Click here to download our printable quick guide to New York PIP recovery (Current as of February 16, 2022).
Click here for our Guide to Recovery of PIP in New Jersey.

This is a basic primer on New York law pertaining to recovery and/or subrogation of no-fault (AKA "PIP") payments.  It by no means covers all the intricacies of New York law, and therefore should be used as reference only. Some issues of law may be mentioned more than once on this page, where we felt the issue belongs under more than one heading.  This document is provided as a reference guide only and is provided subject to this disclaimer. This page current as of February 16, 2022.

• February 16, 2022: Expanded discussion of the treatment of Optional Basic Economic Loss (OBEL).
• June 11, 2021: Added discussion of how COVID affects statutes of limitation in New York..
• March 18, 2021: Added discussion of the availaiblity of worker's compensation benefits for rideshare (TNC) drivers to the discussion of priority of payment for PIP benefits in acciddents involving TNCs.
• August 19, 2020: Added video: "Introduction to PIP Recovery in New York."
• August 7, 2019: Added discussion of "TNC" vehicles (rideshare vehicles such as Uber and Lyft) to sections on loss-transfer (i.e. PIP recovery where a vehicle involved in an accident is a “vehicle for hire") and priority of payment (i.e. discussion of how to determine which insurer(s) owe PIP when a rideshare vehicle is involved). Also, added some notes in the discussion of New York minimum liability insurance requirements including regarding special requirements for New York City taxis and limousines and regarding Veh. Traf. L. 1695(6) providing a method to investigate whether a driver was connected to a rideshare network at the time of an accident. Updated the printable quick guide to New York PIP recovery to include some notes regarding rideshare vehicles.
• August 15, 2019: Added a note to the discussion of loss-transfer regarding TNC trips initiating outside of New York State. Updated the printable quick guide to New York PIP recovery to reflect the same point.
• November 21, 2018: Added brief discussion of relationship between choice of law and New York's Anti-Subrogation Law (direct link to discussion of choice of law).
• February 4, 2016: Added some case notes to the section on vicarious liability of a vehicle owner.
• November 23, 2015: Added note that a PIP carrier is not entitled to a lien against uninsured motorist benefits nor may PIP benefits be used as an offset against uninsured motorist benefits.
• November 5, 2015:Added link to our new New York Dram Shop and Social Host Liability Law web page (link opens in new tab) in the discussion of PIP being recoverable from non motor-vehicle tortfeasors.
• Added October 18, 2015: Added additional case references to recovery of PIP from other than automobiles (e.g. medical malpractice, dram shop claims) here.
• Added October 8, 2015: Added further explanation to discussion of the fact that an insured's attorney is not entitled to a contingency fee on satisfying a PIP lien under N.Y. Ins. L. 5104(b) and added similar discussion to satisfaction of APIP liens in discussion of APIP recovery.
• Added September 7, 2015:Discussion of dual coverage situations to discussion of priority of payments
• Added August 10, 2015: Discussion of when the "reckless disregard" standard applies to public vehicles working on roads and emergency vehicles.
• Added March 25, 2015: Some clarification of the interplay of New York's Anti-Subrogaiton Law and "Made Whole Doctrine" and ERISA plans.
• Added January 26, 2015:
  • Discussion of what it means for a 6,500 pound vehicle or vehicle for hire to be "involved" in an accident so as to trigger section N.Y. Ins. L. 5105.
  • Discussion of what it means for a vehicle to be a "motor vehicle used principally for the transportation of ... property for hire" and that this does not apply to the average delivery truck.
  • Discussion of the standard of the court's review of arbitration decisions in voluntary arbitration and in arbitration required pursuant to N.Y. Ins. L. 5105.
  • Discussion of procedures where there is a dispute as to whether there is a right of recovery under N.Y. Ins. L. 5105, including possible stay of arbitration.

