N.Y. Insurance Law § 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.