Scheer v. Koubek
| Decision Date | 07 July 1987 |
| Citation | 512 N.E.2d 309,70 N.Y.2d 678,518 N.Y.S.2d 788 |
| Parties | , 512 N.E.2d 309 Charlotte K. SCHEER, Respondent, v. Daniel H. KOUBEK, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 126 A.D.2d 922, 511 N.Y.S.2d 435, should be reversed, with costs, and the complaint dismissed.
Plaintiff has failed to make out her prima facie case of "serious injury" by "significant limitation of use of a body function or system" (Insurance Law § 5102[d] ). Plaintiff's proof that she suffered a soft tissue injury, described by her own expert as "mild," and which, at the time of trial, resulted in no restriction of plaintiff's mobility, is not a "serious injury" under the No-Fault Insurance Law. We reject the holding of the majority of the Third Department that under these circumstances, pain may form the basis of "serious injury". To so hold would undercut the policy behind the No-Fault insurance scheme to reduce the number of automobile personal injury accident cases litigated in the courts and frustrate the Legislature's attempt to put an objective verbal definition of serious injury (Licari v. Elliott, 57 N.Y.2d 230, 236, 239, 455 N.Y.S.2d 570, 441 N.E.2d 1088; see, Thrall v. City of Syracuse, 96 A.D.2d 715, 464 N.Y.S.2d 1022, revd. on dissenting opn. below 60 N.Y.2d 950, 471 N.Y.S.2d 51, 459 N.E.2d 160, rearg. denied 61 N.Y.2d 905, 474 N.Y.S.2d 1027, 462 N.E.2d 1205). The subjective quality of plaintiff's transitory pain does not fall within the objective verbal definition of serious injury as contemplated by the No-Fault Insurance Law (Licari v. Elliott, 57 N.Y.2d, at 239, 455 N.Y.S.2d 570, 441 N.E.2d 1088, supra).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.
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