NY Ins L § 5218 (2021)
2021 New York Laws ISC - Insurance Article 52 - Motor Vehicle Accident Indemnification Corporation 5218 - Procedure for "Hit and Run" Cases.

§  5218.  Procedure  for "hit and run" cases. (a) 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.  (b) The court may proceed upon the application in a summary manner and may make an order permitting the action  when  after  a  hearing  it  is satisfied that:  (1)  the  applicant has complied with the requirements of section five thousand two hundred eight of this article;  (2) the applicant is a qualified person;  (3) the injured or deceased person was not at the time of the accident operating an uninsured motor vehicle or operating  a  motor  vehicle  in violation of an order of suspension or revocation;  (4)  the applicant has a cause of action against the operator or owner of the motor vehicle;  (5) all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the  identity of  the  motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was  operating  the  motor  vehicle without the owner's consent, cannot be established; and  (6)  the  application  is  not  made  by or on behalf of an insurer or surety under circumstances described in paragraph six of subsection  (a) of section five thousand two hundred eleven of this article.  (c)  In  any  action in which the plaintiff is a qualified person, for the death of, or bodily  injury  to,  any  person  arising  out  of  the ownership,  maintenance  or  use  of  a  motor vehicle in this state and judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle: (i)  the  identity of  which,  and  of  the  owner  and  operator  of  which,  has not been established, or (ii) which was in the possession of  some  person  other than  the  owner  or  his agent without the consent of the owner and the identity of the operator has not been established, that ground shall  be stated in the judgment. The plaintiff, upon complying with paragraph one of  subsection  (a)  of  section five thousand two hundred eight of this article, may within three months from the  date  of  the  entry  of  the judgment  make application to bring an action upon the cause against the corporation in the manner provided in this section.  (d) In any action commenced in respect of the death or injury  of  any person  arising  out  of  the  ownership,  maintenance or use of a motor vehicle in this state the  plaintiff  shall  be  entitled  to  make  the corporation  a  party  defendant  if  the  court  has  entered the order provided for in subsection (a) of this section.  (e)  The  corporation  may  generally  deny  the  allegations  of  the complaint and shall not be required to set forth the facts upon which it relies.    It  may assert any defense which would have been available to the operator or owner if the action had been brought  against  them  and process in the action had been duly served within this state upon them.  (f) (1) The corporation may settle without court approval any claim or action  if  the  board,  after due deliberation: (i) determines that the claim or action is asserted or brought pursuant to this section; (ii) is satisfied that the settlement is fair; and (iii) approves payment  which in no event shall exceed the applicable amount specified in section five thousand two hundred ten of this article.  (2)  Settlement  of  claims  and actions without court order shall not apply to settlement of  claims  or  actions  by  infants  or  judicially declared incompetents.  (g)  (1)  Any  judgment  obtained  pursuant  to  this section shall be reduced by any  amount  recovered  by  the  plaintiff  as  specified  in paragraph  seven  of subsection (a) of section five thousand two hundred eleven of this article. Upon conclusion of  all  proceedings,  including appeals  and  reviews,  the court shall order the corporation to pay the plaintiff the amount of the judgment or the applicable amount  specified in  subsection  (a)  of  section  five  thousand two hundred ten of this article, whichever is less.  (2) Upon payment by the corporation it  shall  be  subrogated  to  the cause  of action of the judgment creditor against the operator and owner of the motor vehicle by which the accident was occasioned. It may  bring an  action  against either or both of such persons for the amount of the damage sustained by the judgment creditor when the  identity  of  either becomes known.  It shall be entitled to recover the amount of the damage out  of  any  funds  which  would  be payable in respect to the death or injury under any policy of insurance which was in force at the  time  of the  accident.  Money  collected  in  excess  of all amounts paid by the corporation shall be paid to the judgment creditor.