I.INTRODUCTION

In this action plaintiff, a minor, claims he was injured July 22, 1998, when he was a passenger in a motor vehicle owned by defendant Santos and operated by defendant Guzman, which struck a motor vehicle owned by defendant Ortega and operated by defendant Bruno. In a decision dated September 30, 2005, this court denied plaintiff's request pursuant to NY Ins. Law §§ 5201(b) and 5206(e), to join the Motor Vehicle Accident Indemnification Corporation (MVAIC) or to sue MVAIC directly on that claim, based on the lack of insurance coverage for Ortega's vehicle. Mejia v. Santos, 10 Misc 3d 831, 833 (Sup. Ct. Bronx Co. 2005). The court concluded that relief was unavailable on that basis because plaintiff failed to notify MVAIC that Ortega's vehicle was uninsured within 180 days after March 8, 1999, when plaintiff's attorney received notice that the vehicle was not insured by Allstate Insurance Company. NY Ins. Law § 5208(a)(1) and (3); McCray v. Motor Vehicle Acc. Indem. Corp., 232 AD2d 948, 949 (3d Dep't 1996); Wilcox v. Motor Vehicle Acc. Indem. Corp., 187 AD2d 909, 910-11 (3d Dep't 1992). See Travelers Ins. Co. v. Morzello, 221 AD2d 291, 292 (1st Dep't 1995); Vil v. Motor Vehicle Acc. Indem. Corp., 304 AD2d 588 (2d Dep't 2003). Plaintiff has moved to reargue that branch of his requested relief. C.P.L.R. § 2221(d).

Plaintiff also sought to join MVAIC or to sue it directly, based on the lack of insurance coverage for Santos's vehicle, because his vehicle was insured by Reliance Insurance Company, a domestic insurer that became insolvent after the collision. The court's September 2005 decision granted plaintiff's request on this basis to the extent of permitting plaintiff to join the [*2]Superintendent of the New York State Insurance Department, in his capacity as the administrator of the New York Public Motor Vehicle Liability Security Fund, for purposes of the requested relief, and ordering a hearing. The issues to be heard were (1) if and when Santos's Reliance Insurance policy became uncollectible; (2) whether the State Liquidation Bureau had declined to cover plaintiff's claim; and (3) if so, when plaintiff notified MVAIC of the Liquidation Bureau's action. Mejia v. Santos, 10 Misc 3d at 837. Upon the evidence admitted at the hearing June 19, 2006, and the parties' arguments concerning that evidence, the court makes the following findings and conclusions, after disposing of plaintiff's motion for reargument.

II.REARGUMENT

A motion for reargument is to be based on facts or law that the prior decision overlooked or misapprehended. C.P.L.R. § 2221(d)(2); Rivera v. Benaroti, 29 AD3d 340, 341 (1st Dep't 2006); Jones v. Budhwa, 23 AD3d 154 (1st Dep't 2005); C.R. v. Pleasantville Cottage School, 302 AD2d 259, 260 (1st Dep't 2003); Johnson v. New York City Commn. on Human Rights, 270 AD2d 186, 187 (1st Dep't 2000). Reargument is not a vehicle for arguments not raised in plaintiff's original motion. Dinstber v. Fludd, 2 AD3d 670 (2d Dep't 2003); Pryor v. Commonwealth Land Tit. Ins. Co., 1 AD3d 494, 495 (2d Dep't 2003); Frisenda v. X Large Enters., 280 AD2d 514, 515 (2d Dep't 2001). See Rubinstein v. Goldman, 225 AD2d 328 (1st Dep't 1996); Mariani v. Dyer, 193 AD2d 456, 458 (1st Dep't 1993); William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dep't 1992).

Plaintiff claims the court misapprehended that his Notice of Intention to Make Claim Against MVAIC for damages from the July 1998 collision, mailed to MVAIC August 5, 1998, "did not indicate that either Santos's vehicle or Ortega's vehicle was uninsured." Mejia v. Santos, 10 Misc 3d at 832. Plaintiff previously did not and still does not dispute that page 1 of his Notice of Intention to Make Claim "listed Reliance Insurance Company and Allstate Insurance Company as the insurers of Santos's vehicle and Ortega's vehicle respectively." Id. Nevertheless, he now points out that at page 2, under "Reason for application" to MVAIC, he checked all eight alternatives, one of which is "Uninsured Car." Aff. of Claire M. Garcia, Ex. 1 at 2.

