Walton v. Lumbermens Mut. Cas. Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MERCURE
• Citation: Walton v. Lumbermens Mut. Cas. Co., 630 N.Y.S.2d 150, 218 A.D.2d 858 (N.Y. App. Div. 1995)
• Decision Date: 03 August 1995
• Parties: William M. WALTON, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.

Page 150

630 N.Y.S.2d 150

218 A.D.2d 858

William M. WALTON, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.

Supreme Court, Appellate Division Third Department.

Aug. 3, 1995.

Bohl, Della Rocca & Dorfman, P.C. (John E. Dorfman, of counsel), Albany, for appellant.

Thuillez, Ford, Gold & Conolly (Michael J. Hutter, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, CASEY and PETERS, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Keegan, J.), entered October 13, 1994 in Albany County, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint.

Plaintiff is employed by Crowley Foods Inc. as a tractor-trailer driver. On January 2, 1993, plaintiff made a delivery of Crowley products to a Grand Union store in the Town of Niskayuna, Schenectady County. He was in the process of unloading his delivery truck when a levelator (a device, incorporated in the loading dock, used to lower goods from the level of the trailer to the level of the loading dock) collapsed, causing plaintiff to sustain personal injuries. Plaintiff filed a claim for first-party no-fault insurance benefits with defendant, Crowley's motor vehicle insurance carrier. On June 3, 1993, defendant denied the claim upon the grounds that the insured vehicle was not the "actual instrument which caused the injury to [plaintiff]", that the accident did not "arise out of the inherent nature of the truck" and that "the truck did not contribute to cause a condition which resulted in the injury to [plaintiff]", prompting plaintiff to bring this action for damages allegedly resulting from defendant's refusal to pay the benefits. Following joinder of issue, plaintiff moved and defendant cross-moved for summary judgment. Supreme Court granted the cross motion and dismissed the complaint(162 Misc.2d 560, 618 N.Y.S.2d 735). Plaintiff appeals.

We affirm. Initially, we agree with Supreme Court that plaintiff has not established his entitlement to first-party no-fault benefits. Because plaintiff sustained his injuries while unloading the truck, an activity specifically included within the policy's mandatory definition of "use or operation of a motor vehicle" (see, 11 NYCRR 65.12[e] ), it cannot be seriously contended that plaintiff was not engaged in the "use" of a motor vehicle at the time. That is not to say, however, that plaintiff's injuries arose out of that use (see, Insurance Law § 5103[a][1] ) or, stated another way, that plaintiff's use of a motor vehicle was a proximate cause of his injuries (see, Matter of Pierce [Utica Mut. Ins. Co.], 110 A.D.2d 1023, 1024, 488 N.Y.S.2d 311; Horney v. Tisyl Taxi Corp., 93 A.D.2d 291, 293-294, 461 N.Y.S.2d 799). We agree with the Second Department that "first-party no-fault insurance benefits are available only when a motor vehicle, by its use or operation, is the actual instrumentality which produces the injuries" (Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 A.D.2d 1004, 1005, 420 N.Y.S.2d 298; see, Matter of New York Cent. Mut. Fire Ins. Co. [Hayden], 209 A.D.2d 927, 619 N.Y.S.2d 910; Matter of Northwestern Natl. Ins. Co. [Owens], 116...