CONTENTS:

• N.Y. Insurance Law § 5104 (a):
  • No recovery of PIP by one "covered person" against another "covered person."
  • No recovery for "pain and suffering" from a "covered person" without reaching the "serious injury threshold".
• N.Y. Insurance Law § 5104 (b): Recovery of PIP damages (and "pain and suffering") from a non-covered person.
• N.Y. Insurance Law § 5105 (a): Right to recover PIP if one car involved is over 6,500 pound unloaded or a vehicle principally used for transportation for hire.
• N.Y. Insurance Law § 5105 (b): Disputes between insurers must be resolved through arbitration (Arbitration Forums).
• N.Y. Insurance Law § 5105 (c): Amounts recovered for PIP do not diminish adverse insurer's liability policy limits for other claims.
• Other selected New York laws related to subrogation.
• Selected New York Statutes of Limitation
• How Does COVID Affect New York Statutes of Limitations?
• New York Minimum Automobile Insurance Requirements
• The effect on subrogation rights if the insured signs a release for the adverse party.
• Additional PIP may be subrogated.
• Joint and several liability in New York
• A limited exception to joint and several liability in New York.
• BE CAREFUL SETTLING WITH JOINT TORTFEASORS!
• New York is a Pure Comparative Negligence State
• New York's Anti-Subrogation Law (includes discussion of ERISA subrogation)
• Selected special rules for claims against government entities (e.g. New York state, municipalities, etc.).
  • Tort claims Notice and Statutes of Limitation.
  • Requirement of written notice of a defect in the road.
  • Immunity for certain vehicles absent "reckless disregard for the safety of others."
• Vicarious Liability Of Motor Vehicle Owners Except As Superceded By Federal Law
• Selected issues regarding rental cars and insurance
• Discussion of TNC vehicles (i.e. rideshare vehicles such as Uber and Lyft)

N.Y. Insurance Law § 5104 (a):No recovery by one "covered person" against another "covered parson" of PIP. Also, no recovery of "pain and suffering" from a "covered person" without reaching the "serious injury threshold".

(a) 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. The owner, operator or occupant of a motorcycle which has in effect the financial security required by article six or eight of the vehicle and traffic law, or which is referred to in subdivision two of section three hundred twenty-one of such law, shall not be subject to an action by or on behalf of a covered person for recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.

What this statute says:

• If the vehicles involved in an accident are "covered," they can not sue each other for losses covered (or that should be covered) by PIP. They also cannot sue for pain and suffering types of losses unless there was a "serious injury."  Note that section 5105, discussed below, will introduce significant exceptions to this rule (i.e. when one of the vehicles involved in the accident weighs more than 6,500 pounds, or is a vehicle for hire).
• A motorcycle which is properly insured is afforded the same protection from suit.  Note that this provision is necessary, as the driver of a motorcycle does not fit the definition of a "covered person."  By the same token, this indicates that this section does not deny the motorcycle driver the right to sue. (This is discussed further in the notes below).

Notes on This Section:

• PLEADINGS: This statute allows law suits to recover two types of damages from a covered person: "pain and suffering" type damages if there is serious injury and economic losses (i.e. medical bills, lost wages etc.) that go beyond what should be covered by PIP (i.e. above basic economic loss). CPLR 3016(g) reqiures that the complaint in such actions must specify that these damages occured. Therefore:
• In order for one covered person to recover pain and suffering from a covered person, the complaint must state that the plaintiff sustained serious injury as defined in Insurance Law 5102(d). This rule also applies when an insurer makes an underinsured motorist subrogation claim.
• In an action to recover economic losses beyond PIP (i.e. Additional PIP expenses of the insurer or expenses incurred by the injured party), the complaint must state that the plaintiff sustained economic loss greater than basic economic loss as defined in 5102(a).
• Failure to plead serious injury and/or economic damages beyond basic economic loss is grounds for dismissal. Monahan v. Twyman, 79 Misc.2d 44, 359 N.Y.S.2d 518 (Sup. Ct. Ulster Cty 1974), Agnostakios v. Laureano, 85 Misc.2d 203, 379 N.Y.S.2d 664 (N.Y.City Civ.Ct. 1976).

• Optional Basic Economic Loss (OBEL) is treated the same way as regular PIP. Ins. L. 5102(a)(5) says that there is an option to purchase an additional $25,000 worth of PIP coverage (over and above the $50,000 standard) and that this amount (known as OBEL, or "Optional Basic Economic Loss") is part of the term "basic economic loss." This means that all provisions of the insurance law apply equally to OBEL as they apply to PIP.

