In opposition, plaintiff argued that she was injured after she exited the bus and therefore was not a covered person pursuant to the No–Fault who has to satisfy the serious threshold. Plaintiff further argued that defendants’ liability did not arise from its use and operation of the bus, but rather from its duty to provide plaintiff with a safe place to alight from the bus. Alternatively, plaintiff argued that if the threshold statute were to apply, defendants failed to meet their burden on summary judgment. Finally, plaintiff argued that, if defendants were found to have met their burden, she raised a triable issue of fact by the submission of objective medical evidence. Essentially, plaintiff submitted the affirmed report of an orthopedist who examined her twelve days after the fall and an MRI of her left knee, dated June 17, 2008, which revealed some swelling. The orthopedist’s examination revealed moderate limitations in the range of motion of plaintiff’s left ankle.
The court rejected defendants’ argument that plaintiff’s accident arose from the use or operation of the bus so as to implicate the No–Fault Law. The court reasoned that the accident did not occur because of the inherent nature of the bus, it occurred outside the bus; the bus itself did not produce the injury.” The court further noted that defendants did not address whether, as a common carrier, they breached their duty to stop the bus at a place where plaintiff could safely disembark. Accordingly, the court denied defendants’ motion, prompting this appeal.
One of the main features of the No–Fault Insurance Law is that it limits the right to bring a personal injury action for damages arising out of an automobile accident (Insurance Law § 5104[a] ). On the one hand, first-party benefits, also referred to as basic economic loss coverage, are available to a covered person regardless of fault. On the other hand, in exchange for receiving such no-fault benefits, a person injured in an automobile accident may bring a plenary action in tort to recover for noneconomic loss but only if he or she has suffered a “serious injury” within the meaning of the No–Fault Law.
In this case, where plaintiff alleges only non-economic loss, it cannot be seriously disputed that she did not suffer a serious injury as defined by Insurance Law § 5102(d). Defendants established lack of serious injury by submitting, inter alia, the affirmed reports of an orthopedist and a neurologist, who both examined plaintiff, found normal ranges of motion on her left ankle, and reached the same conclusion that she sustained a resolved ankle sprain. In response, plaintiff failed to present any objective findings that she sustained any serious injury. While she submitted an MRI report, that report did not indicate that anything was wrong with her ankle, other than some swelling, which is not a serious injury. In addition, plaintiff failed to submit a recent examination finding limitations in range of motion, after defendants’ expert found none. Finally, plaintiff’s testimony refuted any 90/180–day claim, since she testified that she was confined to her home mostly the first week and confined to her bed the first few days, about two or three days.