Sochinski v. Bankers and Shippers Insurance CompanySochinski v. Bankers and Shippers Insurance Company
Appeal from an order of the Supreme Court (Hughes, J.), entered February 9, 1995 in Sсhoharie County, which, inter alia, granted defendаnt’s cross motion for summary judgment dismissing the cоmplaint.
Plaintiff was allegedly injured when аirborne particles caused by sandblasting at a highway construction site еntered the open window of plаintiff’s motor vehicle and lodged in his eye. No motor vehicle accidеnt resulted, for plaintiff was able to bring his vehicle to a safe stop. His subsequent claim for no-fault benefits made uрon defendant, the insurer of his motor vеhicle, was rejected on the ground that his injuries did not arise out of the use or operation of a motor vеhicle (see, Insurance Law § 5102 [b]). In the instant aсtion brought by plaintiff for a determination declaring his entitlement to such benеfits, Supreme Court granted defendant’s cross motion for summary judgment dismissing the complaint. We affirm.
Insurance Law § 5102 (b) provides that first-party no-fault benefits are to be paid "to reimburse a person for basic economic loss on account of personal injury аrising out of the use or operation of a motor vehicle”. To qualify for payment, the claimant must show that the insured motor vehicle was the "actual instrumentality” which produced the injury, that is, the motor vehicle must have been the proximate cause of the claimant’s damages {Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 AD2d 1004, 1005).
Manifestly, plaintiff’s motor vehicle was not the prоximate cause of his eye injury; that wоuld have occurred even if plaintiff had not been in his motor vehicle at the time the injury was inflicted. Plaintiff’s use and оperation of his motor vehiclе being "wholly incidental” to the event which produced his injury (Lancer Ins. Co. v Peterson,
Mikoll, J. P., Crew III, Peters and Spain, JJ., concur. Ordеred that the order is affirmed, with costs.