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South Ozone Park Medical, P.C. v. New York City Transit Authority

Summary Judgment Denied, Cause of Accident Is Issue for Trial

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Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed       1 Order to Show Cause Answering Affidavits         2 Replying Affidavits            3 Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, defendant’s motion for a summary judgment, pursuant to CPLR §3212, is decided as follows: Plaintiff commenced an action seeking recovery for no-fault benefits for medical services rendered. Defendant seeks summary judgment on the basis that the accident did not occur as a result of the operation of a motor vehicle. The 50-h hearing by the assignor, Michael Brooks, states that the accident occurred when he was getting off a bus, the bus shifted, and his right foot was caught between the bus and the curb. If the assignor’s 50-h testimony is accepted, then the accident could be found to have happened in the operation of a bus, as opposed to stepping into a pot hole while alighting from a bus, NYCTA v. Physical Medicine, 158 A.D. 3d 461 (1st Dept. 2018). Matter of Manhattan and Bronx Surface Transit Operating Authority v. Gholsen, 71 A.D. 2d 1004, (2nd Dept. 1979). Motor vehicle use or operation includes all activities necessarily part of driving a motor vehicle, such as getting in and getting out, Nassau County Chapter of Associations for Help of Retarded Children, Inc. v. Insurance Company of North America, 59 A.D. 2d 525 (2nd Dept. 1977). The cause of the incident, whether it was the operation of the bus, or the existence of the pot hole, is an issue for trial. All other applications, although not addressed here, are denied. The defendant’s motion for summary judgment is denied. This constitutes the decision and order of the Court. Dated: May 21, 2024

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