Dixon v. Motor Vehicle Acc. Indemnification Corp.
| Decision Date | 28 February 1977 |
| Citation | 56 A.D.2d 650,391 N.Y.S.2d 898 |
| Parties | In the Matter of Alfred DIXON, Appellant, v. The MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Pearlman, Gottesman, Apat, Kupillas & Futterman, Kew Gardens (Richard P. Broder, Williston Park, of counsel), for appellant.
Carroll & Spencer, New York City (James F. Carroll, New York City, of counsel), for respondent.
Before LATHAM, Acting P.J., and MARGETT, SUOZZI and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to section 618 of the Insurance Law, petitioner appeals from an order of the Supreme Court, Kings County, dated May 10, 1976 which denied, after a hearing, his application for leave to sue the respondent Motor Vehicle Accident Indemnification Corporation (MVAIC) and dismissed the petition.
Order reversed, without costs or disbursements, and proceeding remanded to Special Term for a new hearing in accordance herewith.
On December 21, 1973 petitioner sustained personal injuries as the result of being struck by an alleged 'hit and run vehicle'. Petitioner moved for leave to institute an action against the respondent MVAIC pursuant to section 618 of the Insurance Law. The respondent opposed the motion, contending that an issue of fact existed as to whether the police were notified of the accident pursuant to section 608 (subd. (b)) of the Insurance Law, and that said issue precluded a summary disposition of the motion. Section 608 (subd. (b)) mandates, in pertinent part, that a report of the hit-and-run accident be made to the police within 24 hours of the accident or, if not reasonably possible within that period, then as soon thereafter as is reasonably possible.
At the hearing conducted by the Special Term, petitioner's counsel produced a witness, a Mr. Lane, who actually saw the accident and who testified with respect thereto. After petitioner was struck, the witness approached him and then hurried to a telephone at a nearby apartment, where he dialed 'O' and asked the operator to contact the police and to get an ambulance. He then returned to the scene of the accident and remained with the petitioner until the ambulance arrived 45 minutes later. He accompanied the petitioner to the hospital, where he remained for approximately 40 minutes.
The witness admitted that he never spoke to the police directly. Moreover, it is conceded that the police never arrived at the accident scene and were not present at the hospital during the time that the witness was there. Finally, petitioner's attorney conceded that, if police witnesses were to be called, they would state that they had no record of the accident.
However, in a reply affidavit submitted on the application, petitioner deposed that the 'Police were at the hospital asking me what had happened and I told them.' Petitioner's counsel did not call petitioner as a witness at the hearing, apparently operating under the assumption that (a) petitioner, as the injured party, was not in a position to relate what had transpired at the time of the accident (i.e., petitioner was apparently unconscious shortly after the accident) and (b) that the telephone call by Mr. Lane to the operator was sufficient notice to the police under section 608 (subd. (b)) of the Insurance Law. Petitioner's counsel offered to bring his client in if the court so desired. In response to this offer, the court asked petitioner's counsel if he had concluded his case. Petitioner's counsel answered in the affirmative. The Special Term denied petitioner's application on the ground that timely notification of the hit-and-run accident had not been given to the police.
In our view, under the circumstances herein, the petitioner should have been afforded the opportunity to testify in his own behalf.
The thrust of petitioner's proof at the hearing, as adduced through the testimony of Mr. Lane, was that the hit-and-run accident occurred and that Mr. Lane gave notice to the police through a telephone call to the telephone company operator.
It must be noted that the statute does not require the injured party to make the report. Subdivision (b) of section 608 of the Insurance Law states that the protection provided by...
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Gunter v. Constitution State Service Co.
...v. Erie Insurance Group, 407 Pa.Super. 117, 595 A.2d 152 (1991). We commence with the case of Dixon v. Motor Vehicle Accident Indemnification Corp., 56 A.D.2d 650, 391 N.Y.S.2d 898 (1977), wherein the appellate division of the Supreme Court of New York was confronted with an appeal from an ......
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MB Advanced Equip., Inc. v. Mvaic
...MVAIC should be liberally construed to serve those ends. Englington, supra at 228. See, Matter of Dixon v. Motor Veh. Acc. Indem. Corp., 56 A.D.2d 650, 651, 391 N.Y.S.2d 898 (2nd Dept.1977). MVAIC must pay first-party no-fault benefits to a “qualified person” for basic economic loss arising......
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MB Advanced Equip., Inc. v. MVAIC
...MVAIC should be liberally construed to serve those ends. Englington, supra at 228. See, Matter of Dixon v. Motor Veh. Acc. Indem. Corp., 56 A.D.2d 650, 651, 391 N.Y.S.2d 898 (2nd Dept.1977). MVAIC must pay first-party no-fault benefits to a “qualified person” for basic economic loss arising......
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...fall far short of the operator's obtaining a written report (see, Canty v. MVAIC, 95 A.D.2d 509, 512, 467 N.Y.S.2d 50; Dixon v. MVAIC, 56 A.D.2d 650, 651, 391 N.Y.S.2d 898, citing Gordon v. MVAIC, 90 Misc.2d 382, 394 N.Y.S.2d 509 [Rubin, J.]; Casanova v. MVAIC, 36 Misc.2d 489, 232 N.Y.S.2d ......
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D. Uninsured—Motor Vehicle Accident Indemnification Corporation Act (MVAIC)
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