New York State Court of Claims

New York State Court of Claims

ROSADO v. THE STATE OF NEW YORK, #2001-028-0012, Claim No. 100322


Negligence - failure to use seatbelts. Claimant, inmate, was returning from medical trip in State van when van was struck in rear. Claimant failed to meet threshold as there was no medical evidence to support showing of "serious injury" within the meaning of Insurance Law 5102(d). Claim dismissed.

Case Information

LUIS ROSADO The caption of the claim is amended to reflect the State of New York as the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of the claim is amended to reflect the State of New York as the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Michael Friedman, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises out of a motor vehicle accident which occurred on May 19, 1998 while claimant was being transported back to Eastern Correctional Facility from a medical appointment in a vehicle owned by the Department of Correctional Services and operated by its employees. Claimant alleges that the Defendant was negligent in failing to fasten his seat belt when he was placed, handcuffed, in the transport vehicle.

Claimant testified that the accident occurred when the van in which he was riding was struck in the rear while stopped for road construction. Claimant described the vehicle as "a regular State van" and "bus" used to transport inmates.[1]
According to claimant, the force of the impact propelled him into the back of the inmate seated in front of him. Claimant testified the van was equipped with seat belts, but they were not fastened by the DOCS employees when he was placed in the vehicle. Claimant stated he could not fasten his own seat belt as he was restrained with handcuffs. While his hands were joined in front, he nevertheless could not fasten his seat belt as the handcuffs were affixed to a waist chain. He also wore leg irons upon his ankles. Claimant testified in very vague terms regarding the injury he alleged he sustained.[2]
The Defendant moved to dismiss the claim at the conclusion of Claimant's proof on the basis that, inter alia, claimant failed to establish he had suffered a serious injury as required by Insurance Law 5102. The Court reserved decision at trial and now addresses Defendant's motion.

New York State has adopted a "no- fault" system of insurance for dealing with injuries sustained in motor vehicle accidents. By enacting the No-Fault Law, the Legislature modified the common-law rights of persons injured in automobile accidents to the extent that plaintiffs in automobile accident cases no longer have an unfettered right to sue for injuries sustained
(Licari v Elliott, 57 NY2d 230, 234). One of the most significant modifications is the requirement that an injured party sustain a "serious injury" as defined by Insurance Law 5102(d). As a passenger in a motor vehicle, claimant is a "covered person" as defined by Insurance Law 5102(j) and therefore required to allege and prove a serious injury (See, Bethune v State of New York, Claim No. 95636, October 5, 2000, Mignano, J.; McLean v State of New York, Claim No. 99665, March 1, 2000, Collins, J.).[3] The threshold question of whether claimant has made out a prima facie case of serious injury should be decided by the court (Licari v Elliott, 57 NY2d at 238, supra).
The burden of establishing a serious injury rests with the claimant (
Cooper-Fry v Kolket, 245 AD2d 846) and it is beyond cavil that a claim of serious injury must be based on objective medical findings and diagnostic tests (See, Barnes v Stewart, 258 AD2d 707, 708). When the injuries are soft tissue or internal injuries to the back or neck claimant must submit expert medical testimony regarding causation and prognosis to establish a prima facie case of serious injury (Andre v Seem, 234 AD2d 325).
As already noted, Claimant did not produce any medical evidence of his injuries and his testimony was vague. The Court finds that the injuries alleged are certainly not of the type or nature where the Court may make a determination of their seriousness without the benefit of expert medical testimony. Absent the necessary medical proof, claimant has failed to establish by a preponderance of the credible evidence that he sustained a serious injury pursuant to Insurance Law 5102(d). As such, the Defendant's motion to dismiss is now granted and the claim is dismissed.[4]

Let judgment be entered accordingly.

April 13, 2001
Albany, New York

Judge of the Court of Claims

All quotations are to the trial notes or audiotapes unless otherwise indicated.
The Claim in this action alleged intervertebral disc disease and spondylosis (Claim ¶ 14, 15). The Court elicited testimony from Claimant that the injury he claims to have sustained in this motor vehicle accident was to his upper back and was an aggravation of his existing back injuries. At the outset of the trial, Claimant advised the Court he brought no medical records with him and was unable to obtain a doctor to testify on his behalf regarding his injuries. It should be noted that this matter had previously been scheduled for trial and upon the Claimant's failure to produce such evidence, the Court granted an adjournment for the specific purpose of allowing Claimant one further opportunity to prepare his case.
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Since the Claimant has failed to make out a prima facie case as to serious injury, the Court does not reach the issues of proximate cause, whether the Defendant owed a duty to a shackled inmate to utilize existing seat belts during a transport, or the validity of the State's seat belt defense. (See generally, Johnson v State of New York, 174 Misc 2d 193 [discussing duty owed, handcuffs, seat belts and injuries flowing from an escape from custody]; Vehicle & Traffic Law § 1229-c (8) [prohibiting use of non-compliance with New York's seat belt law as evidence in a civil action in regard to the issue of liability] and Rider v Speaker, 180 Misc 2d 999, 1005, [babysitter's failure to place the infant in a safety restraint seat may be found to be a negligent act and she cannot immunize herself from the responsibility she herself assumed]).