New York State Court of Claims

New York State Court of Claims

NEWLAND v. THE STATE OF NEW YORK, #2004-031-123, Claim No. 106902, Motion Nos. M-69060, M-69040


Synopsis


Claimant, injured during the use and operation of a State-owned vehicle, failed to demonstrate serious injury as required by Insurance Law § 5102(d). Defendant's motion for summary judgment is granted. Claimant's motion requesting judicial subpoenas is denied as moot

Case Information

UID:
2004-031-123
Claimant(s):
WAYNE NEWLAND The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
NEWLAND
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106902
Motion number(s):
M-69060, M-69040
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
WAYNE NEWLAND, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 5, were read on motion by Defendant for summary judgment and dismissal of the claim and Claimant's motion for judicial subpoenas to compel testimony at trial:
1. Claimant's Notice of Motion (M-69040), filed September 7, 2004;
2. Claimant's Affidavit (M-69040), sworn to September 3, 2004;
3. Defendant's Notice of Motion (M-69060), filed September 9, 2004;
4. Affirmation of Heather R. Rubinstein, Esq., dated September 7, 2004, with attached exhibits;
  1. Filed documents: Claim and Answer. In his underlying claim, Mr. Newland alleges that on September 6, 2002, he was injured while alighting from a Department of Correctional Services van at Auburn Correctional Facility. According to Claimant the leg chains which restrained him were too short to permit him to step safely off the bus. While stepping down he tripped, fell into a nearby wall, and suffered minor injuries. Claimant does not allege that he suffered serious injuries in the fall, but does allege that he broke his glasses, suffered a laceration of his hand, and felt pain in both legs.
Claimant has filed a motion (M-69040) seeking judicial subpoenas compelling the testimony of certain specified witnesses at trial. Defendant has moved for summary judgment and dismissal of the claim in this matter (M-69060), asserting that Claimant has failed to demonstrate, or even allege, that he sustained a serious injury. I will first address Defendant's dispositive motion.

Defendant argues that summary judgment should be granted because Claimant has failed to demonstrate that he suffered "serious injury" as defined by Insurance Law § 5102(d).

As Claimant was injured exiting a State van after his transport, his injury arose "out of the use or operation of a motor vehicle" (Insurance Law § 5102[b]) (Hill v Metropolitan Suburban Bus Auth., 157 AD2d 93; Yanis v Texaco, Inc., 85 Misc 2d 94). Therefore, in order to recover, Claimant must demonstrate that he suffered serious injury as defined by Insurance Law § 5102(d) ( Licari v Elliott, 57 NY2d 230; Giannattasio v State of New York, Ct Cl, June 25, 2001 [Claim Nos. 97741 and 100199, Motion No. M-63325], Read J., UID #2001-001-034). The nature of the accident, in combination with the medical records documenting Claimant's injuries, adequately demonstrate that Claimant's injuries were neither serious nor lasting. Nothing in the record before me indicates otherwise, and Claimant has failed to respond to this motion.

Generally, in order to defeat such a motion, a claimant is required to submit expert medical testimony regarding causation and prognosis in order to establish a prima facie case that he sustained a "serious injury" as a result of this accident (Duffen v State of New York, 245 AD2d 653; Andre v Seem, 234 AD2d 325). An expert medical witness must then establish the degree of the injuries and causation to a reasonable level of medical certainty (Dumas v Valley View House, 235 AD2d 767).

While it is true that, in rare cases, where the injury is within the experience and observation of ordinary laypersons, causation and serious injury may be established without expert medical testimony (Lanpont v Savvas Cab Corp., 244 AD2d 208), this is not such a case. An examination of the record before me indicates that Claimant's injuries were quite minor. A doctor's affidavit explaining how Claimant suffered serious injury as he maintains, is, therefore, necessary. I find, therefore, that Claimant has not satisfied his burden of proof.

For the reasons set forth above, I find that Claimant did not sustain a serious injury in the September 6, 2002 incident.

Accordingly it is hereby

ORDERED, that Defendant's motion for summary judgment is granted. The claim is dismissed. Claimant's motion for judicial subpoenas is denied as moot. The Clerk of the Court is directed to close the file.

September 24, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims