New York State Court of Claims

New York State Court of Claims

GREENO v. THE STATE OF NEW YORK, #2003-032-132, Claim No. 104514, Motion No. M-67288


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:
Peter Dumas, Esq.Law Offices of John Piasecki
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from a September 18, 1999 automobile accident that occurred on Route 11 in the Town of Clinton. As the claimants' vehicle, which was traveling westbound, slowed because of a bump in the road, it was struck from the rear by a bus belonging to the Department of Correctional Services (DOCS) and driven by an employee of Upstate Correctional Facility. After the accident, claimants returned to their home, being taken there by relatives whom they had called, and later that same day, they went to the nearest Emergency Room. Defendant has now moved for summary judgment dismissing the claim on the ground that neither claimant sustained a "serious injury" as defined by section 5104(d) of the Insurance Law, part of New York's No-Fault Insurance provisions.

Insurance Law § 5102 (d) defines "serious injury" 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.
Injuries of Gerald Greeno:
Following the accident, claimant Gerald Greeno went to Alice Hyde Hospital, at which time x-rays of the lumbar and cervical spine were taken. Although pre-existing signs of wear were noted (mild scoliosis in the lumbar spine and moderate degenerative changes in the cervical spine), no acute abnormalities or fractures were found (Cagino affirmation, Exhibit B). Mr. Greeno was subsequently seen by his primary care physician, Dr. Anjni Bhagat, and on referral, by Dr. Hargraves, a neurosurgeon. An MRI of the lumbar spine was performed, and Mr. Greeno received physical therapy for approximately two months.

Prior to the September 1999 accident, Mr. Greeno had complaints involving his right hand and wrist, and swelling and pain in his left leg (id, Exhibit D). Although an MRI had been recommended prior to the accident in connection with his left ankle problem, none was conducted until 2002, several years after the accident. These revealed an abnormality, possibly a cyst, on the lumbar spine (id, Exhibit G) and evidence of a partial tear of the deltoid ligament on the left ankle (id, Exhibit H).

More recently, Mr. Greeno was examined by Dr. Louis J. Benton, an orthopedic surgeon, as part of the independent medical examination arranged by defendant (id, Exhibit C). According to Dr. Benton, claimant stated that the only injuries related to the September 1999 accident were to his right hand and shoulder, left ankle and lower back. Dr. Benton made no objective findings to support any of these complaints, other than a mild swelling of the left ankle which medical records indicate existed prior to the accident. During the period immediately following the accident, Mr. Greeno's work history was unremarkable. He took a total of three days of sick leave: October 6, 1999; February 9, 2000; and June 2, 2000.

Injuries of Marieta Greeno
: Mrs. Greeno also went to the Alice Hyde Hospital on the day of the accident, and she was diagnosed as having a "neck sprain" (id, Exhibit J, pp 2-3). She also followed up with Dr. Bhagat, who diagnosed her as having "whiplash" (id, Exhibit K). X-rays taken on the day of the accident and an MRI performed in 2000 (id, Exhibits P, Q) also showed no trauma-related abnormalities.

In May 2003, Mrs. Greeno was examined by Dr. Benton, in an independent medical examination related to this lawsuit. She stated that the injuries she received from the accident related to her neck, but Dr. Benton was unable to find any objective signs supporting a diagnosis of traumatic injury (id, Exhibit L). There were some degenerative arthritis injuries noted.

Insurance Law §5102(d) is part of the New York State No-Fault Law that was adopted by the Legislature to effect changes in the common law tort system of compensating automobile accident claimants. (Insurance Law, art 18, L 1973, ch 13, §1; Montgomery v Daniels, 38 NY2d 41, 49-53 [1975]). Any injury not falling within the statutory definition of serious injury is considered minor and thus no trial by jury is permitted under the no-fault system. It is claimant's burden to make a threshold showing that he or she sustained a serious injury as defined by Insurance Law §5102(d) (Licari v Elliott, 57 NY2d 230, 235 [1982]). Tacitly admitting that they cannot make this requisite showing, claimants have not submitted any opposition to the instant motion.

Defendant's motion is granted, and Claim No. 104514 is dismissed.

December 31, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment in its favor:
1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG, with annexed exhibits

2. Affirmation in Opposition (none received)

Filed papers: Claim; Answer