New York State Court of Claims

New York State Court of Claims

KIRKSEY v. THE STATE OF NEW YORK, #2006-032-508, Claim No. 105986


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:
Willie Kirksey, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 7, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

After a trial held on June 30, 2006, the Court makes the following determination. The incident on which this claim is based occurred on February 14, 2001. At that time, claimant was an inmate in the custody of the New York State Department of Correctional Services, and was incarcerated at Clinton Correctional Facility. On that date, claimant was a passenger in a transport van owned and operated by the Department of Correctional Services when the driver lost control of the vehicle and the van spun and overturned onto its roof. At the time of the accident, claimant was handcuffed, secured with a black box and shackled at his legs, and prison personnel failed to secure his seat belt. After the accident, claimant was transported to the infirmary at Clinton via another van. Claimant was seen by a facility nurse, who noted no injuries, and he was returned to his cell. Two days later, he complained of pain in his back and was seen by the facility doctor. He was x-rayed and diagnosed with muscle spasms and a back and neck sprain.
As a passenger in a motor vehicle, claimant was a "covered person" as defined by Insurance Law § 5102 (j). Thus, as a threshold matter, claimant is required to plead and prove that he sustained a serious injury as defined by Insurance Law § 5102 (d) (see Zecca v Riccardelli, 293 AD2d 31 [2d Dept 2002]). "Serious injury" means a personal injury which results in (1) a permanent loss of use of a body organ, member, function or system, (2) a permanent consequential limitation of use of a body organ,
(3) a significant limitation of use of a body function or system,
or (4) a nonpermanent, medically-determined injury which prevented him from performing his daily activities for 90 of the first 180 days following the accident (Insurance Law § 5102 (d)). Claimant has the burden to submit expert medical evidence when the facts of the case so require (Duffen v State of New York, 245 AD2d 653 [3d dept 1997], lv denied 91 NY2d 810 [1998]). Subjective complaints of pain unsupported by credible or objective medical evidence or documentation are insufficient to establish the threshold issue of serious injury (Delaney v Lewis 256 AD2d 895, 897 [3d Dept 1998]).
Although the Court does not condone defendant’s failure to properly secure claimant’s seat belt, particularly when it does not appear that claimant was capable of doing it himself, claimant has failed to tender evidence that he suffered the type of injury required to establish a serious injury. The Court notes that claimant submitted his prison medical records for the days following the incident; however, these records do not make the requisite showing to establish a serious injury. Thus, the Court is constrained to dismiss the claim.
Let judgment be entered accordingly.

August 7, 2006
Albany, New York

Judge of the Court of Claims

[1]. To establish a permanent consequential limitation, a claimant must demonstrate more than a mild, minor or slight limitation of use (Jockimo v Abess, 304 AD2d 999, 1000 [3d Dept 2003]).
[2].To establish a significant limitation of use of body function or system, claimant's evidence must contain objective, quantitative evidence with respect to diminished range of motion or qualitative assessment comparing plaintiff's present limitations to normal function, purpose, and use of affected body organ, member, function, or system (Paton v Weltman, 23 AD3d 895, 897 [3d Dept 2005]).