Horney v. Tisyl Taxi Corp.

• Decision Date: 26 April 1983
• Citation: 93 A.D.2d 291,461 N.Y.S.2d 799
• Parties: James C. HORNEY and Lillian Horney, Plaintiffs-Appellants-Respondents, v. TISYL TAXI CORP. and Andrion Del Valle, Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 799

461 N.Y.S.2d 799

93 A.D.2d 291

James C. HORNEY and Lillian Horney, Plaintiffs-Appellants-Respondents, v. TISYL TAXI CORP. and Andrion Del Valle Defendants-Respondents-Appellants.

Supreme Court, Appellate Division First Department.

April 26, 1983.

Victor Bleiwas and Lewis I. Wolf, New York City, of counsel (Konheim, Halpern, Bleiwas & Greenberg, New York City, attorneys), for defendant-respondent-appellant Tisyl Taxi.

Melvin Pasternack, Lynbrook, for defendant-respondent-appellant Del Valle.

Lawrence H. Levinson, New York City, for plaintiffs-appellants-respondents.

Before SANDLER, J.P., and CARRO, SILVERMAN, FEIN and KASSAL, JJ.

SILVERMAN, Justice.

These are cross-appeals from a judgment of the Supreme Court in favor of plaintiff James C. Horney, after jury trial, for $15,670 ($15,000 plus interest and costs), and from an order denying said plaintiff's application to "correct" the judgment to $70,000.

Plaintiff was a passenger in a taxicab owned by defendant Tisyl Taxi Corp. and operated by defendant Andrion Del Valle. Defendant Tisyl contends that Del Valle was not its employee but rather the lessee of the taxicab.

Because the driver Del Valle objected to plaintiff's desire to smoke a cigar in his cab, plaintiff got out of the cab and at first refused to pay the 90cents which had been rung up on the meter. The driver got out to demand the fare. Rude words were exchanged about the tip, and it is plaintiff's contention that the driver struck plaintiff, and that plaintiff fell and suffered severe injuries. The driver denied striking plaintiff and testified that plaintiff struck him, and that plaintiff stumbled, presumably thus causing his own injuries. The case was submitted to the jury on a comparative negligence theory; the jury found plaintiff 45% culpable and the driver 55% culpable. The jury also found plaintiff James C. Horney's total damages to be $15,000 for pain and suffering and $55,000 for loss of earnings, for a total of $70,000. (The jury found no damage suffered by Mrs. Lillian Horney on her derivative cause of action. Although a notice of appeal was served on her behalf, this branch of the appeal is not argued in the briefs and must be deemed abandoned. Further reference to "plaintiff" refers to plaintiff James C. Horney.) Holding that the case was covered by the no-fault insurance law, the court struck the $55,000 loss of earnings recovery, presumably under Insurance Law § 673(1), and directed the entry of judgment in favor of plaintiff against both defendants for $15,000, with interest and costs.

1. Vehicle and Traffic Law § 388.

There was testimony that the driver was not Tisyl's employee but rather only a lessee. Defendant Tisyl could be liable on a respondeat superior theory only if the jury found that the driver was an employee of Tisyl acting in the scope of his employment. The court, however, did not submit this issue to the jury. Instead, the court, over objection, ruled as a matter of law that "this entire incident, the whole series of occurrences, fall within the provisi of the motor vehicle law." By this, it is clear that the court meant that the case fell within Vehicle and Traffic Law § 388, which imposes on every owner of a vehicle liability for injuries "resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise," by any person using or operating the vehicle with the owner's permission. In this the court was in error. The injury to plaintiff did not result from "negligence in the use or operation" of the automobile. There was no physical contact between the automobile and plaintiff. Accepting plaintiff's version, plaintiff was struck by the driver in a fist fight on the street outside the vehicle.

Not every injury occurring in or near a motor vehicle is covered by the phrase "use or operation". The accident must be connected with the use of an automobile qua automobile ... Where the operation or driving function of an automobile or the condition of the vehicle itself is not the proximate cause of the injury, the occurrence does not arise out of its use or operation ... The fact that the plaintiff was injured by an assault while riding as a passenger does not bring the claim within coverage since the use of the motor vehicle must be the proximate cause of plaintiff's injuries to come within the ambit of the "use or operation" clause ... United Services Automobile Assn. v. Aetna Casualty & Surety Co., 75 A.D.2d 1022, 429 N.Y.S.2d 508.

Accord Scalzo v. Vincent, 279 App.Div. 1141, 113 N.Y.S.2d 218, McConnell v. Fireman's Fund American Insurance Co., 49 A.D.2d 676, 677, 370 N.Y.S.2d 730.

Thus the judgment against defendant Tisyl based on the erroneous application of Vehicle and Traffic Law § 388 cannot stand. But as it may be that plaintiff can establish that the injury was caused to plaintiff in the scope of the driver's employment by Tisyl, a new trial is required at least as to that issue against defendant Tisyl.

The error in the application of Vehicle and Traffic Law § 388 of course did not hurt the individual defendant Del Valle. He was held responsible not as the owner of the vehicle but as the person who committed the assault.

2. No-fault insurance law.

The no-fault insurance law exempts covered persons from certain liabilities "for personal injuries arising out of negligence in the use or operation of a motor vehicle." Insurance Law § 673(1). Thus...