Mifsudo v. Mutual of Omaha Ins. Co.

• Decision Date: 09 April 1984
• Citation: 474 N.Y.S.2d 120,100 A.D.2d 864
• Parties: John MIFSUDO, Respondent-Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 120

474 N.Y.S.2d 120

100 A.D.2d 864

John MIFSUDO, Respondent-Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 9, 1984.

Wilson, Elser, Edelman & Dicker, New York City (William D. Hand, New York City, of counsel), for appellant-respondent.

Bruce Reznick, Brooklyn (Firestone & Harris [Alan J. Firestone], Brooklyn, N.Y., of counsel), for respondent-appellant.

Before THOMPSON, J.P., and WEINSTEIN, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover proceeds on an insurance policy, defendant appeals from so much of an order of the Supreme Court, Kings County, dated February 8, 1983, as denied its motion for summary judgment dismissing the complaint, and plaintiff cross-appeals from so much of the same order as denied his cross motion for summary judgment in his favor.

Order modified, on the law, by deleting the provision denying defendant's motion for summary judgment and substituting therefor a provision granting said motion, and dismissing the complaint. As so modified, order affirmed, with costs to defendant.

According to plaintiff, on the morning of June 25, 1975, he exited from a taxi and entered the revolving doors of the Pan Am building located at 45th Street and Park Avenue in midtown Manhattan, on his way to pick up an airplane ticket to fly to Australia via Los Angeles. At the same time, another person entered the doors from inside the building and pushed, hitting the door against plaintiff's left shoulder, and causing plaintiff to suffer excruciating pain from the impact. As a result, the upper third of the humerus bone was detached from his shoulder. Upon examining plaintiff, a physician for defendant found that the left upper extremity was free floating and could be rotated 360 degrees.

Subsequently, plaintiff commenced this action against defendant for failure to pay on an insurance policy issued by defendant which was in effect at the time. According to this insurance policy covering accidental death and dismemberment, to be entitled to recovery, plaintiff's injuries had to be incurred on a scheduled airline, at an airport premises, or on a common carrier. Plaintiff claims the injuries sustained while standing in the revolving doors to the Pan Am building are covered by the policy because the Pan Am building qualifies as an airport premises and the injuries were received before boarding an aircraft. The pertinent provision in the insurance policy provides:

"AIRPORT PREMISES; AIRPORT BUS AND LIMOUSINE SERVICE. Injuries...