MVAIC Petition Denied as Petitioner Did Not Demonstrate Reasonable Efforts to Ascertain the Identity of Owner/Operator of Vehicle in Hit-and-Run Accident

In the Matter of Cymba Melville v. Motor Vehicle Accident Indemnification Corporation (decided on or around November 14 2022, Index No. 705389/19), the Appellate Division, Second Department affirmed a Queens County Supreme Court Order which denied a petition, in a hit-and-run accident, which sought permission to file a lawsuit against the Motor Vehicle Accident Indemnification Corporation (“MVAIC”).  

 

The case arose when the petitioner allegedly was injured when a vehicle in which she was a passenger in was struck by another vehicle.  As she initially claimed to not know the identity of the owner and/or operator of the other vehicle – and as she presumably did not know whether that vehicle was insured, as the vehicle she was in was likely uninsured, and as she likely did not have any automobile insurance of her own (including by way of her household) – then she filed a Notice of Intention to Make a Claim with MVAIC (as MVAIC, a non-profit organization created by NYS legislation, is often a last resort and option for injured persons in automobile accidents when there is no other available insurance).

 

The Supreme Court, however, denied the petition, and the Appellate Division affirmed – with a holding that included the following: “The Supreme Court did not err in denying the petition pursuant to Insurance Law Section 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party.  MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents…Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law Section 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts.”  The Court further noted – and what appears to be a significant and decisive factor in the Court’s reasoning – is, “While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted.”  

 

Salvatore R. Marino, Esq.

High School Football Player Did Not "Assume the Risk" of Weightlifting Injury

Annitto, etc. v. Smithtown Central School District (decided on or around November 4, 2022, Index No. 611093/17) highlights the “assumption of risk” doctrine/defense in the context of high school athletic programs.  In the case, the plaintiff, on a high school football team, sustained serious injuries (including one of his fingers being crushed) when he was engaging in weight training exercises at the high school.  The incident happened during an off-season weight training test overseen by the school’s football coach.  Thereafter, the plaintiff’s mother commenced a lawsuit on his behalf against the school and in the Suffolk County Supreme Court, including, among other things, alleging negligent supervision.  At some point during the pre-trial process, the school moved to dismiss the case by way of a summary judgment motion – including asserting an argument that the plaintiff “assumed the risk” – and the Supreme Court granted the motion.

 

On appeal, however, the Appellate Division, Second Department reversed (thereby restoring the case), and with its decision including the following: “While the weight test was related to the infant plaintiff’s conditioning, and was occasioned by his membership on the school’s football team, that does not mean that the risk of being injured while lifting a heavy bar is inherent in the sport of football.  We cannot conclude that the fact that a person is getting in shape to play a sport means that the person assumes all of the risks associated with getting in shape, such that a school district would have no duty to its students to provide safe conditions for lifting weights and proper supervision of that activity.”

 

Salvatore R. Marino, Esq.