Vega v. Motor Vehicle Accident Indemnification Corp. , 59 A.D.2d 759 ( 1977 )

In a proceeding pursuant to section 618 of the Insurance Law for permission to bring an action against the respondent to recover damages for personal injuries and wrongful death, the appeal is from an order of the Supreme Court, Kings County, dated July 15, 1974, which denied the application. Order reversed, with $50 costs and disbursements, and proceeding remitted to Special Term for further proceedings in accordance herewith. Special Term erroneously relied on hearsay statements contained in a police report as to how the decedent was killed (see Richardson, Evidence [Prince, 10th ed], § 299). Accordingly, a hearing is mandated to determine by competent proof what actually happened. If, after the hearing, however, it is determined that the decedent actually was hitching onto the back of the vehicle and lost his grip, then the application must be denied (see Urena v Motor Vehicle Acc. bid. Corp., 42 AD2d 888). Cohalan, J. P., Titone, Hawkins and Suozzi, JJ., concur.