The defendant Ned J. Parsekian moves for summary judgment.
Suit was instituted by the plaintiffs against the defendant Frank R. Umbach, alleging that that defendant was the owner and operator of a certain automobile which was involved in an accident with a vehicle operated by the plaintiff Patsy Lancellotti. Plaintiffs allege that they were passengers in the Lancellotti automobile and sustained certain injuries as a result of the collision.
Plaintiffs attempted to cause service of a summons and complaint to be effected on the defendant Frank R. Umbach. However, since his whereabouts are unknown he has not been served.
Plaintiffs have now amended their complaint to join as a defendant Ned J. Parsekian, the Acting Director of Motor Vehicles of the State of New Jersey, pursuant to N.J.S.A. 39:6-80, which provides the Director can be impleaded only when the provisions of N.J.S.A. 39:6-78 or N.J.S.A. 39:6-79 apply. Plaintiffs contend the Acting Director has been impleaded under the first part of N.J.S.A. 39:6-78, which provides in part:
When the death of, or personal injury to any person arises out of the ownership, maintenance or use of a motor vehicle in this
state on or after April 1, 1955, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * *." (Emphasis added)
The defendant Acting Director Parsekian contends that the statute above mentioned is explicit that all three items must be unknown before the Director can be impleaded. That is, the identity of the motor vehicle and the identity of the owner and the identity of the driver must be unknown before this section will apply. Further, defendant Parsekian contends the affidavit of plaintiffs indicates that Helen Sgainbat, one of the plaintiffs, took down the license or registration number of the vehicle that caused the accident and through this number it was ascertained that defendant Frank R. Umbach was the owner of the vehicle. From this the said defendant contends the plaintiffs are aware of at least two items of those set forth in the statute, if not all three of them.
Plaintiffs rely on statements found in Corrigan v. Gassert , 27 N.J. 227 (1958), to support their contention that it is necessary for only one of these above-mentioned items to be unknown for the statute to apply. The language relied upon is found at page 234 of 27 N.J.:
"* * * is the victim * * * accident and is unable to obtain a judgment because the identity of the motor vehicle or that of the owner or operator is unknown, the provisions of N.J.S.A. 39:6-78 to 85 specify the appropriate procedure."
This language is taken from a passage which comments on the two distinct procedures to be pursued by a claimant who seeks to recover from the Unsatisfied Claim and Judgment Fund. Where the identity of the operator or owner of the vehicle is known the provisions of N.J.S.A. 39:6-65 to 77 ...