Use and Operation

Lazzari v Qualcon Constr., LLC, 2018 NY Slip Op 04082 (1st Dept. 2018)

I am a use and operation fan.  It is the one issue that any practitioner who is involved in this area of law always has to question.  The gray areas are huge.  This case – probably a fact pattern few who practice on this field will deal with – just another example.

And what makes this even more remarkable is that Plaintiff will want use and operation not to be found for all purposes in this case because he would have “use and operation” for his own vehicle and will collect no-fault benefits regardless of the outcome in this matter.  The usual fact pattern involves a pedestrian who makes contract with a vehicle or an occurrence that is proximately caused by the vehicle.

“Initially, we agree with defendants that the serious injury threshold applies because the action is between “covered persons” (Insurance Law §§ 5104[a], 5102[j]). Defendants’ excavator does not fall under the “self-propelled caterpillar or crawler-type equipment while being operated on the contract site” exclusion to the term “motor vehicle” (Vehicle and Traffic Law § 311[2]). While it is a “self-propelled caterpillar or crawler-type equipment” (see Masotto v City of New York, 38 Misc 3d 1226[A] n 5 [Sup Ct, Kings County 2013]), it was being operated on a “public highway,” adjacent to and encroaching into the road on which plaintiff was driving (see Vehicle and Traffic Law §§ 125, 134). In addition, the accident arose out of the “use or operation” of the excavator, as the excavator was the “instrumentality” that produced plaintiff’s injuries (see Cividanes v City of New York, 95 AD3d 1 [1st Dept 2012], affd 20 NY3d 925 [2012]; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 [1996]). The fact that it was not being operated and was unattended at the time of the accident does not preclude application of the statute, as it was only temporarily parked during ongoing construction work (see Trentini v Metropolitan Prop. & Cas. Ins. Co., 2 AD3d 957 [3d Dept 2003], lv dismissed 2 NY3d 823 [2004]; cf. Wooster v Soriano, 167 AD2d 233 [1st Dept 1990]).”

Use and operation

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.”


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.

Coverage – use or operation

Peter Pan Bus Lines, Inc. v Hanover Ins. Co., 2018 NY Slip Op 00467 (1st Dept. 2017)

“The insurance policy issued by defendant to Peter Pan provides coverage for damages owed because of, inter alia, ” bodily injury’ … caused by an accident’ and resulting from the ownership, maintenance or use of a covered auto.'” Regardless of whether the plaintiff in the underlying action, having arrived at her destination on a Peter Pan bus and seen the driver unloading the passengers’ luggage, tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase, her accident resulted from Peter Pan’s use of the bus, a covered auto, and defendant is obligated to defend and indemnify Peter Pan in the underlying action”

Use and occupation

This case is interesting.  It was always understood that when someone exited their vehicle for a limited purpose and another vehicle hit that person, first-party coverage should be provided by the carrier of their own vehicle.

But there was also a belief that the person who exited the said vehicle was also a pedestrian and the insurance carrier of the vehicle that hit said person would also be liable for first-party benefits.  Nakhla tells us otherwise.  This is a must read for when you get the inevitable use and operation question.

Matter of Government Empls. Ins. Co. v Nakhla, 2016 NY Slip Op 04219 (2d Dept. 2016)

(1) “ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, those branches of the petition which were to join PSK Hacking Corp., EKAM Transportation, and American Transit Insurance Company as additional respondents to the proceeding and to temporarily stay arbitration pending a hearing on the relative liability of the petitioner and American Transit Insurance Company are granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.”

(2) “On July 17, 2012, Peter Nakhla was driving a taxicab owned by PSK Hacking Corp., registered to EKAM Transportation, and insured by American Transit Insurance Company (hereinafter American Transit). Nakhla was stopped at an intersection when another vehicle struck the taxicab in the rear. When Nakhla exited the taxicab to look for damage to the taxicab, the offending vehicle drove away and collided with Nakhla, who was now outside the taxicab. The offending vehicle left the scene and is unidentified.”

