Use and Operation of a Motor Vehicle, Again: The Bus Lift Refusal Distinguished from Cividanes

Key Takeaways

• No-fault benefits require an injury arising out of the use or operation of a motor vehicle (Insurance Law § 5104) — the vehicle must be a proximate cause or instrumentality of the injury.
• In Cividanes, the Court of Appeals found no coverage where a passenger stepped off a stopped bus into a hole in the street: the bus did not produce the injury.
• Here, the First Department found coverage where the driver refused to activate the lift on exit for a walker-using passenger, causing her fall.
• The line between the two cases is thin — and the author of this post is not convinced.

The Decision

Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC, 2018 NY Slip Op 01260 (1st Dept. 2018)

“Contrary to petitioner’s arguments, the facts of this case are distinguishable from those in Cividanes v City of New York (20 NY3d 925 ), in which the Court of Appeals found that benefits were not available under the no-fault Insurance Law because the plaintiff’s injury did not arise out of the “use or operation of a motor vehicle” (Insurance Law § 5104). In that case, the plaintiff exited a stopped bus and fell when she stepped into a hole in the street. The Court determined that the bus was neither a “proximate cause” nor an “instrumentality” that produced her injury (id. at 926 ; see also Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 ).

Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.”

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I do not buy this at all. The cited to case (civadenes) notes that when you step off a bus and get hurt, there is no coverage. Same facts here, except the lift device was not activated. As a college friend during a drinking game would say: “I call bull****”. I could not resist.

The Legal Framework: “Use or Operation” Under Insurance Law § 5104

The no-fault statute does not cover every injury that happens near a vehicle. Insurance Law § 5104 ties first-party benefits to injuries “arising out of the use or operation” of a motor vehicle, and Walton v Lumbermens Mut. Cas. Co. supplies the three-part test: the accident must arise out of the inherent nature of the vehicle; it must arise within the vehicle’s natural territorial limits while the use continues; and the vehicle itself must produce the injury — not merely contribute to a condition that produces it.

The third prong does almost all of the work in the boarding-and-exiting cases. A bus that delivers a passenger to a defective sidewalk has contributed to the setting of the injury, but the sidewalk — not the bus — produced it. That was Cividanes, where the Court of Appeals held the bus was neither a proximate cause nor an instrumentality of the passenger’s injuries.

The Mathis facts forced the First Department to decide which side of that line a non-deployed lift falls on. Its answer: when the driver refuses to operate the vehicle’s own accessibility equipment and the passenger falls while negotiating the unlowered step with a walker, the vehicle itself produced the injury. The condition that caused the fall was the configuration of the bus — its height, its unactivated lift — rather than a roadway defect.

Why This Matters for Carriers, Self-Insurers, and Injured People

The classification has real money attached on both sides. If the injury arises from use or operation, the injured person gets first-party no-fault benefits, but any bodily injury lawsuit travels under Article 51 with its serious injury threshold. If it does not — the Cividanes outcome — there are no no-fault benefits, but the tort case proceeds free of the threshold. Parties therefore sometimes argue against type: a carrier may prefer to concede coverage to get the threshold, and a plaintiff may prefer to disclaim it.

The Article 51 landscape also shifted in 2026: New York’s tort reform eliminated the 90/180-day serious-injury category and added a greater-than-50% fault bar for covered auto cases commenced on or after the effective date — see the firm’s analysis of the 2026 tort reform and 50 percent bar.

And the skepticism in the original note stands. The distinction between Cividanes and Mathis is a single counterfactual: had the lift been deployed, the passenger reaches the street safely — but the Cividanes passenger reaches the street safely too if the bus stops three feet from the hole. Drawing the instrumentality line at on-board equipment is defensible; pretending it is obvious is not. See use, operation and proximate cause liberally construed and the buckling knee when exiting for the courts wrestling with the same seam.

Practice Pointers

Pin down the mechanism of injury early. The coverage question turns on whether the vehicle (or its equipment) produced the injury or merely delivered the claimant to the hazard. Bus height, lift status, door operation, and step condition belong in every deposition outline.

Argue the third Walton prong with precision. Identify the specific vehicular feature that produced the fall, or the specific external condition that did.

Think two moves ahead. Winning the no-coverage argument forfeits no-fault benefits but may free the tort claim from the serious injury threshold; winning coverage does the reverse. Decide which outcome serves the client before briefing the issue.

Frequently Asked Questions

What counts as “use or operation of a motor vehicle” under New York no-fault law?

Under the Walton test, the accident must arise from the inherent nature of the vehicle, occur within its natural territorial limits while use continues, and the vehicle itself must produce the injury rather than merely contribute to the condition that produced it.

Is falling while getting off a bus covered by no-fault?

It depends on what caused the fall. Stepping off a bus into a roadway defect is not covered (Cividanes), because the road — not the bus — produced the injury. Falling because the driver refused to activate the bus’s lift for a walker-using passenger is covered, per this decision, because the vehicle’s own equipment produced the injury.

Why would anyone argue their injury was not covered by no-fault?

Because injuries outside the “use or operation” framework escape Article 51 of the Insurance Law, including the serious injury threshold. A plaintiff with modest injuries may recover more in an unrestricted tort action than through no-fault benefits plus a threshold-barred lawsuit.

Related Resources

• Occupation of a vehicle implicated through rearranging items inside vehicle while standing outside of it
• Use, Operation and proximate cause liberally construed to afford coverage
• The buckling knee when exiting
• A person who parks a truck on the side of the road, exits it and directs traffic is not using or operating the truck
• A formulation of a prima facie case (no-fault litigation hub)
• 2026 New York auto tort reform: the 50 percent bar
• Browse the firm’s Legal Encyclopedia for more coverage and no-fault topics
• Long Island car accident lawyer