The Rogak Report: 31 Aug 2007 ** MVAIC - Qualified Person **
- COURT'S GRANTING OF LEAVE TO SUE MVAIC IS NO BAR TO LATER FINDING
THAT CLAIMANT WAS DRIVING UNINSURED VEHICLE, THUS NOT QUALIFIED PERSON
Abdiyev v Motor Veh. Acc. Indem. Corp., 2007 NYSlipOp 51640(U) (App.
Term, 2d Dept)
This was an appeal from an orde from Civil Court, Queens County
(Gerald Dunbar, J.) which denied MVAIC's motion for summary judgment.
The Appellate Term reversed and dismissed the Complaint.
Plaintiffs David Abdiyev and Catherine Yunatanova commenced the
instant action against defendant MVAIC to recover damages for
injuries sustained when the vehicle in which they were traveling was
struck by a hit and run driver. After the Supreme Court entered an
order granting plaintiffs leave to sue MVAIC, the action was removed
to the Civil Court pursuant to CPLR 325(d). Approximately two years
after plaintiffs were granted leave to sue, MVAIC moved to dismiss
the cause of action asserted by Abdiyev on the ground that he was not
qualified to receive benefits from MVAIC since he was injured while
driving an uninsured vehicle. The Civil Court denied MVAIC's motion,
holding that the Supreme Court's order found that Abdiyev was a
qualified person under the Insurance Law and that such an order was
binding upon the Civil Court due to the doctrine of law of the case.
This appeal by MVAIC ensued.
"While the Supreme Court implicitly found that Abdiyev was a
qualified person, since such finding is a prerequisite to the order
which granted Abdiyev leave to sue MVAIC (Insurance Law § 5218[b]
), it was based upon the Supreme Court's threshold determination
that the statutory requirements were satisfied. The findings
were 'made solely for the purposes of the application under section
[5218(b)(3)] of the Insurance Law and are in no way binding on the
trier of fact that ultimately must resolve the issues of liability.'"
"Since the record now unequivocally establishes that Abdiyev was
injured while driving an uninsured motor vehicle, dismissal of his
cause of action is warranted as a matter of law."
"Abdiyev's contention that MVAIC failed to proffer sufficient proof
in admissible form lacks merit since the proof upon which MVAIC
relies was initially proffered by Abdiyev."
[Enjoy your Labor Day weekend safely!]