(3) “Although Nakhla’s personal vehicle was not involved in the accident, Nakhla qualified for SUM coverage under the GEICO policy insuring his personal vehicle under the provision which provides coverage for the named insured. However, the priority of coverage provision in GEICO’s policy provided that the uninsured motorist or SUM coverage, if any, under the policy insuring the vehicle occupied by him was to be applied first, and prohibited the stacking of policies.”

(4) “Thus, the crucial issue of fact in this case is whether Nakhla occupied his taxicab at the time of the second impact and, therefore, whether the policy limits of American Transit, which insured the taxicab, should be applied first. GEICO’s policy defines “occupying” as “in, upon, entering into, or exiting from a motor vehicle”—a definition taken from Insurance Law § 3420(f)(3), which defines occupying as “in or upon or entering into or alighting from” a vehicle. The question is whether “a departure from a vehicle is occasioned by or is incident to some temporary interruption in the journey and the occupant remains in the immediate vicinity of the vehicle and, upon completion of the objective occasioned by the brief interruption, he intends to resume his place in the vehicle” (Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 10-11). Here, GEICO established that Nakhla was an occupant of the taxicab at the time of the second impact through the submission of Nakhla’s examination under oath testimony, which indicated that he alighted from the taxicab after the first impact to determine whether it had been damaged




Use and operation

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 [1996]), 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.”

On the motorcycle and hit again – Is there coverage?

Boyson v. Kwasowsky, 2015 N.Y. Slip Op. 03964 (4th Dept. 2015)

Facts: Woman (a passenger) is dropped from motorcycle.  Vehicle that motorcycle avoided from hitting collided with the motorcycle, and the motorcycle went into the woman.  Woman sought no-fault benefits from vehicle that collided into motorcycle.
Question: Did this no-fault carrier (Kemper and Farm Family) have to provide coverage?
Answer: No.
(1) Case law in New York does not address the question whether a person in plaintiff’s position, who sustains injury after being thrown from a motorcycle, nevertheless continues “occupying” the motorcycle, and authority from other jurisdictions on that question is divided. Courts in other jurisdictions have held that the injured person continued to occupy the motorcycle for no-fault insurance purposes after being thrown from it.    Other courts have held that the injured motorcycle operator or passenger ceased occupying the motorcycle after being thrown from it.

(2) Here, however, plaintiff was injured by an impact with the motorcycle she was occupying, immediately following her accidental ejection from it. Her ejection, moreover, was the result of Boyson’s attempt to avoid a collision with the very pickup truck that propelled the motorcycle in plaintiff’s direction. Given those circumstances, we conclude that there was a single accident and that plaintiff was continuously “occupying” the motorcycle within the meaning of the exclusions of the Kemper and Farm and Family insurance policies. Although plaintiff was briefly separated from the motorcycle during the incident, she remained “vehicle oriented.” Her separation from the motorcycle did not transform her status from an occupant of the motorcycle to a pedestrian during the brief interval between striking the ground and being struck by the motorcycle.

(3) We therefore agree with the court that plaintiff is not entitled to first-party no-fault insurance benefits under the Kemper and Farm and Family insurance policies

The buckling knee when exiting

 Gonzalez v American Commerce Ins. Co., 2015 NY Slip Op 00494 (2d Dept. 2015)

“Section 5103 of the Insurance Law, part of the “Comprehensive Motor Vehicle Insurance Reparations Act,” which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle “for loss arising out of the use or operation . . . of such motor vehicle” (Insurance Law § 5103[a][1]). Where a plaintiff’s injuries from an accident were produced other than as a result of the use or operation of the vehicle itself, no-fault first-party benefits are not available (see Cividanes v City of New York, 20 NY3d 925, 926; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214). “Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use” (Walton [*2]v Lumbermens Mut. Cas. Co., 88 NY2d at 215).

Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law (see id. at 216; see also Cividanes v City of New York, 20 NY3d at 926). The plaintiff testified at her examination under oath, the transcript of which she submitted in support of her motion, that she simply fell while exiting the subject vehicle and that her knee “gave way.” Moreover, the plaintiff’s affidavit similarly indicated that she just fell without attributing her accident to the use or operation of the subject vehicle.

The defendant, however, established, prima facie, that the plaintiff’s alleged injuries did not arise from the use or operation of a vehicle (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 216; Hammond v GMAC Ins. Group, 56 AD3d 882, 883; Santo v Government Empls. Ins. Co., 31 AD3d 525, 526; Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890; see also Cividanes v City of New York, 20 NY3d at 926). In support of its cross motion, in addition to the transcript of the plaintiff’s examination under oath, the defendant submitted the plaintiff’s application for no-fault benefits and her signed statement concerning the circumstances of the accident, in which she consistently described the accident as occurring when her right knee “buckled” while she was getting out of the car, causing her to fall to the ground. In opposition, the plaintiff failed to raise a triable issue of fact.”

So assuming that there was a premises liability claim, there would not be a threshold issue since no fault benefits were not paid.



Use, Operation and proximate cause liberally construed to afford coverage

Kesick v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 03366 (3d Dept. 2013)

“In June 2007, plaintiff — a State Trooper, licensed registered nurse and paramedic — responded to a 911 call for assistance following a two-vehicle accident that occurred when Joseph Prindle’s vehicle struck Ralph Williams’ vehicle from behind, causing Williams’ vehicle to flip over. Upon plaintiff’s arrival at the scene of the accident, Williams was trapped inside his vehicle and complained of pain in his chest, hip and neck. Once the fire department arrived and removed the roof of the vehicle with the Jaws of Life, plaintiff entered the vehicle and stabilized Williams’ neck. While he and two other individuals were lifting Williams out of the vehicle, plaintiff injured his right shoulder.”

…Now the Courts tells us that (1) There was an accident; (2) The accident occurred while the vehicle was being used and occupied; and (3) The use of the vehicle wast he proximate cause of plaintiff’s injury. Thus, there is SUM coverage.  The issue of PIP coverage was never raised since Plaintiff collected Workers Compensation Benefits; but, the analysis should be no different.

Here is the rest of the decision:


Plaintiff invokes the doctrine of danger invites rescue to establish the requisite causal connection between the motor vehicle accident and his injuries. The “danger invites rescue” doctrine imposes liability upon a defendant who, “by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid” (Provenzo v Sam, 23 NY2d 256, 260 [1968]; see Wagner v International Ry. Co., 232 NY 176, 180 [1921]; Gifford v Haller, 273 AD2d 751, 752 [2000]). In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril (see Provenzo v Sam, 23 NY2d at 261; Carney v Buyea, 271 App Div 338, 342 [1946]). The reasonableness of a decision to intervene is generally a question for the factfinder (see O’Connor v Syracuse Univ., 66 AD3d 1187, 1191 [2009], lv dismissed 14 NY3d 766 [2010]; Gifford v Haller, 273 AD2d at 752; see also Hughes v Murnane Bldg. Contrs., Inc., 89 AD3d 1507, 1508 [2011]).

In the instant matter, plaintiff’s claims that Williams was injured as a result of the accident caused by Prindle’s negligent operation of his vehicle and that plaintiff was injured in the process of rescuing him are uncontroverted. Plaintiff’s affidavit established that he was directed to respond to the accident and was the first responder on the scene with medical training. When plaintiff spoke to Williams, he complained of extreme pain in his hip, chest and neck. Based upon his medical training, plaintiff knew the importance of stabilizing Williams’ neck to prevent further injury. Viewing this evidence in a light most favorable to plaintiff, we cannot conclude, as a matter of law, that his belief that Williams was in peril was unreasonable (see Villoch v Lindgren, 269 AD2d 271, 273 [2000]).

