By order to show cause and petition, filed on October 20, 2021, under motion sequence one, petitioner Yuriy Mishchanchuk (hereinafter petitioner or Mishchanchuk) seeks an order pursuant to Insurance Law 5218, (1) permitting the petitioner to bring an action against respondent the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC), or (2) compelling MVAIC to assume the defense indemnification in a lawsuit against the known owner/operator. This application is opposed by MVAIC. Order to Show Cause Affirmation in Support Petition Exhibit A to E Affirmation in Opposition Exhibits A to C Reply For leave to commence an action pursuant To Section 5218 of the Insurance Law BACKGROUND On October 20, 2021, Mishchanchuk commenced the instant special proceeding by electronically filing an order to show cause and verified petition with annexed exhibits (hereinafter the commencement papers) with the Kings County Clerk’s office (KCCO). The commencement papers allege the following salient facts. On October 21, 2018, at approximately 10:58 p.m., Mishchanchuk, a bicyclist, was struck by a motor vehicle on Avenue K near the intersection of Coney Island Avenue in Brooklyn, New York (hereinafter the accident). Mishchanchuk alleges that he suffered serious injuries due to the accident. The petition refers to an annexed uncertified police accident report, which identifies the vehicle operator as Ezra Baraka, and the motor vehicle as a 2018 GMC registered to Next Gear Inc. bearing the State of Louisiana registration number DI78664. On November 20, 2018, within 90 days of the accident, Mishchanchuk served a Notice of Intention to Make a Claim on MVAIC. The petitioner alleges that the motor vehicle had no insurance coverage at the time of the accident. Mishchanchuk alleges that by letter received in June 2019 MVAIC determined him to be a “qualified person” pursuant to Insurance Law 5202. Upon this determination, Mishchanchuk’s counsel forwarded his medical records and other documents in support of his claims of damages. On October 19, 2021, the petitioner commenced an action against Ezra Baraka and Next Gear Inc. in the Kings County Supreme Court, under Index Number 526685/2021. The petition further alleges that a previous application for similar relief was filed on September 20, 2021, in Kings County Supreme Court. MOTION PAPERS The petitioner’s papers consist of an order to show cause, a verified petition, an affirmation of counsel, and five annexed exhibits labeled A through E. Exhibit A is a copy of an uncertified Police Accident Report dated October 21, 2018. Exhibit B is a copy of a four-page document titled Notice of Intention to Make Claim. Exhibit C is described as a License Plate search. Exhibit D consists of a letter from MVAIC dated June 3, 2019, and copies of a series of emails. Exhibit E is a copy of the summons and verified complaint in the matter of Yuriy Mishchanchu v. Ezra Baraka and Next Gear Inc., under Index Number 526685/2021. MVAIC’s opposition papers consist of an affirmation of counsel and three annexed exhibits labeled A through C. Exhibit A is described as a copy of Insurance Law Article 52, “The Motor Vehicle Accident Indemnification Act.” Exhibit B is a copy of an uncertified Police Accident Report dated October 21, 2018. Exhibit C consists of athree pages titled Notice of Intention to Make Claim. LAW AND APPLICATION Article 52 of the Insurance Law is known as the “Motor Vehicle Accident Indemnification Corporation Law.” It was created to compensate innocent qualified victims for accidents caused by uninsured motor vehicles, unidentified motor vehicles that leave the scene of an accident, and motor vehicles operated without the permission of the owner (Archer v. Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 8-9 [2d Dept 2014]), citing Insurance Law §5201[b]; see Quiridumbay v. Motor Veh. Acc. Indem. Corp., 176 AD3d 717, 717-18 [2d Dept 2019]). Leave To Sue MVAIC Insurance Law §5218, which is titled “Procedure for Hit and Run Cases,” provides that: 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. A petitioner seeking leave of court to commence an action against MVAIC has the initial burden of demonstrating that he or she is a “qualified person” within the meaning of the Insurance law and making an evidentiary showing that he or she has satisfied any other statutory requirements (Mele v. Motor Veh. Acc. Indem. Corp., 186 AD3d 1375 [2nd Dept 2020], citing Matter of Hernandez v. Motor Veh. Acc. Indem. Corp., 120 AD3d 1347, 1349 [2nd Dept 2014]). In a special proceeding, the court is empowered to make a summary determination to the extent that no triable