  Although no case law has definitively addressed this point, see Insurance Department, Opinions of General Counsel, Opinion Number 03-08-04 stating that a truck which lacked OBEL coverage was still subject to a loss-transfer claim for $75,000 (i.e. PIP + OBEL). See further Matter of Allstate Ins. Co. v. Travelers Cos., Inc., 159 A.D.3d 982 (2nd Dept. 2018) upholding an arbitration award of $75,000, which technically doesn't mean the arbitrator's decision was "right," just that the decision was not arbitrary, and Allstate Ins. Co. v. New York, 72 Misc. 3d 402 (Sup. Ct. Albany Cty. 2021), where both parties agreed that OBEL can be recovered in loss-transfer. However, compare Town of Huntington v. Allstate Ins. Co., 2020 NY Slip Op 34504(U) (Sup. Ct. Erie Ct. 2019) Affirmed 193 A.D.3d 1371 (4th Dept. 2021) and Matter of Tech. Ins. Co. v. Allstate Ins. Co., 2019 NY Slip Op 31720(U) (Sup. Ct. N.Y. Cty. 2019), both upholding arbitrators' rulings that a worker's compensation carrier paying compensation in lieu of PIP could only recover $50,000 via loss-transfer arbitration even though their injured employee had OBEL coverage. Again, an arbitrator's ruling being upheld by a court doesn't mean that the arbitrator's decision was "right," and the court in Town of Huntington v. Allstate Ins. Co. seemed to hint that it disagreed with the arbitrator's ruling (we disagree as well).

• Additional PIP may be recovered. For further analysis of APIP recovery, see the discussion of APIP, below in "Other selected New York laws related to subrogation."

• Accidents outside New York: This statute only precludes recovery of basic economic loss for an accident which occurs in New York. Federal Ins. Co. v. Barsky, 267 A.D.2d 275, 700 N.Y.S.2d 57(2nd Dept. 1999), c.f. Hunter v. OOIDA Risk Retention Group, Inc., 909 N.Y.S.2d 88 (2nd Dept. 2010). The Hunter decision did not reach the question of whether OOIDA had common-law subrogation rights to recover its PIP payments (since, again, 5104(a) did not prevent such a recovery) or whether a lien under 5104(b) might apply if the tortfeasor is a "non-covered" person. Note that to the extent that common-law PIP subrogation recovery would be permitted, it is likely that those recovery rights would be limited by New York's Anti-Subrogation Law. NOTE: we do not state any opinion as to the laws of any other State. Many other states' laws prohibit recovery of PIP type losses for accidents in their state and choice of law may favor that other state's laws. For further discussion of out of state accidents, see our discussions under section 5104(b) and 5105(b).

• Out of state vehicles. Out of state vehicles can qualify as "covered persons" if they are insured by companies authorized to issue policies in NY or which have filed with the NY Commissioner of Motor Vehicles authorizing the commissioner to accept service of process on their behalf and stating that their policies will be varied to meet NY insurance requirements. If these requirements are met, the vehicle is a "covered person" for purposes of Ins. L. 5104 and 5105, Hunter v. OOIDA Risk Retention Group, Inc., 909 N.Y.S.2d 88 (2nd Dept. 2010) See further Nationwide Ins. Co. v. Morigerato, 215 A.D.2d 994, 995 (3rd Dept. 1995), Aetna Life & Cas. Co. v Allstate Ins. Co. 616 N.Y.S.2d 838 (4th Dept. 1994), and Fireman's Ins. Co. v. Le Compte, 599 N.Y.S.2d 139 (3rd. Dept. 1993). For more information on how out-of-state vehicles can qualify as "covered person"s, please see the definition of "covered person".

  This means that an out-of-state vehicle that qualifies as covered person will not be subject to recovery of PIP (except as provided in Section 5105(a), discussed below) and will not be subject to recovery of non-economic loss (i.e. pain and suffering) absent serious injury.

