IN RE: Application of Daniel MARTINEZ

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Daniel MARTINEZ, Petitioner-Respondent, For an Order, etc., Motor Vehicle Accident Indemnification Corporation, Respondent-Appellant.

Decided: June 27, 2002

WILLIAMS, P.J., NARDELLI, SAXE, SULLIVAN and FRIEDMAN, JJ. Michael Flaks, for Petitioner-Respondent. James F. Carroll, Respondent-Appellant.

Order and judgment (one paper), Supreme Court, New York County (Jane Solomon, J.), entered on or about August 21, 2000, which granted the petition brought pursuant to Insurance Law § 5218 for permission to sue respondent, unanimously affirmed, without costs.

After alighting from the tow truck he had been driving, petitioner was struck by a hit-and-run vehicle while walking toward the disabled vehicle he had been dispatched to assist.   As Supreme Court found, while petitioner undoubtedly intended eventually to return to his truck, his absence from the truck was not intended to be brief and his immediate purpose was to attend to the disabled vehicle as a necessary incident to his employment, which distinguishes the instant circumstance from those in which a mere temporary happenstance interrupted the operator's connection with the vehicle.   Accordingly, since petitioner was no longer occupying the truck at the time of his accident, he was not entitled to coverage under the uninsured motorist endorsement of the policy insuring the truck and permission to proceed against respondent was properly granted (see, Estate of Cepeda v. United States Fid. & Guar. Co., 37 A.D.2d 454, 326 N.Y.S.2d 864;  see also, Matter of Rice v. Allstate Ins. Co., 32 N.Y.2d 6, 342 N.Y.S.2d 845, 295 N.E.2d 647).