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In this proceeding the petitioner seeks an order

The court finds and concludes that there has been compliance with the requirements of section 5208 (a) (2) (A) of the Insurance Law which requires notice to the police within 24 hours of the occurrence. Obviously, since the police were called to the scene of the accident shortly after its occurrence and made a report of the investigation, the court concludes that petitioner was not required to make any further report to the police and the court determines that the requirements of section 5208 (a) (2) (A) have been totally fulfilled.

II. Section 5218 (b) (5): Reasonable Efforts

Section 5218 of the Insurance Law provides in relevant part that:

“(a) Any qualified person having a cause of action for death or personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was at the time of the accident, in the possession of a person without the owner’s consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.

“(b) The court may proceed upon the application in a summary manner and may make an order permitting the action when after a hearing it is satisfied that * * *

“(5) all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established”.

Upon the admissible injury evidence presented herein, the court concludes that there is a significant possibility that a proceeding against EO will be unsuccessful. However, at the hearing, respondent, citing Matter of Ruiz v MVAIC (19 AD2d 832 [2d Dept 1963]) and Byrd v Johnson (60 AD2d 900 [2d Dept 1978]) and their progeny, argued further that, even if the court is satisfied that petitioner has otherwise complied with subdivision (b) of section 5218 of the Insurance Law, petitioner, in order to satisfy the “reasonable efforts” requirement of subdivision (b) (5), must first exhaust his remedy and conclude a subdivision (c) action against the suspect owner EO before seeking any relief against MVAIC. This issue requires further analysis and discussion as well as a consideration of the intent of the Legislature and the purposes of the Motor Vehicle Accident Indemnification Corporation Act as now embodied in article 52 of the Insurance Law.

III. Legislative Intent and Statutory Construction

It is axiomatic that in order to fulfill the mandates of the Motor Vehicle Accident Indemnification Corporation Act and to provide the indemnification which the Legislature expressly sought to be given to qualified persons, courts are required to provide a construction which enhances rather than defeats the Act’s purposes. Therefore, giving primary consideration to the rules of construction and the declared concern and mandate of the Legislature, it is abundantly clear that this court must employ a construction of section 5218 which would both expedite and facilitate, not impede or delay or make more costly, the ultimate ability of a victim of a hit-and-run driver to secure a recovery for damages sustained. Section 5218 will, therefore, be considered with this mandate foremost in mind.

IV. Proceedings against MVAIC: Subdivisions (c) and (d) of Section 5218

It is noted that there is no language in this subdivision, or for that matter anywhere in section 5218, which expressly precludes an action against MVAIC unless such a judgment is first obtained in a proceeding against the suspect tortfeasor. On the contrary, subdivision (d) of section 5218 speaks to an alternative procedure and the right of a qualified person to join MVAIC as a party defendant in a pending proceeding against a suspect owner/operator. The only apparent precondition to such joinder is the entry of an order pursuant to subdivision (a) after a hearing and findings by the court, including a finding that petitioner has made “reasonable efforts” to identify the owner and/or operator of the hit-and-run vehicle.

It is apparent that said subdivisions of section 5218 contain no expressions which would require as a precondition that a qualified person conclusively establish that the proceedings against the suspect owner/operator would be unsuccessful. Such a precondition would require more than just “reasonable efforts” and would result in a virtual judicial repeal of the option provided by subdivision (d).

Article 52 was enacted for the benefit of innocent victims, not for the benefit of MVAIC, which is a creature of, and funded by, that enactment to close the gaps in the law and to relieve the financial burdens imposed upon victims of hit-and-run drivers. MVAIC was created not to be a hindrance to recovery by these innocent victims, but to provide “indemnification” to them when they are victimized by hit-and-run tortfeasors, including those suspect owners and operators who continue to deny responsibility when they are identified, albeit by insubstantial and/or inadmissible evidence.

Under the totality of circumstances presented in these proceedings, the court is satisfied that petitioner has made reasonable efforts to identify the suspect tortfeasor. It is the court’s opinion that the term “reasonable efforts” as used in the Insurance Law does not require a prior verdict or a conclusive showing that the identity of a suspect tortfeasor cannot be established. The court has determined that it would be inconsistent with the beneficent purposes of the Motor Vehicle Accident Indemnification Corporation Act to require petitioner to proceed against EO alone on the mere possibility that he would be successful, as well as unduly onerous to require the petitioner, a beneficiary of the act, to “exhaust” himself on what appears, at least at this juncture, to be speculative litigation against EO. In addition, based on all of the factors stated above, it is the court’s conclusion that all parties benefit by a joint or consolidated trial and that if joinder or consolidation is not permitted, there is a significant possibility that either the petitioner or MVAIC will be prejudiced.

It is therefore the decision of the medical court that an order be issued granting petitioner’s motion to proceed against MVAIC.

If you have been a victim of a hit-and-run by a motor vehicle, you need to consult a Bronx County Personal Injury Attorney to advice and help you petition before courts the relief which the law has provided in such cases.

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