2023 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.