Rojas v. Motor Vehicle Accident Indemnification Corp. , 830 N.Y.S.2d 65 ( 2007 )

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 25, 2005, which granted the petition for leave to commence an action against respondent, unanimously reversed, on the law, without costs, the order vacated and the matter remanded for further proceedings.

In support of the petition, petitioner submitted an affidavit in which he states that he was injured when he was struck by an unidentified “hit and run” vehicle. Respondent, on the other hand, has opposed the petition in reliance upon a Fire Department of New York (FDNY) ambulance call report in which petitioner is said to have reported that he was injured while he was “defending [himself] and punched a man.” These evidently conflicting accounts as to the cause of petitioner’s alleged injuries raise an issue as to whether plaintiff was, in fact, injured as a result of being hit by an unidentified vehicle, that was not properly resolved without a hearing (see Matter of Utica Mut. Ins. Co. v Leconte, 3 AD3d 534 [2004]; Matter of Aetna Cas. & Sur. Co. v Smith, 100 AD2d 751 [1984]; Matter of Barbato v Motor Veh. Acc. Indem. Corp., 61 AD2d 981 [1978]). Concur— Tom, J.E, Mazzarelli, Saxe, Marlow and Catterson, JJ.