490), he contends that he is entitled to no-fault benefits because he was unloading the vehicle at the time he was injured and thus he was using the vehicle within the meaning of the no-fault provisions.
However, relying on 11 NYCRR 65.12 (e) and this Court's decision in Wagman v American Fid. *214Walton has never disputed that the truck itself did not cause his injuries or that the failure of the levelator was the proximate cause of his injuries. The statute does not define "use or operation" (cf., Insurance Law § 5102), but the Mandatory Personal Injury Protection Endorsement required by the regulations implementing the no-fault statute states that "use or operation of a motor vehicle * * * includes the loading or unloading of such vehicle" (11 NYCRR 65.12 ). The Insurance Law provides that a person is entitled to first-party benefits from the insurer of a vehicle "for loss arising out of the use or operation * * * of such motor vehicle" (Insurance Law § 5103 ). The Appellate Division affirmed, holding that no-fault first-party benefits are available only when the motor vehicle is the actual instrumentality that causes the injury and that plaintiff's injury here was caused by the levelator (218 AD2d 858, 859). Supreme Court granted defendant's cross motion for summary judgment and dismissed the complaint (162 Misc 2d 560). Defendant denied the claim and Walton commenced this action to recover his "basic economic loss," demanding the statutory cap of $50,000 (see, Insurance Law § 5102 ). Walton filed a claim for no-fault benefits. Walton employed the levelator as described and while he was standing on it with a load of dairy products the levelator tipped over, throwing him to the ground causing him to sustain injuries which required medical care and resulted in his losing time from work. He could then lower the levelator to the height of the loading dock and transport the goods from the levelator to the loading dock. A ramp was thus created that enabled him to transfer goods from the truck to the levelator. The supermarket provided an apparatus called a "levelator" to facilitate delivery and, after obtaining a control device from the supermarket, Walton raised the levelator to the same height as the truck bed and attached plates from the levelator to the truck. He backed his employer's tractor-trailer up to the supermarket's loading dock, got out of the truck and opened the rear cargo door. On the day he was injured he was delivering dairy products to a Grand Union supermarket in Niskayuna.
#THE LEVELATOR PRO DRIVER#
Plaintiff William Walton was employed as a truck driver by Crowley Foods, Inc. We hold that where a person's injuries were produced by an instrumentality other than the vehicle itself, no-fault first-party benefits are not available.
The sole issue before the Court is whether plaintiff's injuries arose out of the use or operation of the truck within the meaning of Insurance Law § 5102 (b). Plaintiff was injured while unloading a truck at a supermarket loading dock and sought no-fault benefits from defendant, *213 the insurer of the truck. Hutter of counsel), for respondent.Ĭhief Judge KAYE and Judges TITONE, BELLACOSA, SMITH and CIPARICK concur Judge LEVINE taking no part. Thuillez, Ford, Gold & Conolly, LLP, Albany (Michael J. Lumbermens Mutual Casualty Company, Respondent.Ĭourt of Appeals of the State of New York.īohl, Della Rocca & Dorfman, P.
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