3 No. 72
Richard Oberly et al.,
Appellants,
v.
Bangs Ambulance Inc.,
Respondent.
_________________________________________________________________
2001 NY Int. 55
May 3, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Michael J. Hutter, for appellants.
Theodore J. Mlynarski, Jr., for respondent.
_________________________________________________________________
SMITH, J.:
The No-Fault Law provides a plan for compensating victims of
automobile accidents for their economic losses without regard to fault
or negligence. An injured party may bring a plenary action in tort,
however, to recover for non-economic loss, pain and suffering, but
must show that he or she has suffered a serious injury within the
meaning of the No-Fault Law. The issue before this Court is whether a
party bringing a claim under the no-fault serious injury category of
"permanent loss of use of a body organ, member, function or system" is
required to prove that the loss of use is significant or
consequential.
We conclude that only a total loss of use is compensable under the
"permanent loss of use" exception to the no-fault remedy. Insofar as
plaintiffs have not established total "loss of use" and have abandoned
any claim concerning a "permanent consequential limitation" or
"significant limitation of use of a body function or system," they
have failed to establish a "serious injury" within the meaning of the
No-Fault Law.
Plaintiff Richard Oberly, a dentist, was injured while being
transported in an ambulance owned by defendant Bangs Ambulance.
Plaintiff was positioned face-up on a stretcher with an IV needle in
his arm, and a five-pound IV pump was set on a shelf above him. While
in transit, the ambulance struck a curb, and the IV pump toppled from
the shelf and fell on his right forearm. Plaintiff suffered bruising
SNIPPETS:
Theodore J. Mlynarski, Jr., for respondent.
The No-Fault Law provides a plan for compensating victims of automobile accidents for their
An injured party may bring a plenary action in tort, however, to recover for non-economic
The issue before this Court is whether a party bringing a claim under the no-fault serious
Insofar as plaintiffs have not established total "loss of use" and have abandoned any claim
Plaintiff Richard Oberly, a dentist, was injured while being transported in an ambulance
Plaintiff suffered bruising and continues to complain of pain and cramping in that arm, which
Plaintiff and his wife commenced this personal injury action for negligence, alleging a
In opposing summary judgment, plaintiffs abandoned all of the cited serious injury standards
The Appellate Division affirmed, ruling that the statute requires a party claiming a partial
They also contend that the limitation of the use of plaintiff's arm itself qualifies as
As originally enacted, it contained two categories of "serious injury": first, claims for
Our holding today proceeds from both the statutory text and from the conclusion that the
Thus, the legislative intent is shown in the actual wording of the statute (Majewski v
Second, requiring a total loss is consistent with the statutory addition, in 1977, of the
Chief Judge Kaye and Judges Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
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