19 A.D.2d 832 | N.Y. App. Div. | 1963
In a proceeding pursuant to statute (Insurance Law, § 618), by petitioners, as the administratrices of a decedent’s estate, for the court’s permission to institute an action against the Motor Vehicle Accident Indemnification 'Corporation, to recover damages for the decedent’s wrongful death and for conscious pain and suffering, the corporation appeals from an order of the Supreme Court, Kings County, entered October 24, 1962 after a hearing, which, on reargument, granted the application. Order reversed on the law and the facts, without costs, and application denied, without costs. Findings of fact which may be inconsistent herewith are reversed and new findings are made as indicated herein. The record discloses substantial evidence of identification of the second successive vehicle operated by a hit-and-run driver, which was caused to run over petitioners’ intestate. Under the circumstances, an action against the registered owner and the actual owner and apparent operator of the vehicle in the vicinity should he commenced and vigorously prosecuted. Only in the event of such prosecution, if unsuccessful for lack of identity, should leave to sue the appellant corporation (MVAXC) be considered, provided application for such relief be made within the time prescribed by statute (Insurance Law, § 618). (C£. Matter of Buiz v. MVA1C,