Kessler v. Liberty Mutual Insurance

975 Under the circumstances of this case, plaintiff was using his insured vehicle within the meaning of section 5102 (b) of the Insurance Law (see also, 11 NYCRR 65.12 [a]; Wagman v American Fid. & Cas. Co., 304 NY 490) at the time he sustained injury. Thus he is entitled to first-party benefits from defendant (see, Matter of 20th Century Ins. Co. [Lumbermen’s Mut. Cas. Co.], 80 AD2d 288). Accordingly, that portion of the order that denied plaintiff first-party benefits must be reversed. (Appeal from order of Supreme Court, Cayuga County, Corning, J. — summary judgment.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.