McConnell v. Fireman's Fund Am. Ins. Co.

• Decision Date: 18 July 1975
• Parties: Lawrence A. McCONNELL, Appellant, v. FIREMAN'S FUND AMERICAN INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 730

370 N.Y.S.2d 730

49 A.D.2d 676

Lawrence A. McCONNELL, Appellant, v. FIREMAN'S FUND AMERICAN INSURANCE COMPANY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

July 18, 1975.

Rossi, Cohen & Durso, P.C., Samuel A. Durso, Utica, for appellant.

Carl J. Cochi, Utica, for respondent.

Before MARSH, P.J., and MOULE, MAHONEY, DEL VECCHIO and WITMER, JJ.

MEMORANDUM:

Plaintiff appeals from an order granting defendant's motion for summary judgment.

The facts are not in dispute. Plaintiff, on the evening of February 12, 1974 while operating a snowmobile and apparently due to a mechanical malfunction, struck a locked and unoccupied automobile owned by Josephine Pantola which was parked in the street in front of her residence. The automobile was insured by defendant under a policy containing the Standard New York Mandatory Personal Injury Protection Endorsement which provided for payment of 'first party benefits' to persons, other than occupants of another automobile, for loss arising out of the use or operation in the state of such motor vehicle (Insurance Law § 672(1)(a)). Upon defendant's rejection of plaintiff's claim for such benefits on the ground that the loss did not arise out of the use or operation of the insured vehicle, this litigation ensued. Upon the parties' cross motions for summary judgment Special Term granted defendant's motion, determining that plaintiff's loss did not arise out of the use or operation of the insured vehicle, within the statutory meaning of said requirement which entails 'some on-going activity' relating to the subject vehicle.

The sole question here presented, which would appear to be a case of first impression since enactment of this state's 'Comprehensive Automobile Reparations Act', commonly known as the 'No-Fault Insurance Law', is whether a vehicle parked in front of the insured owner's residence on a public street is being 'used' within the meaning of said section 672(1)(a), Insurance Law.

The phrase 'use or operation' contained in various statutory enactments of this state pertaining to motor vehicles is not without precedent and established decisional interpretation. Section 253 and predecessor sections of the Vehicle and Traffic Law pertain to process service amenability resulting from use or operation of a motor vehicle in this state by a non-resident (Aranzullo v. Collins Packing Co., 18 A.D.2d 1068, 239 N.Y.S.2d 398, affd., 14 N.Y.2d 578, 248 N.Y.S.2d 874, 198 N.E.2d 255; Wahler v. Thompson, 36 Misc.2d 847, 234 N.Y.S.2d 105, mod., 26 A.D.2d 895, 274 N.Y.S.2d 862, app. withdrawn, 20 N.Y.2d 765, 284 N.Y.S.2d 72, 230 N.E.2d 718; Landolphi v. Wilhelmsen, 39 Misc.2d 950, 241 N.Y.S.2d 942). Section 388 and predecessor sections of the Vehicle and Traffic Law pertain to vicarious liability of owner resulting from use or operation of a motor vehicle (Dittman v. Davis, 274 App.Div. 836, 80 N.Y.S.2d 737, affd., 299 N.Y. 601, 86 N.E.2d 175; Elfeld v. Burkham Auto Renting Co., 299 N.Y. 336, 87 N.E.2d 285; Eckert v. Farrington Co., Inc., 262 App.Div. 9, 27 N.Y.S.2d 343, affd., 287 N.Y. 714, 39 N.E.2d 932; Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389; Feitelberg v. Matuson, 124 Misc. 595, 208 N.Y.S. 786). In addition, pertinent precedents interpreting insurance coverage provisions embodying the...