bring an action against defendant Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC).
At the hearing conducted before this court respondent conceded that petitioner was injured as a result of an accident involving a hit-and-run motorist and that petitioner is otherwise “qualified”, within the meaning of the Insurance Law, to bring an action against MVAIC. However, respondent argued that petitioner should be precluded from bringing said action because:
(1) he failed to comply with that portion of section 5208 (a) (2) (A) of the Insurance Law, which requires that the accident be reported to the police within 24 hours after the occurrence; and (2) he failed to comply with section 5218 (b) (5) which requires that petitioner make “all reasonable efforts to ascertain the identity of the motor vehicle and of its owner and operator.”Respondent argued further that in order for petitioner to satisfy the “reasonable efforts” requirement and obtain an order granting permission to proceed against MVAIC, petitioner must first exhaust his remedy and conclude a proceeding against the suspect tortfeasor which is pending in the Supreme Court, Bronx County. Thus, the court herein is also presented with ancillary issues which involve the jurisdiction and power of the Civil Court to issue an order joining and/or consolidating a proceeding in the Civil Court with a proceeding in the Supreme Court.
The relevant injury facts
At 7:20 P.M. on July 24, 1998 in the vicinity of East Tremont Avenue and Crotona Parkway in the County of Bronx the petitioner, while operating a bicycle, was injured when he was struck by a vehicle operated by an unknown motorist who fled the scene. After the police arrived at the scene of the accident, three witnesses were allegedly present and at least two of them provided inconsistent descriptions of the vehicle and its license plate. According to the petitioner, two of the three witnesses were never identified, and one of the two unidentified witnesses is alleged to have said that he chased a “white Chevrolet with New York plate number T218086C.” The police report identified only one witness, JO, and the report contained no mention of a Chevrolet or the alleged chase of the vehicle.
At the hearing, other than to identify the vehicle as white, the petitioner was unable, from personal knowledge, to provide any information which would assist in the identification of the vehicle or its owner and operator.
Neither the reporting police officer nor the witness JO was available to testify at the hearing. In addition, neither the petitioner nor the respondent offered any evidence concerning the source of the information contained in the police report, other than that which may be inferred from the document itself.
Petitioner, however, did subpoena one EO, who admitted that on July 24, 1998, he was the owner of a white 1990 Chevrolet vehicle bearing license plate number T218086C, which he used as a taxi. He claimed, however, that he was not involved in an accident on July 24, 1998 and stated that he used this vehicle on that date to travel to New Jersey where he remained from at least 1:00 P.M. to 7:00 P.M. at Newark Airport (waiting for an uncle who never arrived) and thereafter to a girlfriend’s house in Jersey City where he remained until 11:00 P.M. Although this inadmissible evidence directly implicates the witness EO as the owner of the vehicle which struck petitioner and fled the scene of the accident, it is rendered even less reliable as a result of the perhaps disingenuous, but otherwise unchallenged, denial by EO that he or his vehicle was involved in the accident.
The witness EO said that he first learned of the accident when he received a letter and “other papers” from petitioner’s attorney. Although he could not identify the other papers as a summons and complaint, it was established that a judicial proceeding is presently pending in the Supreme Court, Bronx County, under index number 66xx/XX in which the petitioner is named as plaintiff against EO as a defendant, arising out of this accident.
I. Section 5208 (a) (2) (A): Notice to Police
To Be Cont….
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