issues of fact are raised (Mele, 186 AD3d at 1376, citing CPLR 409[b]). If triable issues of fact are raised, an evidentiary hearing must be held (Mele, 186 AD3d at 1376, citing CPLR 410). In the instant matter, the petitioner contends that although he knows the identity of the owner and operator of the vehicle involved in the accident that he is a “qualified” person as he has determined that the alleged tortfeasors are uninsured, and he should be permitted to bring a direct action against MVAIC. Notwithstanding the petitioner’s contentions, Insurance Law §5218 only permits a suit directly against MVAIC where a person has been injured by an automobile and the identity of the owner and operator cannot be established or the vehicle was used without the owner’s consent by an unknown person (Quiridumbay, 176 AD3d at 718). The petitioner’s submissions establish that the accident was not a hit and run, and the vehicle and its operator were identified (see Abdul S. v. Motor Veh. Acc. Indem. Corp., 166 AD3d 402, 403 [1st Dept 2018]). Accordingly, the procedures pursuant to Insurance Law 5218 cannot be applied here. Compelling MVAIC to Defend and Indemnify In the alternative, the petitioner seeks an order compelling MVAIC to assume the defense indemnification in a lawsuit against the known owner/operator. When a petitioner knows the identity of the driver or the owner of the offending vehicle, the petitioner must first exhaust the available remedies against those individuals before seeking relief from MVAIC (Hauswirth v. Am. Home Assur. Co., 244 AD2d 528, 529 [2nd Dept 1997], citing Matter of Troches v. Motor Vehicle Acc. Indem. Corp., 171 AD2d 873 [2nd Dept 1991]; see also Matter of Frankl v. Motor Vehicle Acc. Indem. Corp., 53 AD2d 614 [2nd Dept 1976]). Although neither the petition nor the affirmation of counsel cites any specific provisions for the remedy requested, Insurance Law §§5209 and 5210 contemplates when an action has been commenced against an offending motorist. Insurance Law §5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist (see Archer v. Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 9 [2nd Dept 2014]). MVAIC may do so on its own or pursuant to a motion to compel brought by the qualified injured plaintiff (see Naula v. Dela Puente, 48 AD3d 434 [2nd Dept 2008], citing Viuker v. Allstate Insurance Co., 70 AD2d 295 [2nd Dept1979]). “Where judgment has been entered against an uninsured defendant in favor of a qualified person, Insurance Law §5210 provides that a qualified person may petition the court to compel MVAIC to pay the amount of a judgment against that uninsured defendant that remains unpaid, subject to the limitations contained therein” (Baker v. Motor Veh. Acc. Indem. Corp., 161 AD3d 1070, 1072 [2nd Dept 2018], quoting Archer v. Motor Veh. Acc. Indem. Corp., 118 AD3d 5, 9 [2nd Dept 2014]). The petitioner’s submissions include a summons and complaint, verified by his counsel, for an action against the uninsured operator and owner, in the matter of Yuriy Mishchanchu v. Ezra Baraka and Next Gear Inc., under a separate index number (hereinafter Offending Vehicle Action). In opposition, MVAIC contends that the petitioner has not established that it exhausted all remedies against the offending vehicle and that the petitioner’s application must be denied. The instant petition verified by Mishchanchuk does not provide any information regarding the status or disposition of the offending vehicle action. The petitioner has not demonstrated that the offending vehicle action failed due to lack of proof of the identity of the owner or operator (see Graves v. MVAIC, 197 AD3d 943, 944 [4th Dept 2021]). The petitioner has not established that a judgment was rendered against the uninsured owner or operator in the offending vehicle action that remains unpaid (see id., citing Acosta-Collado, 103 AD3d at 716). Furthermore, the petitioner has not demonstrated the uninsured operator or owner has defaulted in the offending vehicle action (Villanueva v. Muniz, 136 AD2d 546 [2nd Dept 1988]). Therefore, the petitioner has not met his burden to compel MVAIC to defend or indemnify. CONCLUSION The application of petitioner Yuriy Mishchanchuk for an order pursuant to Insurance Law 5218 permitting the petitioner to bring an action against respondent the Motor Vehicle Accident Indemnification Corporation is denied. The application of petitioner Yuriy Mishchanchuk for an order compelling respondent the Motor Vehicle Accident Indemnification Corporation to assume the defense indemnification in a lawsuit against the known owner/operator is denied. Dated: June 28, 2022
