Citation Numbers： 171 A.D.2d 873, 567 N.Y.S.2d 800, 1991 N.Y. App. Div. LEXIS 3912
Filed Date： 3/25/1991
Status： Precedential
Modified Date： 10/31/2024
In a proceeding pursuant to Insurance Law § 5218 for leave to bring an action against the Motor Vehicle Accident Indemnification Corporation, the petitioner appeals (1) from an order of the Supreme Court, Kings County (Vinik, J.), dated October 11, 1989, which denied the application and (2), as limited by his brief, from so much of an order of the same court dated March 15, 1990, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated October 11, 1989, is dismissed, as that order was superseded by the order dated March 15, 1990, made upon reargument; and it is further,
Ordered that the order dated March 15, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The record fails to establish that the hit-and-run accident was one in which the identity of the owner and operator of the offending vehicle was unknown or not readily ascertainable through reasonable efforts. The petitioner was provided with the name of an organization which seems to have been a possible owner of the vehicle. The petitioner sent two letters to that organization which were not answered. Although the petitioner states that he also made telephone calls as soon as he learned of this organization, no evidence of this is present in the record. There is only evidence in the record to the effect that the petitioner made one telephone call after the court denied the instant application, which formed the basis of the application for reargument. However, even if the petitioner made telephone calls to the organization prior to the original determination, the petitioner still did not sustain his burden of showing that the identity of the owner and operator of the offending vehicle cannot be established (see, Insurance Law § 5218 [a], [b] [5]; Villanueva v Muniz, 136 AD2d 546; Byrd v Johnson, 60 AD2d 900; Cudehy v MVAIC, 36 AD2d 717). Brown, J. P., Sullivan, Eiber and O’Brien, JJ., concur.