• Federal Vehicles. Federal vehicles (e.g. post office vehicles) are included in the definition of "covered persons" as the definition of "covered person includes vehicles referred to Veh. and Traf. 321, a section that exempts federal vehicles from New York insurance requirements. I.e. the New York statute is designed to treat federal vehicles as "covered persons," but not to require them to carry New York insurance. See Cooper v United States, 635 F. Supp. 1169 (S.D.N.Y., 1986). Generally, this means that under Ins. L. 5104(a) the federal government will not be subject to recovery of PIP for accidents involving a federal vehicle. As will be discussed below this is likely true even where Section 5105(a) would allow recovery from a "covered person". The federal government will also not be subject to recovery of non-economic loss (i.e. pain and suffering) absent serious injury. Patrello v. United States, 757 F. Supp. 216 (S.D.N.Y. 1991). As to federal government liability for other than the operation of a motor vehicle, see below.

  Note that although the federal government is generally not subject to PIP recovery, and because Federal vehicles are not required to afford PIP benefits to pedestrians they strike (or anyone else for that matter), Cooper allows a pedestrian struck by an at-fault federal vehicle to sue the United States for basic economic loss (i.e. the losses that would be covered under PIP in almost any other accident in New York).

• PIP can be recovered if a vehcle is insured by a company not authorized in New York or not meeting New York's required liability coverage: In order to be insulated from PIP recovery, one must be a "covered person." The definition of "covered person" requires having insurance that meets the requirements of V&T 311(4), which states that an automobile registered in New York must be insured by an "insurer duly authorized to transact business in" New York. Vehicles registered out of New York state must be insured by "an authorized insurer" or by an unauthorized insurer which has filed with the Commisioner of Insurance a letter "consenting to service of process and declaring its policies shall be deemed to be varied to comply with the requirements of this article." If these conditions are not met, PIP and "pain and suffering" can be recovered. Although it is not perfectly clear, it seems that unauthorized insurers are subject to the requirement of arbitration found in section 5105.

  For more information on how out-of-state vehicles can qualify as "covered person"s, please see the definition of "covered person".

• Motorcycles may recover Basic Economic Loss and are not subject to the "serious injury" requirement before recovering pain and suffering: This statute only precludes recovery by one "covered person" against another "covered person." "Covered person" is anyone who is covered under PIP. N.Y. Insurance Law § 5102(j) defines a "covered person" as: "Any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle . . ." The definition of a "motor vehicle," provided in § 5102(f) excludes a motorcycle. Several cases have therefore held that a motorcycle driver can sue for pain and suffering even without meeting the "serious injury" requirement. See e.g. Carbone v. Visco, 115 A.D.2d 948, 497 N.Y.S.2d 524 (4th Dept. 1985). Basic economic loss (i.e. what PIP would have covered, except that PIP does not apply to motorcycles) should also be recoverable on behalf of a motorcyclist based on this statute, but the anti-subrogation statute might get in the way of subrogation on behalf any insurer that paid those bills. See also Goodkin v. U.S., 773 F.2d 19 (2nd Cir. 1984) and Laba v. Petrullo,191 Misc.2d 758, 742 N.Y.S.2d 787 (Dist. Ct. Nassau Cty, 2002) indicating that a non-covered person is entitled to recover for economic loss.
• PIP may be recovered from any tortfeasor that is not a motor vehicle: See discussion of this point under discusion of Ins. L. 5104(b).

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N.Y. Insurance Law § 5104 (b): Recovery of PIP damages (and pain and suffering) from a non-covered person.

(b) In any action by or on behalf of a covered person, against a non-covered person, where damages for personal injuries arising out of the use or operation of a motor vehicle or a motorcycle may be recovered, an insurer which paid or is liable for first party benefits on account of such injuries has a lien against any recovery to the extent of benefits paid or payable by it to the covered person. No such action may be compromised by the covered person except with the written consent of the insurer, or with the approval of the court, or where the amount of such settlement exceeds fifty thousand dollars. The failure of such person to commence such action within two years after accrual gives the insurer a cause of action for the amount of first party benefits benefits paid or payable against any person who may be liable to the covered person for his personal injuries. The insurer's cause of action shall be in addition to the cause of action of the covered person except that in any action subsequently commenced by the covered person for such injuries, the amount of his basic economic loss loss shall not be recoverable.

