49 A.D.2d 676 | N.Y. App. Div. | 1975
Judgment and order unanimously affirmed, with costs. Memorandum: Plaintiff appeals from an order granting defendant’s motion for summary judgment. The facts are not in dispute. Plaintiff, on the evening of February 12,1974 while operating a snowmobile and apparently due to a mechanical malfunction, struck a locked and unoccupied automobile owned by Josephine Pantola which was parked in the street in front of her residence. The automobile was insured by defendant under a policy containing the standard New York mandatory personal injury protection endorsement which provided for payment of "first party benefits” to persons, other than occupants of another automobile, for loss arising out of the use or operation in the State of such motor vehicle (Insurance Law, §672, subd 1, par [a]). Upon defendant’s rejection of plaintiff’s claim for such benefits on the ground that the loss did not arise out of the use or operation of the insured vehicle, this litigation ensued. Upon the parties’ cross motions for summary judgment Special Term granted defendant’s motion, determining that plaintiff’s loss did not arise out of the use or operation of the insured vehicle, within the statutory meaning of said requirement which entails "some on-going activity” relating to the subject vehicle. The sole question here presented, which would appear to be a case of first impression since enactment of this State’s "Comprehensive Automobile Reparations Act”, commonly known as the "No-Fault Insurance Law”, is whether a vehicle parked in front of the insured owner’s
