Considerations from Automobile Accidents in New York: Burgio, Kita & Curvin

No Claim for Non-Economic Loss in Automobile Accident Cases Absent a “Serious Injury” in New York

Under New York Law, there is no right of recovery for non- economic loss in automobile accident cases (with the exception of motorcycle accident cases) unless the injured party has sustained a “serious injury” (New York Insurance Law Section 5104(a)).

A “serious injury” is defined by New York Law as 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 (but the loss of use must be total and not partial under this category); permanent consequential limitation of use of a body organ or member (loss can be partial or total); significant limitation of use of a body function or system (loss can be partial or total); 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 persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (New York Insurance Law Section 5102(d)).

Psychiatric Injuries and “Somatization Complex”;

Requirement in New York State of Objective

Evidence of Physical Injury in
Motor Vehicle Accident Cases

Although there is case law in New York State indicating that, under certain circumstances, a mental or emotional impairment may constitute a “serious injury” there must be some type of relation between the injuries and the accident as well as some objectively verifiable physical injury (Toure v. Avis, 98 N.Y.S.2d 345, 746 N.Y.S.2d 865 (2002); in some cases, a finding of a spasm, unless sufficiently documented, will not qualify as objective evidence of a physical injury (Nitti v. Clerrico, decided with Toure v. Avis) see also Kristel v. Mitchell, 270 A.D.2d 598, 703 N.Y.S.2d 828 (3rd Dept., 2000); Decker v. Stang, 243 A.D.2d 1033, 663 N.Y.S.2d 448 (3rd Dept., 1997); Garvey v. Riela, 272 A.D.2d 519, 708 N.Y.S.2d 148 (2nd Dept., 200)).

Plaintiff’s complaints of pain alone are insufficient to establish a “serious injury” in order to allow the plaintiff to qualify for a tort lawsuit (Scheer v. Koubeck, 70 N.Y.2d 678, 518 N.Y.S.2d 788 (1987); Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 (1992); Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982)).

The determination concerning a “serious injury” is one that initially must be made by the Court (Nolan v. Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516 (2nd Dept., 1984)).

With regard to psychiatric testimony, it has been held that a psychiatrist may not testify concerning objective medical findings of another physician (Latiuk v. Cona, 272 A.D.2d 988, 708 N.Y.S.2d 531 (4th Dept., 2000)).

A psychologist is not a physician who may give medical proof necessary to demonstrate a “serious injury” as that term is defined under New York No-Fault Law (Hohlakis v. Raymond Rizzo Associates, 164 Misc.2d 374, 626 N.Y.S.2d 383 (Sup.Ct. Kings Co., 1995)) in a well-reasoned decision, the Court in Poblet v. Parisi, 130 Misc.2d 521, 496 N.Y.S.2d at 936 (Sup.Ct. Queens Co., 1985) determined that a psychiatric/psychological injury is not the type of injury that arises to the level of a “serious injury” within the meaning of New York No-Fault Law so as to allow the injured party to bring a claim for damages.

Have a legal problem in New York State and need advice? Have a lawsuit in New York State and need someone to represent your insured’s interests? Contact Burgio, Kita & Curvin, 2150 Main Place Tower, Buffalo, New York 14202, (800) 853-1744