Opinion
July 22, 1991
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the order is reversed, on the law, with costs, and the petition is granted.
The record reveals that the respondent Craig Peterson was injured while riding on a bus when a fellow passenger bit him. His injuries were the subject of an application for no-fault benefits submitted to the bus company's insurer, the petitioner Lancer Insurance Company (hereinafter Lancer). After Lancer rejected the request for no-fault benefits, Peterson sought arbitration of the no-fault claim, and Lancer thereupon commenced this proceeding to permanently stay arbitration on the ground that no-fault benefits are not available where the injury arises from an assault such as the one involved in this case. The Supreme Court denied the petition. We reverse.
It is well settled that no-fault benefits are unavailable where the injury does not arise "out of the use or operation of a motor vehicle" (Insurance Law § 5102 [b]; see, Matter of Manhattan Bronx Surface Tr. Operating Auth. [Campbell], 75 A.D.2d 645). Hence, no-fault benefits have been denied and arbitration stayed where the accident does not arise from the intrinsic nature of the vehicle and where the vehicle is neither the proximate cause of the accident nor the actual instrumentality which produces the injury (see, Locascio v Atlantic Mut. Ins. Co., 127 A.D.2d 746; Horney v Tisyl Taxi Corp., 93 A.D.2d 291; Matter of Manhattan Bronx Surface Tr. Operating Auth. [Gholson], 71 A.D.2d 1004). Inasmuch as the injuries in this case were the product of an intentional assault and the operation of the bus was wholly incidental to the injury-producing event, no-fault benefits are not available. Accordingly, the petition to permanently stay the arbitration should have been granted. Mangano, P.J., Bracken, Lawrence and Miller, JJ., concur.