Opinion
May 15, 1997
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
The alleged assault on the infant plaintiff in the underlying tort action while a passenger on a school bus did not arise out of the use of that vehicle ( see, Horney v. Tisyl Taxi Corp., 93 A.D.2d 291). Recent judicial repudiation of the common carrier doctrine ( see, Adams v. New York City Tr. Auth., 88 N.Y.2d 116) renders plaintiff's reliance on earlier case law inappropriate ( see, e.g., Green Bus Lines v. Ocean Acc. Guar. Corp., 287 N.Y. 309, 312). Nor does assault come within the coverage of defendant's policy, which extends only to bodily injury "caused by an accident", as that term is commonly construed in the context of an automobile insurance policy ( Michaels v. City of Buffalo, 85 N.Y.2d 754, 758). We modify only to declare explicitly what is implied by Supreme Court's disposition ( see, Lanza v. Wagner, 11 N.Y.2d 317, 334, cert denied 371 U.S. 901).
Concur — Ellerin, J.P., Wallach, Rubin and Mazzarelli, JJ.