Notice of Motion, Affirmation, with Exhibits 1,2
Defendant's Motion Memorandum 3
The Court notes that claimant has not submitted any papers in opposition to
The incident on which this claim is based occurred on May 16, 2001. At that
time, claimant was an inmate in the custody of the New York State Department of
Correctional Services, and was incarcerated at Butler Correctional Facility, Red
Creek, New York. On that date, claimant was a passenger in a transport bus
owned and operated by the Department of Correctional Services when the left rear
tire of the van blew out and the wheel hit the pavement. In his claim, claimant
alleges that he suffered a "minimal bulging disc" and a "mild focal deformity of
the thecal sac" (see Claim, attached as Exhibit A to Items 1,2, para. 6).
Claimant also alleges that he suffered "severe physical and mental pain and
anguish as well as chronic back pains" as a result of this accident, as well as
a loss of "full range of motion of his back" (see Exhibit A, para. 7 and 8).
Defendant now seeks to dismiss this claim, contending that claimant has failed
to plead a "serious injury" as required by Insurance Law § 5102(d) and
§ 5104(a), and that claimant cannot establish, as a matter of law, a
"serious injury" within the meaning of that statute. Defendant also contends
that the mere fact of a tire blowout is insufficient to establish a cause of
action of negligence as a matter of law.
While claimant has failed to specifically plead a "serious injury" as required
by § 5104(a), the crux of defendant's motion is whether claimant has
established a "serious injury" sufficient to meet the no-fault threshold as
defined in § 5102(d).
In order to establish a "serious injury", a claimant must substantiate the
injury by credible and objective medical evidence. Evidence which is based
solely on subjective complaints of pain is insufficient to establish a "serious
injury" (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345). In
this particular matter, and in support of its motion, defendant has submitted a
report of an x-ray taken on May 22, 2001, following the accident, which showed
no acute fracture, and only mild degenerative changes (see Exhibit F, page 1).
Additionally, defendant has submitted the report from an MRI, also taken
following the accident on July 23, 2001, which identified "no significant disc
herniation or spinal stenosis" (see Exhibit F, page 2). A subsequent MRI, taken
on March 18, 2002, revealed no evidence of "significant disc protrusion or
spinal stenosis" and concluded that the MRI of the lumbar spine was
"unremarkable" (see Exhibit F, page 3). Furthermore, a medical examination
performed of claimant on October 14, 2002 showed that claimant maintained a
"full and unrestricted" cervical spinal range of motion in all phases. Lumbar
extension, rotation, and lateral bending were all within normal limits, although
claimant's lumbar range of motion was restricted in flexion (see Exhibit F, page
Based upon the foregoing evidence, defendant has established a prima
facie entitlement to summary judgment, demonstrating that claimant has not
sustained a "serious injury " within the meaning of Insurance Law §
5102(d). As a result, the burden shifted to claimant to come forward with
sufficient evidence to demonstrate that he sustained a "serious injury" in this
accident within the meaning of § 5102(d) (see Gaddy v Eyler, 79
Since claimant has not responded to this motion, he has failed to raise any
triable question of fact on the issue of "serious injury", and this claim must
therefore be dismissed (see Licari v Elliott, 57 NY2d 230).
Based on this determination, there is no need to address defendant's other
contention as to whether claimant had established a negligence cause of action
based solely upon his allegation of a tire blowout.
Based on the foregoing, it is
ORDERED, that Motion No. M-69521 is hereby GRANTED; and it is further
ORDERED, that Claim No. 105148 is hereby DISMISSED.