Sunday, February 25, 2018

Use or Operation of Bus Found to Be Proximate Cause of Passenger's Injury for New York No-Fault Purposes

Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC
(1st Dept., 2/22/2018)

Passenger steps off a bus into a hole and falls, injuring herself.  No-fault compensable?  No, per the New York Court of Appeals in Cividanes v. City of New York. The bus was neither the proximate cause nor the instrumentality of the injury

Passenger with walker boards a bus after the bus driver activates the bus's lift device to assist the passenger.  When exiting, however, the bus driver neither lowers the bus nor again activates the lift device.  Passenger places her walker onto the street and falls while trying to exit the bus, injuring herself.  No-fault compensable? 

Yes, in the opinion of the no-fault arbitrator, master arbitrator, Supreme Court and Appellate Division, First Department:
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.  
Thus, the arbitrator and master arbitrator rationally found that the bus was a "proximate cause" of the injury and that the accident involved the "use or operation" of a motor vehicle within the meaning of Insurance Law § 5104(a).

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