Use and Operation

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

FACTS:

“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.”

SECOND DEPARTMENT VIEWPOINT:

“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 ), 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.”

WHY THE SECOND DEPARTMENT IS WRONG

“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, 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”

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Legal Update (February 2026): Since this 2012 post discussing “use and operation” coverage under Vehicle and Traffic Law § 388, there may have been subsequent amendments to no-fault insurance regulations, updates to coverage determination guidelines, or new appellate decisions that have refined the analysis of proximate causation in bus-related accidents. Practitioners should verify current statutory provisions and recent case law developments when evaluating use and operation coverage issues.