Barillas v. Rivera

In an action to recover damages for personal injuries, Motor Vehicle Accident Indemnification Corporation, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated July 22, 2005, as, in effect, upon reargument, adhered to its prior determination in an order dated January 21, 2005, granting the plaintiffs cross motion to compel it to defend the defendant Roy W. Luck in the action. Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, upon, in effect, reargument, the cross motion is denied, and so much of the order dated January 21, 2005 as granted the plaintiffs cross motion to compel the nonparty to defend the defendant Roy W. Luck in the action is vacated. The plaintiff failed to demonstrate that she was a “qualified” person entitled to benefits from the nonparty Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) (Insurance Law § 5202 [b]; see Insurance Law § 5208 [a] [1]; Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 10 [1973]; Kilpatrick v Utica Ave. Auto Sales, 270 AD2d 233 [2000]; Matter of Kenyon, 105 AD2d 530 [1984]). Accordingly, upon, in effect, reargument, the Supreme Court should have denied the plaintiffs cross motion to compel MVAIC to appear on behalf of and defend the defendant Roy W Luck in the action. Miller, J.P., Luciano, Rivera and Spolzino, JJ., concur.