The court's determination was and still is that this blunderbuss attempt to "cover all bases" may not be interpreted to negate the more specific and unambiguous notice at page 1. The indication of "Uninsured Car" at page 2 is unspecific as to which vehicle was uninsured and confusing, at best, as to any basis for claiming lack of insurance. Insurance Law §§ 5201(b) and 5208(a) distinguish "uninsured motor vehicle," NY Ins. Law §§ 5201(b)(1), 5208(a)(1)(B); see NY Ins. Law § 5201(b)(3); insured vehicles or persons, whose insurers have disclaimed liability or denied coverage, NY Ins. Law §§ 5201(b)(6), 5208(a)(3)(A)(ii); see NY Ins. Law § 5201(b)(3); unidentified vehicles, NY Ins. Law §§ 5201(b)(2), 5208(a)(2)(A)(ii); and stolen vehicles. NY Ins. Law § 5201(b)(4) and (5). Giving plaintiff the benefit of the doubt, and assuming he ignored the statutory distinctions or did not view them as mutually exclusive, his notice still completely obscures any basis for claiming the vehicle was uninsured, since he checked every possible reason for his claim. Having selected [*3]each of these alternatives, did he claim lack of coverage due, for example, to a "Denial of Coverage"; to a "Disclaimer" of liability; to an "Unidentified Car," precluding identification of coverage; or to a "Stolen Car," excluding the vehicle from applicable coverage? Garcia Aff., Ex. 1 at 2.

Yet it is impossible in fact to give plaintiff the benefit of the doubt and assume his ignorance or variant interpretation of the statutory distinctions. In addition to embracing all the alternatives delineated above, plaintiff acknowledged that a "disclaimer letter must be attached," but failed to attach one, because no disclaimer had been issued. Id. Thus at least two marked alternatives were indisputably known to be false.

Since no denial of coverage had been issued either, and the notice on the preceding page specifically identified both vehicles involved, and no evidence ever suggested either vehicle was stolen, these other marked alternatives were equally false. Nor may any other conclusion be drawn regarding the indication of "Uninsured Car," since on the preceding page the notice also specifically identified the insurer of each vehicle. Moreover, regardless of the statutory distinctions, simple logic dictates that, once plaintiff's notice designated the vehicle that injured plaintiff as "Unidentified," see NY Ins. Law §§ 5201(b)(2), 5208(a)(2)(A)(ii), plaintiff could not also legitimately believe it was stolen, see NY Ins. Law § 5201(b)(4) and (5), or uninsured, see NY Ins. Law §§ 5201(b)(1) and (3), 5208(a)(3)(A)(ii); or coverage had been denied; or liability had disclaimed. See NY Ins. Law §§ 5201(b)(3) and (6), 5208(a)(3)(A)(ii).

In sum, the notice's "Reason for application" section, at page 2, notified MVAIC of a list of contradictory and outright false claims or, at best, nothing at all, and is not adequate or even cognizable to support plaintiff's claim of timely notice to MVAIC that Ortega's vehicle was uninsured. See, e.g., Gangloff v. East Islip School Dist., 240 AD2d 366, 367 (2d Dep't 1997). While "covering all bases" often may be careful and effective representation, where the objective is notice of the basis for a claim, notice of all possibilities, particularly where two or more are mutually exclusive, is, in effect, no notice. Therefore the court denies plaintiff reargument of his prior request to sue MVAIC on the ground that Ortega's vehicle was uninsured and adheres to the decision dated September 30, 2005, denying plaintiff relief on that ground. C.P.L.R. § 2221(d).

III.THE HEARING ON COVERAGE OF PLAINTIFF'S CLAIM AGAINST SANTOS'S VEHICLE

A.Undisputed Background Facts

After plaintiff sought coverage from Reliance Insurance Company, Santos's insurer, plaintiff received a copy of a notice dated May 1, 2002, to Santos and Guzman from the State of New York Insurance Department Liquidation Bureau. The notice stated that Reliance Insurance was insolvent and in liquidation; so, as of December 14, 2001, the New York State Superintendent of [*4]Insurance was appointed Ancillary Receiver of Reliance Insurance in New York; and the claim was covered by the New York Public Motor Vehicle Liability Security (PMV) Fund, but:

At this time, the PMV Fund is unable to provide either a defense to or indemnification of this claim insofar as the PMV Fund is financially strained. . . . Thus you are responsible for the payment of any . . . costs and expenses relating to this claim.

Reasonable and necessary costs and expenses you are required to pay as a result of this claim may be submitted to the Liquidation Bureau upon the claims resolution.

