New York State Court of Claims

New York State Court of Claims

HAWKINS v. THE STATE OF NEW YORK, #2000-017-030, Claim No. 97249


The Court denied defendant's motion to dismiss claimant's claim for damages arising from an accident that occurred when he was unloading a delivery truck as part of his work assignment on the ground that he failed to plead that he suffered a serious injury within the meaning of Insurance Law §5104(a).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Allen Hawkins, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Carol C. Poles, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks damages for injuries allegedly sustained as the result of an accident that occurred on August 29, 1997 while he was working as a line server in the main mess-hall. Claimant alleges that he was given a direct order to unload breakfast from a delivery truck, and that while pushing a "rolling food cart" on the loading ramp, he fell in between the truck and the loading platform. As a result of the fall, claimant allegedly sustained injuries to his lower body. A trial of this Claim was scheduled for May 24, 2000. At that time, both parties appeared, but the Court adjourned the trial at claimant's request to allow claimant to secure the attendance of a subpoenaed witness. Defendant then moved to dismiss the claim, arguing that the claim was defective in that claimant failed to plead that he sustained a "serious injury" in the accident within the meaning of Insurance Law §5104(a) (see, Yanis v Texaco, Inc., 85 Misc 2d 94). The Court notes that defendant did not raise this defense in its Verified Answer nor make a formal pre-trial motion to dismiss on this ground, and that defendant first raised this contention on the date of trial.
Article 51 of the New York State Insurance Law, the "No-Fault" law, provides that there shall be no right of recovery for non-economic loss (i.e., pain and suffering) arising out of negligence in the "use or operation" of a motor vehicle, except in the case of a "serious injury" (Insurance Law § 5104 [a]). "Use" of a motor vehicle has been defined to include any on-going activity relating to the vehicle, which is in conformity with its normally intended purpose (see, Yanis v Texaco, Inc., 85 Misc 2d 94, supra [fuel delivery truck was held to be in "use" when plaintiff tripped over fuel hose while fuel was being delivered to a building]). The unloading of goods from a parked tractor trailer by a plaintiff who is injured during the unloading process has been found to constitute ‘use' of a truck, within the meaning of the statute (see, Aranzullo v Collins Packing Co., 18 AD2d 1068). Under Insurance Law § 5102(d), "serious injury" is defined as:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

It is not clear from claimant's pro se pleadings whether the accident occurred while claimant was engaged in unloading the truck or while he was walking on the mess hall loading platform (see, Filed Claim, ¶¶ 10 - 13) and thus the Court cannot determine at this juncture whether his Claim falls within the parameters of the No-Fault Law. Additionally, the Court finds, after giving claimant's pro se pleadings a generous construction, that claimant has pleaded sufficient facts to suggest that he sustained a serious injury (see, Filed Claim ¶¶ 17, 27, 30). Thus, a determination of whether claimant was required to plead and establish that he suffered a "serious injury" in the accident must await determination after the facts are established at trial (see, Yanis v Texaco, Inc., 85 Misc 2d 94, supra). Accordingly, defendant's motion to dismiss the claim is DENIED and the claim will be returned to the pro se inmate trial calendar for scheduling in the near future.

August 10, 2000
White Plains, New York

Judge of the Court of Claims