Motor Vehicle Acc. Indemnification Corp. v. Oppedisano

• Decision Date: 10 June 1963
• Citation: 241 N.Y.S.2d 613,39 Misc.2d 857
• Parties: MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Petitioner, v. Giuseppe OPPEDISANO, Respondent.
• Court: New York Supreme Court

Page 613

241 N.Y.S.2d 613

39 Misc.2d 857

MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Petitioner, v. Giuseppe OPPEDISANO, Respondent.

Supreme Court, Special Term, Nassau County, Part I.

June 10, 1963.

Rivkin & Leff, Freeport, for petitioner.

Morris Feldman, Jamaica, for respondent.

DANIEL G. ALBERT, Justice.

This motion to stay a demand for arbitration is predicated on the theory that the respondent failed to demonstrate that the personal injuries sustained by him resulted from actual physical contact with a 'hit-and-run' car.

On February 3, 1963, the respondent was driving his vehicle on Glen Cove Road in Nassau County, New York, when his car skidded on the icy pavement and plowed head long into a snow bank at the edge of the road. The car remained in that position for about five minutes as the respondent attempted to remove the snow from about the right front wheel. While the respondent was so engaged, an unidentified vehicle struck the rear end of his car, and propelled it over his body. The respondent thereafter filed due and timely notice of intention to make claim against petitioner, Motor Vehicle Accident Indemnification Corporation, for the injuries sustained by him, and in the course of such proceeding served a demand on petitioner to arbitrate his claim. The petitioner now moves to vacate the demand.

The respondent in this proceeding is an 'insured' person who derives his rights from the uninsured motorist endorsement attached to the automobile liability insurance policy covering the vehicle he was operating at the time (Matter of Balletti v. Motor Vehicle Accident Indemnification Corporation, 16 A.D.2d 814, 228 N.Y.S.2d 768). The endorsement defines the term 'hit-and-run' vehicle to mean 'an automobile which causes bodily injury to an insured arising out of physical contact of such automobile which the insured is occupying at the time of the accident.' The term 'occupying' under the endorsement means 'in or upon or entering into or alighting from.' Section 617 of Article 17-A of the Insurance Law contains almost the identical language, and in addition makes its provisions applicable to 'insured' and 'qualified' persons alike.

The decisions construing Section 617 of the Insurance Law and the endorsement provisions have followed the language employed literally, and have required actual physical contact between the offending vehicle, and the claimant. In addition, they have refused to allow recovery based on the theory that the injury was proximately caused by the hit and run car (Matter of Portman [MVAIC], 33 Misc.2d 385, 225 N.Y.S.2d 560; Matter of Bellavia [MVAIC], 28 Misc.2d 420, 211 N.Y.S.2d 356; Matter of MVAIC [Comerchero], 34 Misc.2d 52, 227 N.Y.S.2d 285). However, there is one decision indicating that an infant who fell or jumped from the rear of an ice cream truck might be considered an 'occupant' thereof, although his injury resulted from contract with the pavement (Flores v. MVAIC, 32 Misc.2d 884, 225 N.Y.S.2d 481). In this proceeding, the respondent also contends that he is an 'occupant' of his vehicle within the provisions of the uninsured...