Mejia v. Santos, 10 Misc 3d at 833. The key questions to be resolved at the hearing, then, were whether now, in contrast to May 1, 2002, the PMV Fund is able to provide a defense to or indemnification of plaintiff's claim, or the PMV Fund is so financially strained as to preclude payment of his claim, or upon the claim's resolution, eventual payment may be anticipated. Id. at 834-35 (interpreting "collectibility").

B.The Developing Standards to Be Applied

While Reliance Insurance became insolvent after the collision involving Santos's vehicle, which plaintiff occupied, Santos's insurance policy survived, and the PMV Fund assumed the policy obligations owed to the insured to cover any liability to plaintiff. Matter of Union Indem. Ins. Co. of NY, 92 NY2d 107, 113, 127 (1998); State-Wide Ins. Co. v. Curry, 43 NY2d at 303; Eagle Ins. Co. v. Hamilton, 16 AD3d 498, 501 (2d Dep't 2005); Mejia v. Santos, 10 Misc 3d at 836. The PMV Fund provides coverage for injured parties' allowed claims that remain unpaid due to an insurer's insolvency. NY Ins. Law § 7604(a); Mejia v. Santos, 10 Misc 3d at 836; American Tr. Ins v. Barger, 13 Misc 3d 386, 392 (Sup. Ct. NY Co. 2006). As long as Reliance Insurance paid into the PMV Fund, NY Ins. Law § 7604(b), a fact not in dispute, plaintiff's recourse is against the PMV Fund via the State Superintendent of Insurance. NY Ins. Law §§ 7607(a), 7608; Mejia v. Santos, 10 Misc 3d at 836; American Tr. Ins v. Barger, 13 Misc 3d at 392.

MVAIC is only a remedy of final resort for plaintiff, if no other coverage, including resort to the PMV Fund, is available to compensate him. Matter of Union Indem. Ins. Co. of NY, 92 NY2d at 113, 127; State-Wide Ins. Co. v. Curry, 43 NY2d at 302-303; Eagle Ins. Co. v. St. Julian, 297 AD2d at 738; Mejia v. Santos, 10 Misc 3d at 836. Only if the PMV Fund that stands in Reliance Insurance's place now denies him recovery, is MVAIC his only remaining remedy. State-Wide Ins. Co. v. Curry, 43 NY2d at 304; Mejia v. Santos, 10 Misc 3d at 836.

MVAIC persists in maintaining, however, just as it insisted before this court's September 2005 decision, that no conceivable circumstances flowing from the insolvency of Santos's insurer would require MVAIC to defend or indemnify the insured. To [*5]support this position, MVAIC continues to present lower court orders that predate Eagle Ins. Co. v. Hamilton, 16 AD3d 498, decided March 14, 2005, and rely on Eagle Ins. Co. v. Hamilton, 4 AD3d 355 (2d Dep't 2004), which the March 2005 decision vacated.

The two orders MVAIC presents that postdate March 14, 2005, and do not rely on the vacated appellate decision support the relief this court ordered in September 2005. The Kings County Supreme Court similarly ordered a hearing "to determine the current financial status of the Security Fund," recognizing that State-Wide Ins. Co. v. Curry, 43 NY2d 298, "relied upon the fact that the Security Fund had the ability to provide . . . a deep pocket for the claimant to draw from—a factor that may no longer prove true as it appears from the submissions made herein that the Fund itself may be insolvent." Ex. M at 2. The Richmond County Civil Court denied relief against MVAIC on grounds similar to this court's determination regarding Ortega's vehicle: because the plaintiff failed to notify MVAIC that Reliance Insurance, also the insurer of the vehicle involved in that action, was insolvent within 180 days after plaintiff received notice of that insolvency. Ex. O (also citing NY Ins. Law § 5208(a)(1) and (3) and Vil v. Motor Vehicle Acc. Indem. Corp., 304 AD2d 588). Nonetheless, in addition to assuming that Reliance Insurance's insolvency after the collision otherwise would have "triggered MVAIC coverage," Ex. O at 1, the court in Richmond County found the "PMV was financially unable to provide defense or indemnification in this matter," relying on Montemarano v. Serio, 8 AD3d 19 (1st Dep't 2004).

