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]).”
One Response
THe latest in a troubling series of decisions that leave it open to question whether the First Department understands use or operation within a no-fault context. While the Court is absolutely correct regarding the fact that an excavator outside of a contract site is a motor vehicle, the relevant use or operation here was not of the excavator, but of the vehicle the plaintiff was driving. The standard is not merely “use or operation”, it is “use or operation of a motor vehicle AS SUCH”; motor vehicle qua motor vehicle. Here, the excavator was not being operated, and the fact that it was the instrumentality that caused the injury is being ridiculously conflated with its inherent nature as a motor vehicle. In other words, if the excavator had been anything else – let’s say a condensed pile of metal and debris of similar mass and dimensions – and Plaintiff’s vehicle struck it, the injuries would have been similar. The fact that it was an excavator was entirely incidental.
This and the earlier absurd case involving tripping over luggage outside of a parked bus are very alarming. Otherwise, no comment.