Schrager v. Fifth Avenue Coach Lines, Inc.

6 Misc. 2d 604, 167 N.Y.S.2d 456, 1957 N.Y. Misc. LEXIS 2867

Opinion

Edgar J. Nathan, Jr., J.

Defendant, Kurtz, moves to set aside service of process effectuated pursuant to sections 52 and 52-a of the Vehicle and Traffic Law, and to dismiss the complaint.

In the complaint plaintiff alleges in substance that Kurtz, the operator of a bus, stopped the vehicle on the highway and got out of the bus to chase unknown persons. As a result Kurtz collided with plaintiff causing her to be injured.

Defendant Kurtz, who left the State after the occurrence, contends that since the complaint discloses that the accident did not arise out of the operation of the bus, jurisdiction could not be obtained under the provisions of sections 52 and 52-a of the Vehicle and Traffic Law.

Plaintiff does not claim that she was struck by the vehicle or that it was negligently operated. Obviously the accident did not grow out of the operation of the vehicle on the public highway within the meaning of section 52 of the Vehicle and Traffic Law (see Brown v. Hertz Drivurself Stations, 203 Misc. 728; Mulligan v. Jersey Truck Renters, 196 Misc. 828).

Accordingly, the motion is granted, the service of process on Kurtz vacated, and the complaint dismissed as to him.