What this statute says:

• A covered person may recover basic economic loss (i.e. the losses covered by PIP) from a party at fault for the accident. By extension, this will mean that the insurer who pays PIP benefits may recover from a non-covered person who is at fault. The balance of this subsection discusses how that recocvery is made.
  • If the covered person sues the non-covered person within two years of the accident , the covered person's insurance company has a lien against their recovery for the amount of PIP they paid. This means that:
    • The insurance company gets a portion of its insured's recovery equal to their PIP payments. So, if insurer has paid $25,000 in PIP, and the insured gets a $30,000 judgment, the insured keeps $5,000, and the insurance company gets $25,000. Note that the PIP bills will be considered in the case when the judge or jury assigns damages.
• The insured must protect the rights of the insurance company. This means that they can not settle the case without the insurance company's permission unless a judge signs off, or the recovery is at least $50,000, so that they can be certain they can pay back all of the insurance company's PIP losses.
  • If the insured does not sue within 2 years of the accident, the insurance company may then directly sue the non-covered person at fault to recover its PIP costs. In this case, the insured can still file suit as well, but will not be able to sue for the PIP losses, since the insruance company has already sued for that.

Notes on This Section:

• STATUTE OF LIMITATIONS for recovery of PIP from a non-covered person:The injured party has three years from the date of accident to sue for damages. The insurance company's right to sue begins only after two years have passed from the accident, and runs three years from then. Example: If the date of accident is January 5, 2005, the injured party can sue until January 5, 2008. If the injured party has not sued by January 5, 2007, then the insurance company can sue from January 5, 2007 through January 5, 2010. Safeco Ins. Co. of Amer. v. Jamaica Water Supply Co., 83 A.D.2d 427, 444 N.Y.S.2d 925 (2nd Dept. 1981) (per Hopkins, J.P.), aff'd 57 N.Y.2d 994, 457 N.Y.S.2d 245, 443 N.E.2d 493 (1982). NB: There is a different SOL for recovery of APIP and for the recovery of PIP from the insurer of a covered person.

• A PIP insurer asserting a lien should provide its insured's attorney with documentation: In order to protect its lien, a PIP insurer is best andvised to provide its insured's attorney with the trial proof needed to include the PIP benefits in the jury verdict. Hyde v. North River Ins. Co., 1981, 112 Misc.2d 855, 447 N.Y.S.2d 789, affirmed 92 A.D.2d 1001, 461 N.Y.S.2d 468.
• The PIP lien is created by operation of law. No notice is required. HOWEVER, NOTICE IS CERTAINLY ADVISABLE: Since the PIP lien is provided for by statute, it arises by law. Therefore, the failure of the PIP carrier to inform its insured of its lien does not prejudice the lien. General Acc. Ins. v. Roberts, 266 A.D.2d 791, 699 N.Y.S.2d 158 (3rd Dept. 1999), leave to appeal dismissed 94 N.Y.2d 899, 707 N.Y.S.2d 143, 728 N.E.2d 339 (2000). However, it is our opinion that providing some notice of this lien will be advisable, and will help avoid potential headaches later.
• Out of state vehicles. Certain out of state vehicles can qualify as "covered persons." See discussion above on how an out of state vehicle can qualify as a covered person. Out of state vehicles that qualify as "covered persons" will be entitled to recover PIP from a non-covered person as provided in this section and if at fault will not be subject to PIP recovery under this section (but will be subject to recovery under N.Y. Ins. L. 5105 (a) if a vehicle involved is over 6500 pounds or a vehicle for hire).

• Federal Vehicles. Federal vehicles are included in the definition of "covered persons". See discussion above. Hence, federal vehicles will not be subject to PIP recovery under this section and an insurer paying PIP will not have a lien against its insured's claim against the federal government (where a federal vehicle was involved). A federal entity that is liable for reasons other than its operation of a a motor vehicle and therefore isn't a “covered person” protected by the no-fault laws may be liable under 5104(b)(Federal tort claims procedures would likely apply to a claim for recovery). As will be discussed below there likely is no right of recovery of PIP from the federal government even where Section 5105(a) would allow recovery from a "covered person").

