New York State Court of Claims

New York State Court of Claims

STITH v. THE STATE OF NEW YORK, #2007-041-508, Claim No. 109694


Claim arising from injuries sustained in motor vehicle accident is dismissed where claimant offered proof amounting only to limited injuries and subjective complaints of pain. Claimant thus failed to prove a serious injury as required by Insurance Law § 5102.

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:
Defendant’s attorney:
New York State Attorney General
By: Frederick H. McGown, III, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose from a single vehicle traffic accident occurring on the New York State Thruway on August 7, 2002. A New York State Department of Correctional Services vehicle, transporting a number of state prison inmates, including Tyrone Stith (claimant), veered from the roadway and struck several reflecting poles before coming to a stop. The vehicle did not turn over.

As the vehicle struck the reflecting poles, the claimant was thrown into the seat back of the seat in front of him and then thrown to the floor. Claimant alleges injuries to his back and right knee, complaining principally of lower back pain which lasted for approximately 18 months after the accident.

Although there was an apparent dispute concerning the cause of the accident, the claim will ultimately be decided upon a finding of whether claimant sustained a ‘serious injury’ as set forth under Article 51 of the Insurance Law. While the Court credits claimant’s testimony that the vehicle veered from the road due to the two correction officers who were transporting the prisoners dozing off, rather than their apparent insistence that evasive action was required to avoid hitting a deer, whether claimant prevails will necessarily turn upon whether he incurred a serious injury.

§ 5104 (a) of the Insurance Law reads:

“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. . .”

Further, § 5102 (d) of the Insurance Law defines serious injury as:

“ ‘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 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.”

Claimant was the only witness at trial. No exhibits were introduced. The defendant called no witnesses and at the conclusion of claimant’s testimony, the defendant moved to dismiss the claim for failure of claimant to make a prima facie case. At trial the Court reserved decision upon defendant’s motion. The Court now grants defendant’s motion to dismiss.

Claimant gave very brief and very general testimony concerning his injuries. He testified to having suffered injuries to his upper and lower back and to his right knee. He thereafter only mentioned pain that he endured in his lower back for approximately 18 months after the accident and indicated the prescribed treatment for it as X-rays, assigned exercises, therapy and pain killers. While he indicated the pain had generally ceased in his lower back, he also reported feeling pain there from time to time, upon making certain body movements. This represents, in its entirety, the substance of the proof given to describe and prove the claimant’s injuries. No expert medical testimony was given nor were any medical records (although mention was made of X-rays having been taken) were introduced.

The purpose of requiring proof of a serious injury in cases brought under the No-Fault Law is “to weed out frivolous claims and limit recovery to significant injuries” (Dufel v Green, 84 NY2d 795, 798 [1995]). In order to satisfy the statutory serious injury threshold a plaintiff must present objective proof of a qualifying injury (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Case law demonstrates that “minor, mild or slight limitations in range of motion or mere subjective complaints of pain will not satisfy the serious injury threshold” (Parks v Miclette, 41 AD3d 1107, 1109 [3d Dept 2007]; see Gaddy v Eyler, 79 NY2d 955, 957-958 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]; Pianka v Pereira, 24 AD3d 1084, 1086 [3d Dept 2005]; Gonzalez v Green, 24 AD3d 939, 940-941 [3d Dept 2005]; Latiuk v Cona, 272 AD2d 988 [4th Dept 2000]; Marotta v Mastroianni, 273 AD2d 206 [2d Dept 2000]).

Claimant did not offer competent medical proof of any medically determined injury as the source of his pain. Further, claimant failed to prove that any of his injuries qualified under any particular category of injury set forth in Insurance Law § 5102, instead offering only subjective complaints of pain.

Having failed to prove a serious injury, as required and defined under Article 51 of the Insurance Law, defendant’s motion to dismiss is granted. The claim is dismissed.

All motions not previously decided are hereby denied. Let judgment be entered accordingly.

August 23, 2007
Albany, New York

Judge of the Court of Claims