Summary
In Locascio v Atlantic Mutual Ins Co, 127 A.D.2d 746; 511 N.Y.S.2d 934 (1987), the plaintiff was shot with a handgun by the other driver involved in a minor collision.
Summary of this case from Kreager v. State FarmOpinion
February 17, 1987
Appeal from the Supreme Court, Kings County (Jones, J.).
Ordered that the order is affirmed, with costs.
On October 20, 1984, the plaintiff was involved in an automobile collision with a vehicle driven by an unknown man. The plaintiff was not injured as a result of the collision. However, after both the plaintiff and the other driver exited their respective vehicles, the plaintiff was shot with a hand-gun by the other driver who then fled and was never found. The plaintiff sought first-party benefits and uninsured motorist benefits pursuant to a policy issued by the defendant insurer. When the defendant disclaimed, the plaintiff instituted this action which Special Term dismissed upon the defendant's motion for summary judgment.
The plaintiff was not entitled to first-party benefits because his injuries did not arise from the "use or operation" of the automobile (see, Matter of Manhattan Bronx Surface Tr. Operating Auth. [Gholson], 71 A.D.2d 1004, quoting from Insurance Law former § 671 [2], [now § 5102 (b)]). His claim for benefits under the uninsured motorist endorsement was also properly denied because his injuries were not caused by an accident (see, McCarthy v. MVAIC, 16 A.D.2d 35, affd 12 N.Y.2d 922) and the injuries did not arise from the physical contact between the vehicles (see, Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116). Mangano, J.P., Bracken, Niehoff and Eiber, JJ., concur.