Colenzo v. Kernan
| Decision Date | 24 September 1975 |
| Parties | Andrew COLENZO, Respondent, v. Steven C. KERNAN, Defendant, and Shirley S. Kernan, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kernan & Kernan, James W. Morgan, Utica, for appellant.
Louis T. Brindisi, Utica, for respondent.
Before MARSH, P.J., and MOULE, MAHONEY, GOLDMAN and WITMER, JJ.
In this action to recover damages for personal injuries suffered by plaintiff in an automobile accident which occurred in the City of Utica on June 26, 1974 defendant moved for summary judgment of dismissal of the complaint upon the ground that under New York's no-fault insurance law, plaintiff has no cause of action against defendant but must resort solely to a claim against his own insurance carrier. This appeal is from the order denying that motion.
Section 673 of the Insurance Law provides that, '1. Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, Except in the case of a serious injury, or for basic economic loss' (emphasis added). 'Serious injury' is defined in section 671, subd. 4 of that law as a personal injury, '(a) which results in death; dismemberment; significant disfigurement; a compound or comminuted fracture; or Permanent loss of use of a body organ, member, function, or system; or, (b) if the reasonable and customary charges for medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services necessarily performed as a result of the injury would exceed five hundred dollars' (emphasis added).
Subdivision (b), supra, will not support plaintiff's action herein unless his medical and hospital bills exceed the sum of $500. His bill of particulars shows that those bills amount only to $412.35, unless a further bill in the sum of $135 for physical therapy can be included as a medical bill. In defining 'basic economic loss' in section 671, subd. 1(a)(i) and (ii) of the Insurance Law the Legislature differentiated between medical and hospital expenses as used in section 671, subd. 4(b) of that law and physical therapy. Regardless of whether there is a reasonable basis for such a distinction, it must be held that under the statute physical therapy bills are not included in medical and hospital bills (Goldwire v. Youngs, 82...
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