• Accidents outside New York: Unlike 5104(a), discussed above, which explicitly applies only to New York accidents (to prohibit recovery of PIP from a "covered person"), and Section 5105, which per Hunter v. OOIDA Risk Retention Group, Inc., 909 N.Y.S.2d 88 (2nd Dept. 2010) only permits recovery for accidents in New York (against a "covered person" in accidents involving certain qualified vehicles), see below, there is no indication in the statute whether this section, permitting a lien against the insured's bodily injury claim where the tortfeasor is not a "covered person" applies to accidents outside of New York. Note that an Insurance Department opinion on April 30, 2003, accessible here says that under New York law a PIP insurer may assert a lien on a claim by its insured against a non-covered person for an accident outside of New York. Insurance Department, Opinions of General Counsel, Opinion Number 03-04-35. However, the more recent passage of the Anti-Subrogation Law may apply and affect these rights. NOTE: we do not state any opinion as to the laws of any other State. Many other states' laws prohibit recovery of PIP type losses for accidents in their state and choice of law may favor that other state's laws. For further discussion of out of state accidents, see our discussions under section 5104(a) and 5105(b).
• Insured's attorney is not entitled to contingency fee on the lien amount: Breier v. Government Emp. Ins. Co., 79 A.D.2d 967 (1st. Dept. 1981)("[T]he contingency fee arrangement between the plaintiff Breier and her counsel could not be enforced against the lienor"). See further Allstate Ins. Co. v. Denbleyker, 280 A.D.2d 204, 206 (4th Dep't 2001)(addressing an APIP lien and agreeing with Breier). The Breier court noted that "[s]ome of us feel that there might be a claim in quantum meruit, but we do not reach that aspect." Thus, if an insurance company pays $50,000 in PIP, and the insured recovers $100,000 from a defendant who is not a "covered person," the Insurance company gets $50,000 (perhaps less some quantum meruit compensation for the attorney), and the attorney and his/her client share the remaining $50,000 as per their retainer.
• PIP may be recovered from any tortfeasor that is not a motor vehicle: N.Y. Insurance Law § 5104 (a) only prevents recovery from a covered person, which is to say a motor vehicle (or pedestrians) covered by the PIP system. If a person is injured, for instance, by negligent medical care, service of alcohol, a pothole, or by anything else, PIP may be recovered. Such recoveries would be governed by the rules of § 5104(b). Biette v. Baxter, 57 N.Y.2d 698 (1982)(manufacturer of a defective prosthetic device installed as a result of the injury), Dymond v. Dunn, 148 A.D.2d 56, 58 (3rd Dept. 1989)(dram shop claim), Aetna Ins. Co. v. Springsteen, 78 A.D.2d 532 (3rd. Dept. 1980)(medical malpractice). Regarding New York's liquor liability laws in general, please visit our New York Dram Shop and Social Host Liability Law web page for further discussion (link opens in new tab).
• A PIP carrier is not entitled to a lien against uninsured motorist benefits nor may PIP benefits be used as an offset against uninsured motorist benefits. Royal Globe Ins. Co. v. Connolly, 54 A.D.2d 1117, 1118 (4th Dept. 1976), Adams v. Government Employees Ins. Co., 52 A.D.2d 118, 120-121 (1st Dept. 1976), Sinicropi v. State Farm Ins. Co., 55 A.D.2d 957 (2nd Dept. 1977), Rabideau v. Aetna Casualty & Surety Co., 54 A.D.2d 1055 (3rd Dept. 1976) see further Spitaleri v. Hartford Acci. & Indem. Co., 88 Misc. 2d 431 (N.Y. Sup. Ct. N.Y. Cty. 1975), Szeszku v. Government Employees Ins. Co., 87 Misc. 2d 22 (N.Y. Sup. Ct. Queens Cty. 1976). We are not aware of any cases addressing a similar question for underinstured motorist benefits, though the rule would likely be the same based on the rationale of these cases. However, one might argue that the result should be different for uninsured motorist coverage as such coverage is not statutorily mandated and perhaps lien/offset language in such a policy might be permissible. See e.g. Valente v. Prudential Property & Casualty Ins. Co. 77 N.Y.2d 894, 895-896 (N.Y. 1991)(permitting supplemental uninsured motorist benefits to be offset by worker's compensation benefits).

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N.Y. Insurance Law § 5105 (a): Right to recover PIP if one car involved is over 6,500 pound uloaded or a vehicle principally used for transportation for hire.

