As required by CPLR 2219(a), the papers considered in the review of this Motion include: Papers Numbered Order to Show Cause, Affirmation in Support and Exhibits 1 Affirmation in Opposition and Exhibits 2 Reply Affirmation 3 DECISION AND ORDER By order to show cause and petition, filed January 9, 2020, petitioner seeks an order, pursuant to New York Insurance Law §5218, allowing him to bring a direct action against respondent Motor Vehicle Accident Indemnification Corporation (MVAIC) nunc pro tunc. MVAIC opposes. The Court, having reviewed petitioner’s Order to Show Cause, found a triable issue of fact as to whether petitioner reported the accident “as soon as was reasonably possible” pursuant to Insurance Law §5208(a)(2)(B). Pursuant to CPLR §410, the Court held a framed-issue hearing on October 29, 2020. For the reasons set forth below, the petition is granted. Background On January 17, 2017, while lawfully walking across the intersection of East 225th Street and Paulding Avenue in the Bronx, petitioner was struck by an unidentified motor vehicle. Petitioner testified that after the accident, he tried to call 911 but his cellphone had no battery. Petitioner testified that he limped to his home, approximately one block away from the accident. Upon arriving at his home, petitioner informed his mother and uncle of the accident and they brought him to Montefiore Medical Center to seek treatment for his injuries. Petitioner testified that he reported the accident to hospital staff. Petitioner was discharged from Montefiore at approximately 5:40 AM on January 18, 2017. At discharge, petitioner testified that he was given a cane and instructed to attend physical therapy. As a result of the collision, petitioner allegedly sustained serious physical injury to his right knee and jaw. In his affidavit and testimony, petitioner stated that he could not walk for three days following the collision, and thus could not physically visit the precinct to report the accident until January 20, 2017. However, petitioner credibly testified that he called the 47th Precinct on January 18 and 19 to report the accident. Petitioner testified that on both occasions, the police told him that they could not help him. On January 20, petitioner testified that he felt a little better. Using his cane, petitioner walked to the precinct to make the police report in person, as the police would not take the report over the phone. There, petitioner finally obtained a police report. Petitioner submitted an application for no-fault benefits to MVAIC on February 1, 2017. MVAIC denied petitioner’s application, stating that it would not qualify petitioner as a covered person for failure to report the accident within 24 hours. In its opposition, MVAIC contends that petitioner did not provide objective medical evidence that he reported the accident as soon as possible due to his injuries. In his reply, petitioner annexes a one-page excerpt of his medical records. The excerpt, made by a physician’s assistant on January 18 at 1:18 AM, states that petitioner was struck by a car and presented to the emergency department with sudden onset, moderate “lower extremity pain and head injury.” Standard of Review Insurance Law §5218(b) provides that the Court may permit an action against MVAIC upon satisfaction of certain enumerated conditions, namely if the applicant is a “qualified person.” Insurance Law §5208(a)(2)(A) requires that notice of the accident be given to a “police, peace or judicial officer” within 24 hours of the occurrence. The requirement for notice “serves the important functions of preventing fraudulent claims and of giving the police an opportunity to investigate and bring the hit and run driver to justice.” Canty v. Motor Vehicle Acc. Indemnification Corp., 95 A.D.2d 509, 512 (2d Dept 1983). However, this requirement may be excused where a showing is made that it was “not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible.” Meridian Health Acupuncture, P.C. v. MVAIC, 22 Misc. 3d 141(A) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009). “[T]he courts have ‘consistently afforded a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator’s obtaining a written report.’” Matter of Pagan v. Motor Veh. Acc. Indem. Corp., 920 N.Y.S.2d 142 (2d Dept 2011) (citations omitted). “[F]ailure by the Police Authorities to record [a] report does not invalidate an otherwise proper claim.” Petition of Casanova, 232 N.Y.S.2d 713, 714 (Sup Ct, New York County 1962). The Court credits petitioner’s account that he called the police on January 18 and 19, 2017 to try to file a police report. The Court also credits petitioner’s account that the police refused to assist him. Considering the liberal interpretation afforded to the notice requirement, the Court finds that in calling the precinct and attempting to report the accident by phone on January 18, 2017, petitioner fulfilled the 24-hour notice requirement. See Matter of Country Wide Ins. Co. v. Russo, 201 A.D.2d 368 (1st Dept 1994) (reversing trial court and ordering evidentiary hearing where petitioner alleged that he called the precinct to try to report accident, but could not obtain a police report for over a week); Matter of American Mfrs. Mut. Ins. Co. v. Belgrave, 2005 NY Slip Op 30596(U) (Sup Ct, New York County 2005) (upholding Referee finding that petitioners timely reported accident per Insurance Law §5208, where petitioners called police within 24 hours to report the accident but did not obtain police report until two to three days later); Dixon v. Motor Vehicle Acc. Indemnification Corp., 56 A.D.2d 650 (2d Dept 1977) (holding that a witness’ call to the telephone operator, informing operator of the accident and advising operator to call the police, “could satisfy the notice requirement of the statute”). See also Gordon v. Motor Vehicle Acc. Indemnification Corp., 90 Misc. 2d 382 (Sup Ct, Bronx County 1976) (granting leave to petitioner where “only notice given to the police was by telephone and to the police emergency number 911″); Davis v. Motor Vehicle Acc. Indemnification Corp., 33 A.D.2d 663 (1st Dept 1969) (denying petition due to late notice, with the Court noting that petitioner “admitted she had a telephone in her apartment on the day of the accident”). Accordingly, the petition is granted. Nunc Pro Tunc Procedure The petition affirms that due to Statute of Limitations concerns, petitioner purchased an index number, CV-574-20, and filed a summons and complaint under the caption Geoffrey Mejia v. Motor Vehicle Accident Indemnification Corporation on January 9, 2020. The instant petition was filed eight days before the expiration of the three-year Statute of Limitations. The Statute of Limitations is tolled until an order granting leave to sue is entered. Vasquez v. Motor Vehicle Acc. Indemnification Corp., 272 A.D.2d 275, 276 (1st Dept 2000); Trepel v. Motor Vehicle Acc. Indemnification Corp., 267 A.D.2d 228, 229 (2d Dept 1999). Thus, the instant petition is timely. Petitioner erred in purchasing the index number and filing the summons and complaint without having leave of the Court to do so. However, the Court, in its discretion, grants petitioner leave to commence the action against MVAIC nunc pro tunc, using the previously purchased index number. See Romano v. Motor Vehicle Accident Indemnification Corp., 4 Misc. 3d 1001(A) (Sup Ct, Kings County 2004) (permitting plaintiff who timely commenced action against MVAIC, without leave of the Court, to proceed with action nunc pro tunc). Conclusion Accordingly, it is hereby ORDERED, that petitioner’s application for leave to bring an action against MVAIC is granted nunc pro tunc as of January 9, 2020. It is further ORDERED, that petitioner may proceed with the previously purchased index number, CV-574-20, under the caption Geoffrey Mejia v. Motor Vehicle Accident Indemnification Corporation. This constitutes the decision and order of the Court. Dated: December 7, 2020
