Torres v State of New York

[*1] Torres v State of New York 2005 NY Slip Op 50755(U) Decided on April 26, 2005 Ct Cl Midey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2005
Ct Cl

GUILLERMO TORRES, Claimant(s),

against

STATE OF NEW YORK, Defendant(s)



105148



Claimant's attorney:GUILLERMO TORRES, Pro Se

Defendant's attorney:HON. ELIOT SPITZER

Attorney General

BY: Roger B. Williams, Esq.,

Assistant Attorney General

Of Counsel.

Third-party defendant's attorney:

Nicholas V. Midey, J.

Synopsis:

Defendant's motion to dismiss the claim was granted, based upon the Court's finding that claimant had not sustained a serious injury pursuant to Insurance Law § 5102(d).

Recitation:

Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion: Notice of Motion, Affirmation, with Exhibits 1,2[*2]

Defendant's Motion Memorandum3



Text of the decision:

The Court notes that claimant has not submitted any papers in opposition to this motion.[FN1]

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 6).

Based upon the foregoing evidence, defendant has established a prima facie entitlement to [*3]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 NY2d 955).

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.

Appendices: Footnotes

Footnote 1: In a prior Decision and Order (Motion No. M-68340), this Court relieved claimant's former attorney from any further representation of claimant in this claim. Since the date of that Decision and Order, the Court has not been contacted in any manner whatsoever by claimant with regard to this claim.