
    Ernest Jurgen-Schultz, Plaintiff, v Sidney Weiss et al., Defendants.
    Civil Court of the City of New York, Special Term, New York County,
    November 18, 1974
    
      Abraham E. Freedman for plaintiff. Raymond J. Mac-Donnell for Sideny Weiss, defendant.
   Stanley P. Danzig, J.

This motion raises the question of whether a bicyclist is a "covered person” under the Comprehensive Automobile Insurance Reparations Act (Insurance Law, art XVIII), effective February 1, 1974.

Plaintiff bicyclist claims damages for personal injuries resulting from the negligent operation of defendants’ motor vehicle on March 7, 1974. Defendants have pleaded the Comprehensive Automobile Insurance Reparations Act as a bar to this action and the plaintiff has moved to dismiss this affirmative defense, claiming he is not a "covered person” within the meaning of the statute.

The issue of the constitutionality of this statute not having been raised herein, the motion to dismiss the defense is denied.

Subdivision 10 of section 671 of the Insurance Law (Comprehensive Automobile Insurance Reparations Act) defines "covered person” as "any pedestrian injured through the use or operation of * * * a motor vehicle (which carries the statutorily required liability insurance) * * * or any other person entitled to ñrst party beneñts”.

Subdivision 1 of section 672 of the act, "Entitlement to first party benefits” provides: "Every owner’s policy of liability insurance issued * * * in satisfaction [of statutory requirements] * * * shall also provide for * * * the payment of first party benefits to: (a) persons, other than occupants of another motor vehicle, for loss arising out of the use or operation in this state of such motor vehicle.” Plaintiff is a "person, other than an occupant of another motor vehicle.” It is clear, therefore, that the defense interposed based on this act is sufficient in law and should not be dismissed.  