In the Matter of Shawn Carter, Appellant, v. Motor Vehicle Accident Indemnification Corporation, Respondent

In the Matter of Shawn Carter, Appellant, v Motor Vehicle Accident Indemnification Corporation, Respondent. [852 NYS2d 915] [MAJORITY] Memorandum: Petitioner, allegedly the victim of a hit-and-run accident, appeals from an order denying his application for an order permitting him to commence an action against respondent pursuant to Insurance Law § 5218. We agree with petitioner that, by the affidavit of his attorney, he established the applicability of the presumption that he delivered the requisite notice of claim to respondent by mail (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; see generally Insurance Law §§ 5208, 5218 [b] [1]), and that respondent failed to rebut that presumption (see Nassau Ins. Co., 46 NY2d at 829-830). We further agree with petitioner that, on the record before us, Supreme Court erred in denying his application without conducting a hearing pursuant to Insurance Law § 5218 (b) to enable him to establish that he made “all reasonable efforts ... to ascertain the identity of the motor vehicle and of the owner and operator” (§ 5218 [b] [5]; see Matter of O’Rourke v Motor Veh. Acc. Indem. Corp., 29 AD2d 938 [1968]; Matter of Malitz v Motor Veh. Acc. Indem. Corp., 17 AD2d 108 [1962]). We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to Insurance Law § 5218 (b) (5). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.