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 this action to recover no-fault benefits for medical services rendered to Michael Brooks. The complaint states that Michael Brooks was injured in a motor vehicle (a bus) accident on or about January 28, 2017. Defendant claims that the defendant is entitled to summary judgment as the claimant’s injuries did not arise out of the use or operation of a motor vehicle. Defendant cites cases which state that the vehicle must be in use or operation for the claimant to be eligible for no-fault benefits, Matter of Manhattan and Bronx Surface Transit Operating Authority v. Gholsen, 71 A.D. 2d 1004 (2nd Dept. 1979). The notice of claim states that claimant was injured when he “trip and fell” due to his foot getting stuck between the step of the bus and the curb. The hearing transcript proffers more details. Claimant states, “I remember that the bus was at the last stop. The driver said the last stop. As I was coming off the bus, I remember the bus, like, it shift, but, at the same time, the bus didn’t dock appropriately toward the sidewalk. So my, memory is me getting off the bus with the bus having, like, the shift. I don’t know what the bus did, but it shift.” Although while the narrative could have been more articulate, there is a clear allegation that the bus moved while claimant was exiting. Defendant asserts that the fall was not caused by the bus. However, 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 Association for Help of Retarded Children, Inc. v. Insurance Company of North America, 59 A.D. 2d 525 (2nd Dept. 1977). The Court finds that it is a question of fact whether the injuries arose from the use or operation of the bus especially if the bus “shifted” when the claimant was disboarding. Accordingly, Defendant’s motion for a summary judgment, is denied. This constitutes the decision and order of the Court. Dated: September 18, 2024
