Eagle Insurance v. Watanabe

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered February 16, 1990, which granted the petition seeking a permanent stay of arbitration, unanimously affirmed without costs.

Respondent was allegedly injured on February 10, 1989, while crossing Madison Avenue at 42nd Street, when a passing car ran over an unsecured metal plate in the roadway, causing the plate to bounce and fall on respondent’s foot. The arbitration hearing which respondent sought under the uninsured motorist endorsement of the insurance policy issued by petitioner was permanently stayed by the IAS court on the ground that respondent’s injury was not the result of "physical contact of the motor vehicle causing the injury” within the meaning of Insurance Law § 5217.

Although not requiring direct contact with the vehicle causing the injury (see, MVAIC v Eisenberg, 18 NY2d 1), the statute, insofar as it requires physical contact with the hit- and-run vehicle, has been held to exclude injury caused by snow and ice falling from a vehicle, which shattered the claimant’s windshield. (Matter of Smith v Great Am. Ins. Co., 29 NY2d 116.) In Smith (supra, at 119), it was held that the statute excludes recovery for "objects cast off or cast up by the hit-and-run vehicle, whether it be ice accumulated on the vehicle or pebbles or rocks or debris on the roadway surface.” The metal plate which here allegedly caused respondent’s injury falls into this category. Concur — Sullivan, J. P., Milonas, Ross, Asch and Kassal, JJ.