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Use and operationFebruary 24, 2018

Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC,  2018 NY Slip Op 01260 (1st Dept. 2018)

“Contrary to petitioner’s arguments, the facts of this case are distinguishable from those in Cividanes v City of New York (20 NY3d 925 [2012]), in which the Court of Appeals found that benefits were not available under the no-fault Insurance Law because the plaintiff’s injury did not arise out of the “use or operation of a motor vehicle” (Insurance Law § 5104[a]). In that case, the plaintiff exited a stopped bus and fell when she stepped into a hole in the street. The Court determined that the bus was neither a “proximate cause” nor an “instrumentality” that produced her injury (id. at 926 [internal quotation marks omitted]; see also Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 [1996]).

Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.”

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I do not buy this at all.  The cited to case (civadenes) notes that when you step off a bus and get hurt, there is no coverage.  Same facts here, except the lift device was not activated.  As a college friend during a drinking game would say: “I call bull****”.  I could not resist.

One Response

  1. Nathan says:

    There’s another issue I have with this outcome, The Court denies de novo review because the lower award was rational. This is entirely backwards, as the merits of the lower award are irrelevant as long as the award exceeds $5,000 dollars a party gets de novo review. This was the exact same issue on Encompass v. Rockaway, in which the Supreme Court said the award was rational so it denied de novo review. The (same) Appellate Division reversed based upon the statute’s clear language as to the $5,000 threshold. (http://nycourts.gov/reporter/3dseries/2016/2016_01921.htm)

    part of the Court’s problem here may be attributable to the fact that the application was brought by Petition with request for de novo review as an alternative relief (??) rather than as a DJ complaint, but that’s not the issue the Court raises.

    I would not be surprised to see this taken up to the Court of Appeals.

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