State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This is the defendant's summary judgment motion. The case concerns an accident at a fall festival; plaintiff Sandra Guerin was allegedly struck by the extended side-view mirror of a shuttle bus as she waited to be picked up from the parking area. She has suffered from headaches and other pain from that time on, and sued both the driver and his employer. The driver is now dead, and the suit continues against Laidlaw Transit only. Laidlaw claims that she has not established that she suffers from a serious injury.

The court agrees. The plaintiff claims that her injuries fall under two of the categories of "serious injury" as defined in Insurance Law § 5102 (d): "permanent consequential limitation of use of a body organ or member; [and] significant limitation of use of a body function or system". No such limitation is established by her papers. At best, her medical evidence shows significant and ongoing pain as a result of the accident; and pain in and of itself, even if medically supported, does not amount to a "limitation of use".

Plaintiffs lay great stress on the reports of identifiable palpitation points. These would indicate that Mrs. Guerin's complaints of pain are not in fact subjective but are referable to organic injuries. But the issue of medical determination that is resolved by this evidence is not relevant to the claims made here. They would serve as support had plaintiffs proceeded under one of the Insurance Law 's alternative definitions of serious injury--"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".

Mrs. Guerin, though, does not claim that she was so impaired. She relies instead on the case of Barbagallo v Quackenbush (271 AD2d 724), where the Third Department accepted evidence of trigger points in a claim of significant limitation of use. In that case, however, the trigger point evidence provided medical justification for the claim that the plaintiff had suffered a 25 percent reduction in the use of her cervical spine. This conclusion was additionally supported by a second physician's report that the plaintiff had limited range of movement in the cervical spine and bursitis as well as muscle spasms and pain.

In the present case all of Mrs. Guerin's symptoms can be reduced to pain. She has not shown any reduced range of motion or limitation of use of a specific body function, system or member. Indeed, it is characteristic of chronic pain that it affects all of a person's activities.

The court has no wish to make light of the difficulty of living with chronic pain, and sympathizes with the plaintiff. But it must conclude that pain, by itself, must be not only medically determined but meet the ninety out of 180-day rule in Insurance Law § 5102 (d) to be considered a serious injury. By itself it does not constitute a limitation of use.

Defendants' counsel may prepare the order. No costs are payable.

DATED: Rochester, New York

September 27, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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