County of Westchester v. Winstead

• Decision Date: 23 September 1996
• Citation: 231 A.D.2d 630,647 N.Y.S.2d 536
• Parties: In the Matter of COUNTY OF WESTCHESTER, et al., Appellants, v. Katherine WINSTEAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 536

647 N.Y.S.2d 536

231 A.D.2d 630

In the Matter of COUNTY OF WESTCHESTER, et al., Appellants, v. Katherine WINSTEAD, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 23, 1996.

Nesci, Keane, Piekarski, Keogh & Corrigan, White Plains (Thomas J. Keane, of counsel), for appellants.

Before ROSENBLATT, J.P., and RITTER, COPERTINO and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Westchester County (Rabin, J.H.O.), dated October 13, 1995, which inter alia, denied the petition and dismissed the proceeding.

ORDERED that the order is affirmed, without costs or disbursements.

The respondent was allegedly injured while a passenger on a bus owned by the County of Westchester when it was struck by a "bobcat"--a machine used for plowing snow or in connection with landscaping work. The bobcat was uninsured, and the respondent served a demand for uninsured motorist arbitration upon the petitioners. The petitioners commenced the instant proceeding to stay the arbitration on the grounds, inter alia, that the bobcat was neither a "motor vehicle", nor was it being operated upon a "public highway", as those terms are defined in the Vehicle and Traffic Law. Following a hearing, the court concluded, contrary to the petitioners' contentions, that the bobcat was, in fact, a motor vehicle which was being operated upon a public highway at the time of the accident, and denied the petition. We affirm.

Vehicle and Traffic Law § 125 defines motor vehicle, in pertinent part, as "[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power". Vehicle and Traffic Law § 134 defines the term "public highway" as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way". A sidewalk is within the ambit of this section (see, People v. Marcus, 19 A.D.2d 813, 243 N.Y.S.2d 463).

At the hearing the owner-operator of the bobcat described it as a four-wheel-drive machine weighing approximately 3500 pounds, and powered by a diesel motor. He further testified that at the time of the accident the motor was running, and he was moving the machine "on the sidewalk" when it "slid right into the side of the bus", which was stopped on the adjacent street. Under these circumstances, the court correctly concluded that the bobcat...