By notice of petition and petition, filed on January 4, 2019, Jhonny Guerrero (hereinafter petitioner) commenced the instant special proceeding seeking an order allowing him to bring a direct action against the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) pursuant to Insurance Law § 5218. MVAIC neither appeared nor responded to the petition.

The petitioner's papers consist of notice of petition, petition, affirmation of counsel, and nine annexed exhibits labeled A though I. Exhibit A is a court order dated December 14, 2018. The December 14, 2018 order allowed the petitioner to withdraw a previously filed petition without prejudice and extended his time to refile it until January 4, 2019 in order to correct certain discrepancies. Exhibit B is a copy of the aforementioned originally filed petition that the petitioner was permitted to withdraw. Exhibit C is a letter from MVAIC dated August 16, 2018 informing the petitioner that it deemed him to be a "covered person." Exhibit D is a copy of an MV-104, the police accident report of petitioner's subject accident. Exhibit E is a copy of the Fire Department of New York prehospital care report dated December 25, 2017 pertaining to the petitioner's subject accident. Exhibit F is described as the no fault denial and reimbursement check pertaining to the subject accident. Exhibit G is a copy of the petitioner's notice of intent to make a claim for MVAIC benefits. The notice of intent was subscribed by the petitioner before a [*2]commissioner of deeds named Daniel Puerta. Exhibit H is the affidavit of Daniel Puerta averring that he took the petitioner's oath on December 18, 2018 on the aforementioned notice of intent. Exhibit I is a letter dated January 3, 2019 from MVAIC advising the petitioner's counsel that they received his claim for the subject accident of December 16, 2017 and that they have determined that the petitioner has met the criteria for a "covered person." The letter also advised that its prior letter of August 16, 2018 had been updated to reflect the correct date of loss as December 16, 2017.

The notice of petition, petition and supporting documents (hereinafter the commencement papers) allege, among other things, the following facts. On December 16, 2017, at 8:25 am, petitioner was riding a bicycle northbound on Morgan Avenue near its intersection with Johnson Avenue when a motor vehicle that was turning left struck and injured him and then fled the scene (hereinafter subject accident). A police accident report of this incident was prepared and filed. On December 16, 2017, members of the New York City Fire Department Emergency Medical Services crew brought the petitioner to Elmhurst Hospital. On December 18, 2017, petitioner filed a notice of claim with MVAIC. At that time, petitioner incorrectly gave the date of the subject accident as November 16, 2017. Petitioner was able to correct with MVAIC the date of the subject accident from November 16, 2017 to December 16, 2017. MVAIC sent a letter to petitioner advising that the date of the subject accident was corrected and updated and informed the petitioner that MVAIC had determined him to be a "qualified person."

The New York State Legislature created MVAIC to "provide no-fault benefits for qualified persons for basic economic loss arising out of the use and operation in this state of an uninsured motor vehicle" (Englington Medical, P.C. v Motor Vehicle Acc. Indem. Corp., 81 AD3d 223 [2nd Dept 2011] citing Insurance Law § 5201).

The Legislature's purpose in establishing MVAIC was to afford injured parties the same protection that they would have had the tortfeasor involved in a motor vehicle accident been covered by insurance (Englington Medical, P.C., 81 AD3d 223 citing Morisi v Motor Veh. Acc. Indem. Corp., 19 AD2d 727 [2nd Dept 1963]).

Insurance Law § 5201 (b) (2) provides that the purpose of MVAIC is to provide innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, through no fault of their own, by unidentified motor vehicles which leave the scene of the accident.

Insurance Law § 5218 permits suit directly against MVAIC where a person has been injured by an automobile and cannot establish the identity of the owner and operator or that the vehicle used was without the owner's consent by an unknown person (Brandon v Motor Veh. Acc. Indem. Corp., 233 AD2d 604 [3rd Dept1996]).

Insurance Law § 5218 (a) sets forth in pertinent part the procedure for commencing an action against MVAIC in hit and run cases:

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 [*3]vehicle was at the time of the accident, in the possession of the 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.

Insurance Law § 5202 (b) requires that a petitioner seeking leave of court to commence an action against MVAIC has the initial burden of demonstrating that he or she is a qualified person within the meaning of MVAIC definitions statute and by making an evidentiary showing that he or she has satisfied certain other statutory requirements.

This Court has held that the statutory provisions creating and regulating MVAIC should be liberally construed to serve those ends (Englington Medical, P.C., 81 AD3d 223 citing Matter of Dixon v Motor Veh. Acc. Indem. Corp., 56 AD2d 650, 651 [2nd Dept 1977]).

A notice of petition and petition seeking leave to sue MVAIC is a special proceeding. In a special proceeding, generally, if no triable issues of fact are raised, the court is empowered to make a summary determination (see CPLR 409 [b]). However, if triable issues of fact are raised, an evidentiary hearing must be held (see CPLR 410) (Hernandez v MVAIC, 120 AD3d 1347 [2nd Dept 2014]).

The petitioner met the statutory requirements to show that he is a qualified person within the meaning of Insurance Law § 5202 (b). Although there was an initial discrepancy of the date of the subject accident, the petitioner was able to produce an FDNY EMS prehospital care report that demonstrates that the date the petitioner was injured as a result of the hit and run was December 16, 2017.

Furthermore, correspondence from MVAIC has demonstrated that it determined the petitioner to be qualified to be a "covered person" and that the petitioner's inadvertent mistake of the date of the subject accident did not affect his claim. Although duly served with the notice of petition and petition, MVAIC did not appear or submit opposition to the petition. Consequently, MVAIC did not raise any triable issues of fact.

Accordingly, Jhonny Guerrero's application pursuant to Insurance Law § 5218 is granted and petitioner is hereby granted leave to commence an action against MVAIC to recover damages for personal injuries allegedly sustained in the subject accident.

The foregoing constitutes the decision and order of this Court.