Bellavia v. Motor Vehicle Acc. Indemnification Corp.

• Decision Date: 05 January 1961
• Citation: 211 N.Y.S.2d 356,28 Misc.2d 420
• Parties: Application of Salvatore BELLAVIA for Leave to Institute an Action v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION.
• Court: New York Supreme Court

Page 356

211 N.Y.S.2d 356

28 Misc.2d 420

Application of Salvatore BELLAVIA for Leave to Institute an Action v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION.

Supreme Court, Special Term, Queens County, Part I.

Jan. 5, 1961.

Joseph Henig, Massapequa, for Salvatore Bellavia.

McCarthy & McGrath, New York City, for Motor Vehicle Accident Indemnification Corp.

ANTHONY M. LIVOTI, Justice.

Application pursuant to section 618 of the Insurance Law for leave to institute an action against the Motor Vehicle Accident Indemnification Corporation.

The facts crucial to the determination of this application are contained in the first paragraph of the petition and are as follows:

'That on the 28th day of October, 1959 your petitioner was walking on the sidewalk on Maham Avenue near Roberts Avenue, Bronx, New York. A 1959 Chevrolet was parked at the curb and as your petitioner was walking past this car, a 1959 Ford struck the Chevrolet, pushing it onto the sidewalk and striking your petitioner . The Ford which had caused this accident kept going and the name of the driver was not obtained. It was ascertained by the investigation of the New York City Police Department that the owner of this 1959 Ford was one Catherine Lanza and that her vehicle was stolen and was being operated without her knowledge or consent.'

The applicant has in all respects complied with the provisions of the applicable subdivision (b) of section 608 of the Insurance Law, which section deals with the 'Notice of intention to file claim'. In order to grant this application, however, the court must be satisfied, among other things, that 'the applicant has a cause of action against the operator or owner of such motor vehicle or against the operator who was operating the motor vehicle without the consent of the owner of the motor vehicle' (Insurance Law, § 618, subd. (a)(4)). Section 618, which provides the 'Procedure for 'hit and run' cases', is immediately preceded by section 617, which provides for "Hit and run' causes of action'. This being a 'hit and run' case, it is to section 617 that we must turn in order to ascertain whether the applicant 'has a cause of action', as required by subdivision (a)(4) of section 618 quoted above.

Section 617 provides as follows:

'The protection provided by this article shall not apply to any cause of action by an insured or qualified person arising out of a motor vehicle accident occurring in this state lying against a person or persons whose identity is unascertainable, unless the bodily injury to the insured or qualified person arose out of physical contact of the motor vehicle causing such bodily injury with the insured or qualified person or which a motor vehicle which the insured or qualified person was occupying at the time of the accident. The word 'occupying' means in or upon or entering into or alighting from.'

That statute in unambiguous language requires physical contact between the very vehicle causing the bodily injury and the insured or qualified person or a motor vehicle which he was then occupying. 'It is true of course that the literal language of a statute is not always controlling in the interpretation thereof, but this is a principle to be adopted with extreme caution and only where the plain...