Ellis v United Fin. Cas. Co.
Annotate this CaseDecided on June 7, 2013
Supreme Court, Kings County
Frank Ellis, Plaintiff,
against
United Financial Casualty Company d/b/a PROGRESSIVE/UNITED FINANCIAL CASUALTY, Defendant.
18942/12
Plaintiff Attorney: Law Offices of Neil Kalra, P.C., 100-15 Queens Blvd., Ste. 203, Forest Hills, NY 11375
Defendant Attorney: McCormack & Mattei, P.C., 1035 Stewart Avenue, Second Fl., Garden City, NY 11530
David I. Schmidt, J.
The following papers numbered 1 to 5 and annexed exhibits read on this motion:
Papers Numbered
Notice of Motion
and Affidavits (Affirmations) Annexed1 - 2
Cross Motion (Affirmations)3, 4
Reply/ Opposition Affidavits (Affirmations)5
On February 21, 2012, plaintiff was standing on top of his flatbed tow truck in a Gershow Recycling yard in Brooklyn, New York to unload and ready a van that he owned to be scrapped at the yard. Before the van could be fork-lifted from the truck, it had to be unchained from the truck. As plaintiff stood upon his flatbed truck unchaining his vehicle and removing a sticker from its rear windshield, the forklift, operated by an employee of [*2]the recycling yard, began to lift the van, causing it to strike the plaintiff and topple him off of his truck.
Plaintiff's flatbed truck was insured under a policy issued by the defendant. After receiving treatment for the injuries he sustained as a result of this accident, plaintiff filed a claim for no-fault benefits from the defendant. Defendant denied the claim, asserting that plaintiff's "injury did not arise out of the use or the operation of a motor vehicle accident".
In his action for a declaratory judgment stating that defendant has a duty to provide plaintiff no-fault benefits including payment of his medical bills incurred from the accident, plaintiff here moved for summary judgment pursuant to CPLR §3001.
Defendant cross moved for summary judgment pursuant to CPLR §3212 dismissing the plaintiff's action claiming that plaintiff is not eligible for such benefits as his vehicle was not the cause of his injuries. According to defendant, citing Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 (2d Dept. 1979), in order for an injury to qualify for no-fault benefits, it must:
(1) Arise out of the inherent nature of the automobile; (2) Occur within the natural territorial limits of the automobile and the use, loading or unloading must still be in progress; and
(3) The automobile must not merely contribute to the injury but must actually produce it.
Defendant concurs that the plaintiff satisfied the first two prongs of the Gholson test, however it contends that plaintiff's truck did not cause the plaintiff's injury and as such, plaintiff failed to satisfy the requirement of the third prong. In support of this contention, defendant cited the case Iavarone v. Lentini et al. (Sup. Ct., Nassau Cty., Index No. 2286/04). This case does not appear to have been published and no copy was attached. According to defendant's description of the facts of that case, Iavarone was instructed by his employer, Lentini, to clean out the cargo area of the Lentini's van. This area contained a gas torch and paint thinners among other items. Iavarone accidentally stepped on the gas torch, a spark from which ignited the highly flammable paint thinners along with other items in the van and he sustained injuries. The Nassau County Supreme Court found that the plaintiff's injury was not produced by the motor vehicle and as such, Iavarone was not entitled to no-fault benefits as he failed to satisfy the requirements of the third prong of the Ghoulson test.
There is a line of cases that hold that the mere fact that a plaintiff was loading or unloading a vehicle when injured does not in itself entitle the plaintiff to no-fault benefits if the proximate cause of the injury was an instrumentality other than the vehicle itself. See, e.g., Walton v. Lumberman's Mutual 88 NY2d 211 (1996) (truck driver injured when supermarket's levelator collapsed while he was unloading his insured truck at supermarket's loading dock. As the collapse of the levelator was the undisputed proximate cause of his injuries, plaintiff was not entitled to recover first- party no-fault benefits.)
The present case is clearly distinguishable from Iavarone (supra), where the plaintiff was injured by the blow torch and not by the truck, and from Walton (supra), where the injuries were caused by the levelator and not by the truck. [*3]
Here, the plaintiff was unloading his van while standing on his insured truck, and the injuries were sustained as a result of his being struck while on his vehicle and falling off of his truck, thus meeting the Ghoulson requirement that the injury be produced by the covered vehicle.
See Kessler v. Liberty Mut. Ins. Co., 158 AD2d 974 (4th Dept., 1990) (Plaintiff entitled to first- party no-fault benefits when injured as he was standing on his flatbed truck, stacking bales of hay that were being loaded on and tossed to him by a co-worker and one bale struck him.); See also, In the Matter of the Arbitration between Farm Family Casualty Insurance Company and Trapiani, 301 AD2d 740 (3d Dept., 2003) (Plaintiff entitled to no-fault benefits when her car struck a pole; as the shorted wires hanging from the pole rained sparks, plaintiff fled from her vehicle and was injured when she tripped and fell on the roadway.); Gering v. Merchants Mutual Insurance Company, 75 AD2d 321 (2d Dept., 1980) (Plaintiff entitled to no-fault benefits when his truck broke down while he was driving it and he was struck in the eye by a piece of metal that chipped off as he hit the bearing with a hammer and chisel in his attempt to repair the truck).
Accordingly, plaintiff's motion for summary judgment declaring that defendant is obligated to provide no-fault benefits is granted and the defendant's cross motion to dismiss is denied.
The foregoing constitutes the decision and order of this court.
E N T E R,
J. S. C.
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