New York State Court of Claims

New York State Court of Claims

ELLIOTT v. THE STATE OF NEW YORK, #2003-015-311, Claim No. 106032, Motion No. M-66037


Synopsis


Neither claim nor bill of particulars alleged that claimant had sustained a serious injury as defined in § 5102 of the Insurance Law nor were unsworn statements of claimant's physicians sufficient to defeat defendant's motion to dismiss the claim for its failure to state a cause of action.

Case Information

UID:
2003-015-311
Claimant(s):
JAMES ELLIOTT
Claimant short name:
ELLIOTT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106032
Motion number(s):
M-66037
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
The Proskin Law FirmBy: Lisa Anne Proskin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's pre-answer motion to dismiss the claim for failure to state a cause of action is granted. The instant claim seeks money damages for personal injuries sustained by claimant at Wallkill Correctional Facility (Wallkill) on November 1, 2000 when claimant fell between a refuse truck and a loading dock. At the time of the accident claimant, an inmate at Wallkill, was assigned to load refuse onto a truck which was being driven by a Wallkill Correction Officer. Claimant alleges that after the officer backed the truck up to the dock he placed one foot on the rear of the vehicle while keeping one foot on the dock. The truck lurched forward and claimant fell to the pavement below sustaining what he described as serious and permanent personal injuries. Claimant was initially examined at the facility and was transported to Albany Medical Center where he was treated and released back to the facility. Thereafter claimant repeatedly reported to sick call and received physical therapy for a low back injury sustained in the accident.

The defendant now moves to dismiss contending that the allegations in the claim fail to meet the serious injury threshold for maintaining a personal injury action arising out of negligence in the use or operation of a motor vehicle in this State. Claimant opposed the motion contending that the injuries sustained in the accident were indeed serious as defined in Insurance Law § 5102 (d) and attached unsworn statements of claimant's treating physicians to counsel's opposing affidavit. Claimant, however, failed to cross-move to amend the claim to address its facial insufficiency under the applicable statutes (see, Lesie v State of New York, Ct Cl, July 13, 2001 [Claim No. 96451, Motion Nos. M-61088, CM-61512] Corbett, J., unreported) even while admitting that claimant is indeed a "covered person" as defined in Insurance Law § 5102 (j).

Rule 3016 (g) of the Civil Practice Law and Rules provides as follows:
(g) Personal injury. In an action designated in subsection (a) of section five thousand one hundred four of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, the complaint shall state that the plaintiff has sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss, as defined in subsection (a) of section five thousand one hundred two of the insurance law.
Insurance Law § 5104, in relevant part, provides:
(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.
* * *
Serious injury is defined by Insurance Law § 5102 (d) in the following manner:
(d) "Serious injury" means 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 nonpermanent 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.
Neither the verified claim (defendant's Exhibit A) nor the verified bill of particulars (defendant's Exhibit C) contain the language made mandatory by the statute for a personal injury action arising out of a motor vehicle accident nor do they specify what manner of serious injury (Insurance Law § 5102 [d]) the claimant is alleged to have sustained. Rather, the claim merely states that the claimant "sustained serious and permanent personal injuries, rendering him sick, sore, lame and disabled."

There can be no doubt that the claim must allege a serious injury as defined in the law where the injury for which compensation is sought resulted directly from the operation of a vehicle as is the case under claimant's own description of the event giving rise to this claim. It is equally clear that the defendant cannot be deemed to have waived this pleading requirement since a waiver may not be imputed to the State absent statutory authority (Reed v State of New York, 147 AD2d 767; Jamestown Lodge 1681 Loyal Order of Moose, Matter of [Catherwood], 31 AD2d 981. Since the claim contains no such allegation it fails to state a cause of action and must be dismissed (see, McGovern v Martin, 122 AD2d 333; Oeschger v Fullforth, 51 AD2d 864; Monahan v Twyman, 79 Misc 2d 44; see also, Edwards v State of New York, 119 Misc 2d 355). The dismissal is without prejudice to a late claim application pursuant to Court of Claims Act § 10 (6) if the claimant be so advised.



January 28, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 8, 2002;
  2. Affidavit of Dennis M. Acton sworn to November 8, 2002 with exhibits;

[1]Captioned as an affidavit but treated as an affirmation pursuant to CPLR 2106.