Senia v. Government Employees Insurance, 85 Misc. 2d 762

85 Misc. 2d 762 | N.Y. App. Term. | 1975

Memorandum. Order unanimously modified by directing that summary judgment be entered in favor of defendant dismissing the complaint, and, as so modified, affirmed, without costs.

In this action to recover first-party "no fault” benefits for medical expenses, and reasonable attorney’s fees (see Insurance Law, §§ 672, 675, subd 1), plaintiff appeals from an order denying her motion for summary judgment.

Plaintiff contends that she fell as the result of a defect in the surface of a parking lot and sustained personal injuries requiring medical treatment. At the time of the accident she was carrying two packages of groceries that she intended to deposit in the insured automobile parked "one short block” away. The policy issued by defendant contained the "Mandatory Personal Injury Protection Endorsement” (11 NYCRR Part 65) which defines an "eligible injured person” as "any person who sustains a personal injury arising out of the use or operation of the self-insured motor vehicle while not occupying another motor vehicle” and includes "the loading or unloading of such vehicle” within its definition of "use or operation.”

In our opinion, unless a vehicle is specifically insured to transport goods commercially and the injuries arise out of such use, the "complete operation” rule, enunciated in Wagman v American Fid. & Cas. Co. (304 NY 490), does not apply (cf. General Acc. Fire & Life Assur. Corp. v Jarmuth, 32 Misc 2d 424; contra, Broome County Coop. Fire Ins. Co. v Aetna Life & Cas. Co., 75 Misc 2d 587). Coverage under the "loading or unloading” clause of the policy herein should be limited to the immediate act of placing the goods on the vehicle and lifting them off. As the record clearly demonstrates that plaintiff had not yet commenced loading the insured vehicle under this more narrow test, this court directs that summary judgment be entered in favor of defendant dismissing the complaint (CPLR 3212, subd [b]; Davis v Shelton, 33 AD2d 707; Cutting Room Appliance Corp. v Finkelstein, 33 AD2d 674).

Concur: Hogan P.J., Pittoni and Farley, JJ.