Opinion
August 3, 1995
Appeal from the Supreme Court, Albany County (Keegan, J.).
Plaintiff is employed by Crowley Foods, Inc. as a tractor-trailer driver. On January 2, 1993, plaintiff made a delivery of Crowley products to a Grand Union store in the Town of Niskayuna, Schenectady County. He was in the process of unloading his delivery truck when a levelator (a device, incorporated in the loading dock, used to lower goods from the level of the trailer to the level of the loading dock) collapsed, causing plaintiff to sustain personal injuries. Plaintiff filed a claim for first-party no-fault insurance benefits with defendant Crowley's motor vehicle insurance carrier. On June 3, 1993, defendant denied the claim upon the grounds that the insured vehicle was not the "actual instrument which caused the injury to [plaintiff]", that the accident did not "arise out of the inherent nature of the truck" and that "the truck did not contribute to cause a condition which resulted in the injury to [plaintiff]", prompting plaintiff to bring this action for damages allegedly resulting from defendant's refusal to pay the benefits. Following joinder of issue, plaintiff moved and defendant cross-moved for summary judgment. Supreme Court granted the cross motion and dismissed the complaint ( 162 Misc.2d 560). Plaintiff appeals.
We affirm. Initially, we agree with Supreme Court that plaintiff has not established his entitlement to first-party no-fault benefits. Because plaintiff sustained his injuries while unloading the truck, an activity specifically included within the policy's mandatory definition of "use or operation of a motor vehicle" ( see, 11 NYCRR 65.12[e]), it cannot be seriously contended that plaintiff was not engaged in the "use" of a motor vehicle at the time. That is not to say, however, that plaintiff's injuries arose out of that use ( see, Insurance Law § 5103[a][1]) or, stated another way, that plaintiff's use of a motor vehicle was a proximate cause of his injuries ( see, Matter of Pierce [Utica Mut. Ins. Co.], 110 A.D.2d 1023, 1024; Horney v. Tisyl Taxi Corp., 93 A.D.2d 291, 293-294). We agree with the Second Department that "first-party no-fault insurance benefits are available only when a motor vehicle, by its use or operation, is the actual instrumentality which produces the injuries" ( Matter of Manhattan Bronx Surface Tr. Operating Auth. [Gholson], 71 A.D.2d 1004, 1005; see, Matter of New York Cent. Mut. Fire Ins. Co. [Hayden], 209 A.D.2d 927; Matter of Owens [Northwestern Natl. Ins. Co.], 116 A.D.2d 784; Julian v. Old Republic Ins. Co., 98 A.D.2d 970; Lumbermen's Mut. Cas. Co. v Logan, 88 A.D.2d 971; but see, Kessler v. Liberty Mut. Ins. Co., 158 A.D.2d 974 ). On this record, there is no basis for a finding that any motor vehicle produced plaintiff's injuries. To the contrary, the uncontradicted evidence submitted on the motion and cross motion is that plaintiff's injuries were proximately caused by the failure of the levelator.
As a final matter, because the policy issued by defendant, as written, "could not have covered the liability in question under any circumstances" ( Zappone v. Home Ins. Co., 55 N.Y.2d 131, 134), defendant's avowed delay in denying first-party no-fault benefits is unavailing to plaintiff ( see, supra).
Cardona, P.J., Mikoll, Casey and Peters, JJ., concur. Ordered that the order is affirmed, without costs.