Opinion
No. CV02 039 03 20
August 13, 2008
MEMORANDUM OF DECISION
The plaintiff instituted the present action seeking to recover monetary damages for personal injuries sustained as a result of a motor vehicle accident occurring in the Bronx, New York. The plaintiff is a Connecticut resident and was operating a motor vehicle in the state of New York where he claims to have sustained personal injuries as a result of the negligent operation of a motor vehicle by the operator of a tracker trailer truck who was licensed in New York and who resided in New York. The truck itself was registered in New York to a company with its place of business in New York.
The defendants claim that they are entitled to judgment as a matter of law because the issues are to be determined by the application of the law of the State of New York and that the plaintiff's claim does not satisfy the minimum requirements for a "serious injury" as set forth in the New York no-fault law.
In Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359 (1994), our Supreme Court was presented with a similar case in which a Connecticut resident was involved in a motor vehicle accident taking place in the State of New York involving a vehicle registered in the State of New York. In that case the court noted that the plaintiff would be entitled to the benefits of the New York no-fault insurance laws and, in applying the Restatement of Conflict of Laws, the Court stated: "[W]eighing these interests, we conclude that the law of New York is the correct law to apply in the circumstances of this case. Connecticut's interests are sufficiently satisfied by the application of New York law and New York's interests are satisfied in the application of its own law. Most important, New York has the greatest contact with the conduct that gave rise to the case." (p. 375.) Accordingly, the court concludes that the law of the State of New York governs the issues presented in this case.
As applied to the facts of the present case, the law of the State of New York limits the right to bring tort actions for those situations which involve "serious injury." A "serious injury" is defined in § 5102(d) of New York Insurance Law (McKinney) as follows:
Tort actions are also permitted when the basic economic loss is in the amount of $50,000 which is not applicable in this case because the only economic loss submitted in this case was in the amount of $3,883.00 for medical expenses and there was no evidence submitted regarding claims for loss of earnings or other economic losses.
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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
The accident took place on April 11, 2000 and the plaintiff first saw his orthopaedic physician on April 18 complaining of neck and shoulder pain. The doctor diagnosed the condition as a cervical spine musculoligamentous sprain and sprain of both shoulders and x-rays were negative. The medical reports indicate that by May 25 the plaintiff was back to his regular work. He was last seen on September 21, 2000 for a final comprehensive office visit. The plaintiff had trouble with his neck mostly on his right side, inclement weather bothers him and he is achy and stiff in the morning but feels better after he gets going. It's a dull aching pain and has trouble with rotation, bending, sitting with his head down, and doing his job. The report states that the plaintiff does the same things but now with pain and discomfort on the right side of the neck. While the report notes the existence of spasms, the physical therapy notes for the same date indicate that the plaintiff is progressing satisfactorily and that he continues to experience "moderate intermittent pain." At that time the doctor released the plaintiff with a 5 to 6% permanent partial disability of the cervical spine and advised to return to the office if there is any increase in symptoms. There is no credible evidence of any further medical treatment after September 21, 2000.
Such a history of treatment does not qualify as a serious injury under New York law. See such cases as Sewell v. Kaplan, 747 N.Y.S .2d 859 (2001); Ferguson v. Ozog, 732 N.Y.S.2d 311 (2001); Paolini v. Sienkiewicz, 691 N.Y.S.2d 836 (1999). See also, Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 774 N.E.2d 1197 (2002).
In describing the nature of the injury suffered to satisfy New York's no-fault law our Supreme Court has stated: "The records of one physician indicated that the plaintiff had suffered no permanent disability as a result of the accident. The records of two other physicians indicated that the plaintiff had suffered, at worst, a 15% permanent partial disability of the cervical spine. Although the plaintiff testified to persistent discomfort from the injury, the record indicates that he has continued to work, exercise and essentially maintain his customary lifestyle. The New York courts have consistently maintained that greater injury than this is required to qualify as a serious injury in this context." (Citations omitted.) Williams v. State Farm Mutual Automobile Insurance Co., supra at 377.
Accordingly, the court enters judgment in favor of the defendants.