Use and operationJuly 21, 2015
Complete Med. Care Svcs of NY, P.C. v N.Y.C. Tr. Auth., 2015 NY Slip Op 25236 (App. Term 2d Dept. 2015)
This proved to be the most interesting of the cases that I saw.
(1) “In support of the motion, defendant proffered a transcript of a hearing held pursuant to General Municipal Law § 50-h, at which the assignor testified that, as she was alighting from the rear exit of defendant’s bus in Queens, she stepped into a hole in the street with her left foot and fell. The assignor further testified that, since the incident occurred after dark, she did not see the hole before stepping into it.”
(2) “The Court held that the ” use or operation’ of the bus was neither a proximate cause’ nor an instrumentality’ that produced plaintiff’s injury” (id. at 926) “because plaintiff’s injury did not arise out of the use or operation’ of a motor vehicle (Insurance Law § 5104 [a]” (id.). Although the Court of Appeals in Cividanes interpreted the phrase “use or operation” in the context of Insurance Law § 5104, it relied upon the case of Walton v Lumbermens Mut. Cas. Co. (88 NY2d 211, 213 ), in which the Court had interpreted the expression “use or operation” of a motor vehicle in a case [*2]seeking first-party no-fault benefits under Insurance Law § 5103 (a) (1), as is the case here. In Walton, the Court stated that “first-party benefits are available only if the injury sustained arose out of the use or operation of the motor vehicle” (id. at 215), and that, while Insurance Law § 5103 does not define “use or operation,” “no-fault benefits are unavailable when a party is injured by an instrumentality other than the vehicle itself” (id.). That is, “[t]he vehicle must be the proximate cause of the injury” (id.). ”
(3) “Here, where Insurance Law § 5103 is also the applicable statute, defendant demonstrated that the assignor’s injuries were produced by her act of stepping off the bus into a hole in the street.”