This was an appeal from an order from Civil Court, Queens County (Gerald Dunbar, J.) which denied MVAICs motion for summary judgment. The Appellate Term reversed and dismissed the complaint.

Plaintiffs David Abdiyev and Catherine Yunatanova commenced the instant action against defendant MVAIC to recover damages for injuries sustained when the vehicle in which they were traveling was struck by a hit and run driver. 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 MVAICs motion, holding that the Supreme Courts 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.

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 Courts threshold determination that the statutory requirements were satisfied. The findings were made solely for the purposes of the 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.

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.

Abdiyevs 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.

Abdiyev v Motor Veh. Acc. Indem. Corp., 2007 NYSlipOp 51640(U) (App. Term, 2d Dept)