There, the court found in 2003 that the State Superintendent of Insurance had "demonstrated that the PMV Fund did not . . . possess sufficient assets to cover outstanding claims," was "declining to provide coverage in light of the PMV Fund's financial condition," and could "not now use the PMV Fund to provide a defense to, or indemnification of, any claims against Reliance or Reliance insureds." Montemarano v. Serio, 2003 WL 1870233 at *2, 2003 NY Slip Op 50653 (Sup. Ct. NY Co. Mar. 27, 2003), aff'd, 8 AD3d 19. The insurers' contributions to the PMV Fund were inadequate to fund current or anticipated claims. Id. at *2 n.2, aff'd, 8 AD3d 19. Therefore the petitioners, seeking the Superintendent of Insurance's coverage of their claims there, did not meet their burden of proof and established neither a factual nor a legal basis that the Superintendent was obligated to defend and indemnify claims insured under Reliance vehicle insurance policies. Id. at *3, aff'd, 8 AD3d 19.

Thus the law that has evolved from Eagle Ins. Co. v. Hamilton, 16 AD3d 498, in March 2005, this court's September 2005 decision, Mejia v. Santos, 10 Misc 3d 831, and the other lower court decisions, contrary to MVAIC's persistent stance, is that there may be circumstances flowing from an insurer's insolvency that would require MVAIC to defend and indemnify the insured. Here, however, plaintiff has not sustained his burden to prove that coverage is in fact unavailable through the State Liquidation Bureau and that therefore Santos's Reliance Insurance [*6]policy has become uncollectible.

C.Further Findings of Fact

Based on the testimony of Jack Franceschetti Esq. from the State Insurance Department Liquidation Bureau, various funds are available depending on the type of insurance. See, e.g., Montemarano v. Serio, 2003 WL 1870233 at *2, aff'd, 8 AD3d 19. Here, a determination was made when the Liquidation Bureau issued the May 2002 notice, Ex. C at 1-2, that a commercial vehicle was involved in the collision, and therefore the PMV Fund was the available fund to be tapped for plaintiff's claim. Because that notice states the claim is covered by the PMV Fund, the notice constitutes neither a denial of coverage nor a disclaimer of liability. See NY Ins. Law §§ 5201(b)(3) and (6), 5208(a)(3)(A)(ii).

The Liquidation Bureau finally issued another notice dated January 25, 2006, but it simply reiterated the pertinent points in the May 2002 notice regarding the availability of coverage to the insured and thus to plaintiff. Exs. 1 and C at 3-4. Franceschetti's affidavit of March 23, 2006, also admitted without objection, again reiterates what the parties previously were advised and indicates no change regarding the PMV Fund or plaintiff's claim since the January 2006 notice. Ex. 2.

Nevertheless, the more recent and instructive affidavit of June 13, 2006, by Christopher Rulon, the Insurance Department's Director of Administration and Operations, admitted without objection, shows that the PMV Fund ultimately may be a source of recovery for plaintiff. Ex. 3. Rulon supervised the PMV Fund for the past 34 months, overseeing all payments by insurers to the Fund and payments by the Fund for allowed claims. Although at first blush the PMV Fund's current balance, $156,103.82 as of June 12, 2006, measured against its current unpaid claim obligations received in the Liquidation Bureau and approved for payment, $5,619,576.20 as of the same date, conveys the Fund's financial strain, the PMV Fund is a revolving fund, continually replenished. Its balance as of April 1, 2005, for example, was $375,229, but its receipts in insurers' contributions, recoveries from insurers in liquidation, and interest over the next year totalled $10,765,385. From those amounts the Fund disbursed $11,038,570, most of which was to pay claim obligations for insolvent insurers. Similarly, between April 1 and 30, 2006, the Fund received another $848,028 and disbursed $804,885.

The Liquidation Bureau pays claims in order of receipt. As of June 13, 2006, the next claims to be paid were received approximately 11 months before. Thus the Liquidation Bureau is constantly, albeit slowly, paying claims. Nothing in the evidence or applicable law indicates that such a delay equates with uncollectibility: the absence of any potential source, other than MVAIC, available for eventual payment of plaintiff's claim. While there may be circumstances, as set forth above, when an insurer's insolvency would require MVAIC's defense and indemnification of the insured, given the proof here, the only mechanism currently authorized to compensate plaintiff, even if [*7]he was seriously injured and defendants were at fault in causing his injury, is through the PMV Fund and not through MVAIC.

IV.DISPOSITION

Consequently, the court both denies plaintiff's motion for reargument, C.P.L.R. § 2221(d), and, after a hearing, determines that plaintiff currently is not entitled to any relief against MVAIC, on the grounds that either Ortega's vehicle was uninsured or Santos's insurer is insolvent. Therefore the court dismisses plaintiff's claims against MVAIC.

DATED: February 16, 2007

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LUCY BILLINGS, J.S.C.