Moreover, if the facts here warrant application of the danger invites rescue doctrine, plaintiff’s injuries were not so remote in either time or space to the use of Prindle’s automobile as [*3]to preclude a finding of proximate cause as a matter of law. There is no dispute that Prindle’s negligent use of his vehicle directly caused the accident that led to Williams’ injuries which, in turn, led to plaintiff’s intervention. Considering the open question of the applicability of the danger invites rescue doctrine and liberally construing the provisions of the SUM policy in plaintiff’s favor, Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint (see Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d at 741; compare Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 597).

MVAIC failed to disprove that the accident was the cause of the injuries

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50578(U)(App. Term 2d Dept. 2012)

“MVAIC contends that there is an issue of fact as to whether plaintiff’s assignor’s injuries were the result of a motor vehicle accident. MVAIC’s sole proof in support of its contention consisted of an uncertified copy of a police report, which merely recorded a hearsay statement. Contrary to MVAIC’s contention, this showing was insufficient to demonstrate the existence of a triable issue of fact…(cf. Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 [1979]).”

The first sentence from the above passage, along with the cite to Gohlson, leads me to believe that the hearsay statement consisted of a witness saying that the motor vehicle was not the proximate cause of the injuries, taking this case out of the realm of no-fault.  Since this hearsay statement was not (1) an admission, (2) a police officer’s observation, or (3) pedigree information that the police officer took , the record needed to be certified in order to contain admissible evidence, sufficient to withstand a summary judgment motion.

This was not done, and another loss scored against MVAIC

Five Boro Psychological Servs., P.C. v MVAIC

Use and Operation

Cividanes v City of New York, 2012 NY Slip Op 02179 (1st Dept. 2012)


“This dispute arises from an accident that occurred on the morning of May 28, 2008. Plaintiff was allegedly injured as she exited a bus owned and operated by defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants). Plaintiff testified at a General Municipal Law § 50-h hearing that as she exited the rear of the bus, she “stepped off the last step into a hole and fell.” She stated that the bus did not pull completely into the bus stop; she was let out “in front of the bus stop.” The bus continued on its route. She described the hole into which she stepped and fell as being “pretty far away from the curb;” while the front of the bus “pulled about a foot away from the curb,” the “back of the bus was on an angle, so it was further away from the curb.”


“Although is unclear what the Court meant when it stated that the plaintiff was not completely outside of the bus when the accident occurred, to the extent the decision in Manuel reaches a contrary conclusion under seemingly similar circumstances to this case, we decline to follow it as inconsistent with Walton. In Manuel, the Court seems to be conflating negligence during the use of a vehicle with the additional requirement of the No-Fault Law that the vehicle itself be the proximate cause of the victims’s injuries. The terms, however, are not synonymous. Indeed, in Argentina v Emery World Wide Delivery Corp. (93 NY2d 554 [1999]), the Court of Appeals highlighted the differences, in distinguishing Vehicle and Traffic Law § 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive “use or operation” of their vehicles, with the No-Fault Law. In Argentina, the Court held that under Vehicle and Traffic Law § 388(1) the vehicle need not be the proximate cause of the victim’s injury before the vehicle’s owner may be held liable, thereby distinguishing Walton, which requires that the vehicle be the proximate cause of the victim’s injuries to trigger the No-Fault Law.”


“In Manuel, however, the Second Department considered the bus driver’s positioning of the bus next to a hole in the street, when he pulled over at the bus stop, to be a sufficient predicate to trigger the No-Fault Insurance Law. Of course, that conduct would be sufficient to trigger section 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive use of their vehicles. But under Walton, this is not sufficient to trigger the No-Fault Law, which contains the additional requirement that the vehicle be the proximate cause of the injury (cf. Travelers Property Cas. Co. v Landau, 27 AD3d at 477-478); Matter of New York Cent. Mut. Fire Ins. Co. (Hayden), supra, 209 AD2d 929). We thus hold, [*8]that liability for the injuries sustained from a fall in a hole after alighting from a bus are more properly addressed outside the area of the No-Fault Law”