—Order affirmed without costs. Memorandum: Respondent Mark Hayden suffered personal injuries when he fell through a hole in a railroad trestle. Prior to the fall, Hayden was a passenger in a
We agree with the court’s conclusion that the accident did not arise out of the use of a motor vehicle. "Not every injury occurring in or near a motor vehicle is covered by the phrase 'use or operation'. The accident must be connected with the use of an automobile qua automobile” (United Servs. Auto. Assn. v Aetna Cas. & Sur. Co., 75 AD2d 1022; see also, Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 AD2d 1004, 1005; Thomas v Travelers Ins. Co., 87 Misc 2d 136, 137-138, affd 54 AD2d 608). "The use of the motor vehicle must be the proximate cause of the injury in the underlying action to come within the ambit of the 'use or operation’ clause” (Lumbermen’s Mut. Cas. Co. v Logan, 88 AD2d 971; see also, Olin v Moore, 178 AD2d 517, 518). We conclude that Hayden’s accident did not arise out of the inherent nature of the automobile as such. The accident did not occur within the vehicle or during its actual use, loading or unloading, and the automobile did not produce the injury but merely contributed to it (see, Lumbermen’s Mut. Cos. Co. v Logan, supra; cf., Gering v Merchants Mut. Ins. Co., 75 AD2d 321).
In light of our determination herein, it is unnecessary to reach the issue of the validity of Allstate’s disclaimer based upon late notice.
All concur except Lawton, J., who dissents in part and votes to modify in the following Memorandum.