Petitioner moves by order to show cause and pursuant to Insurance Law §5218 for leave to bring an action against the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC). Respondent opposes the motion.

Petitioner is seeking to recover for personal injuries he allegedly suffered on July 20, 2000, while riding his 1982 Honda motorcycle at the intersection of Sunnyside Road and Barret Street in Kings County. At about 7:00 p.m. that Thursday evening, petitioner was struck and knocked down by a 1994 Grey Nissan owned and operated by Constance McDuffie. New York City Police Officer Nunez, a member of the seventy fifth precinct, responded to the scene. He conducted an investigation an obtained the parties license, registration and insurance information. McDuffie presented evidence of automobile insurance coverage by Preferred Mutual Life. Petitioner presented no evidence of insurance and was issued three summons for violations of Vehicle and Traffic Law §§§509(1) unlicensed operation of a motor vehicle; 410(1) unregistered motor vehicle and 319(1) uninsured motor vehicle. Police Officer Nunez later completed and filed with the New York State Department of Motor Vehicles an MV 104AN police accident report.

By letter dated April 23, 2002, petitioner's attorney notified the respondent that the McDuffie vehicle was apparently uninsured and that the petitioner would be making a claim for all no fault and uninsured benefits. By letter dated May 16, 2002, Preferred Mutual Insurance Company informed petitioner's counsel that the policy of insurance it had issued to Constance McDuffie under policy number PPA0100561198 had been cancelled on February 6, 2002. On July 30, 2002, petitioner completed and submitted a Notice of Claim form to MVAIC setting forth, under oath, the particulars of the accident and his injuries. Petitioner informed respondent of his Brooklyn residence, his lack of insurance coverage, and the fact that the police were [*2]notified the same date of the accident.

Respondent contends that petitioner was operating his motorcycle without insurance, and is therefore unqualified to bring an action against MVAIC pursuant to Article 5218(b)(3) of the New York State Insurance Law.

Article 52 § 5208(a)(1) provides, in pertinent part, that a qualified person having a cause of action due to bodily injury must file with MVAIC an affidavit of claim within 180 days of the accrual of a cause of action alleging certain enumerated facts.

Article 52 § 5218(b) provides that the court may summarily make an order permitting the action against MVAIC when after a hearing it is satisfied that:

(1) the applicant has complied with the requirements of section five thousand two hundred eight of this article;

(2) the applicant is a qualified person;

(3) the injured or deceased person was not at the time of the accident operating an uninsured motor vehicle or operating a motor vehicle in violation of an order of suspension or revocation;

(4) the applicant has a cause of action against the operator or owner of the motor vehicle; (5) all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle.

The legislature's purpose in establishing MVAIC was to afford injured parties the same protection they would have if the tortfeasor were covered by insurance. The legislature enacted theses statutory protections to benefit victims of uninsured accidents and they should be liberally construed to serve rather than defeat those ends (Dixon v. MVAIC 56 AD2d 650 at 651 [2nd Dept. 1971]) see also (Pomerico v. Elrac Inc. 1 Misc 3d 908 [NY Civ. Ct. 2004] and Romano v. MVAIC 4 Misc 3d 1001A [Kings Sup. Ct. 2004]) .

It is undisputed that plaintiff, an eighteen years old, Brooklyn resident, was operating an uninsured motorcycle at the time of the accident. Pursuant to Article 5218(b)(3), the petitioner is not a qualified person and may not commence an action against MVAIC if the vehicle he was operating was uninsured. However, this would only be correct if the vehicle was required to have insurance in the first place. Not all motorcycles require insurance (People v. Miller 196 Misc 2d 591 [NY Just Ct 2003]. Vehicle and Traffic Law §123 defines a motorcycle as a motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, excluding a tractor. Pursuant to Vehicle and Traffic Law §312, all owners of motor vehicles are required to have liability insurance while operating their motor vehicle. However, pursuant to Vehicle and Traffic Law §2265 (3), an owner of a class C limited use motorcycle, which has a maximum performance speed of not more than twenty miles per hour, is exempt from these insurance requirements. Thus, whether a motorcycle requires insurance depends on its use and classification.

It is the petitioner's burden to prove that he is a qualified individual (Troches v. MVAIC 171 AD2d 873 [2nd Dept 1991];see also George v. MVAIC 77 Misc 2d 399 {NY Sup 1974). [*3]Under the facts and circumstance of this case, it was petitioner's burden to establish that his motorcycle was exempt from the liability insurance requirements applicable to motor vehicles. Although the parties were granted several adjournments to supplement the pleadings on this very issue, the petitioner failed to prove his vehicle was exempt from insurance requirements. By failing to meet this burden, petitioner is barred from bringing an action against MVAIC because he was operating an uninsured motor vehicle at the time of the accident contrary to the requirements of the New York State Insurance Law § 5218(b)(3). Petitioner's request for an order, granting him leave to bring an action against MVAIC is denied.

The foregoing constitutes the decision and order of the court.

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J.S.C.