Abdiyev v Motor Veh. Acc. Indem. Corp. (2007 NY Slip Op 51640(U))

Abdiyev v Motor Veh. Acc. Indem. Corp.

2007 NY Slip Op 51640(U) [16 Misc 3d 136(A)]

Decided on July 30, 2007

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

David Abdiyev, Respondent, -and- Catherine Yunatanova, Plaintiff,

against

Motor Vehicle Accident Indemnification Corporation, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered July 25, 2005. The order denied defendant's motion for summary judgment dismissing the cause of action asserted by David Abdiyev.

Order reversed without costs and motion by defendant for summary judgment dismissing the cause of action asserted by David Abdiyev granted.

Plaintiffs David Abdiyev and Catherine Yunatanova commenced the instant action against defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) to recover damages for injuries sustained when the vehicle in which they were traveling was struck by a hit and run driver (see Insurance Law § 5218). 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. [*2]

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] [3]), it was based upon the Supreme Court's threshold determination that the statutory requirements were satisfied (see Matter of Smith v Motor Veh. Acc. Indem. Corp., 33 AD2d 786 [1969]). The findings were "made solely for the purposes of th[e] 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" (id.). 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 (Insurance Law § 5218 [b] [3]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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.