(a) Any insurer liable for the payment of first party benefits to or on behalf of a covered person and any compensation provider paying benefits in lieu of first party benefits which another insurer would otherwise be obligated to pay pursuant to subsection (a) of section five thousand one hundred three of this article or section five thousand two hundred twenty-one of this chapter has the right to recover the amount paid from the insurer of any other covered person to the extent that such other covered person would have been liable, but for the provisions of this article, to pay damages in an action at law. In any case, the right to recover exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred pounds unloaded or is a motor vehicle used principally for the transportation of persons or property for hire. However, in the case of occupants of a bus other than operators, owners, and employees of the owner or operator of the bus, an insurer which, pursuant to paragraph one of subsection (a) of section five thousand one hundred three of this article of this article, provides coverage for first party benefits for such occupants under a policy providing first party benefits to the injured person and members of his household for loss arising out of the use or operation of any vehicle of such household, shall have no right to recover the amount of such benefits from the insurer of such bus.

• A carrier paying PIP (or workers' compensation benefits that would have been covered by PIP if workers' compensation did not apply), may recover against a responsible party provided that one of the motor vehicles involved in the accident either weighs 6,500 pounds unloaded or is a vehicle for hire. NOTES:
  • This kind of recovey is often refered to as "loss transfer."
  • The vehicle which is over 6,500 pounds or a vehicle for hire need not be the vehicle at fault in the accident.
  • This statute can be difficult to parse. The reference to "which another insurer would otherwise be obligated to pay pursuant to subsection (a) of section five thousand one hundred three of this article or section five thousand two hundred twenty-one of this chapter" refers to the worker's compensation carrier, meaning that if a worker's compensation carrier pays benefits which would otherwise have been covered by a PIP carrier, then the compensation carrier has the same right to recover under this statute. Note that per Insurance Law 5102(b)(2), worker's compensation is primary over PIP where both coverages would otherwise apply.
• A PIP carrier who paid PIP benefits to its insured which was injured as a passenger on a bus may not recover from the insurer of the bus unless the person was an operator, owner, or employee of the owner or operator of the bus.

Notes on This Section:

• STATUTE OF LIMITATIONS: See below, discussion on § 5105 (b).
• The right of an insurer to recover PIP from adverse insuer is a direct right:. I.e. the right is not "subrogated" from the insured, but a separate right held by the insurer. This means, among other things, that a release signed by the insured will not destroy the right to PIP loss transfer. See State Farm Mut. Auto. Ins. Co. v. City of Yonkers, 21 A.D.3d 1110, 801 N.Y.S.2d 624, (2nd Dept. 2005) and Doherty v. Barco Auto Leasing Co., 144 A.D.2d 424 (2nd Dept. 1988). The same is not true for the subrogation rights on Additional PIP, which is seen as an actual subrogation right rather than a statutory right. An insured signing a release may affect APIP recovery rights. See Nationwide Ins. Co. v. Mocchia, 663 N.Y.S.2d 640 (2ND Dept 1997). This different status of APIP probably is not affected by the fact that the new New York anti-subrogation law carves out an exception for APIP, since this exception merely affirms the APIP subrogation right, rather than creating a direct statutory right to recover APIP.
• Not all delivery trucks are "for hire.": State Farm Mut. Auto. Ins. Co. v. Aetna Cas. & Sur. Co., 132 A.D.2d 930,(4th Dept. 1987) affd. 71 N.Y.2d 1013 (1998) held that the term "for hire" in the phrase "motor vehicle used principally for the transportation of persons or property for hire" modifies the words "motor vehicle" rather than the words "persons" or "property." Hence, the court said that this phrase means that the involvement of "vehicles hired to transport people, such as taxis and buses, and livery vehicles hired to transport property," trigger the right of loss-transfer and not the involvement of vehicles used for "commercial deliveries by an owner of a vehicle." Further explanation of this analysis can be found in the Insurance Department, Opinions of General Counsel, Opinion dated 5/2/01. Note, of course, that many delivery trucks will weigh over 6,500 pounds and hence trigger section 5105 anyway.
• Does the involvement of a TNC vehicle trigger loss transfer claims? Ins. L. 5105 allows recovery of PIP where a vehicle involved in the accident was “used principally for the transportation of persons or property for hire." Are Transportation Network Company (TNC) vehicles (i.e. rideshare companies such as Uber and Lyft considered to be used principally for the transportation of persons or property for hire?" Does it matter how often the owner used the vehicle for rideshare purposes versus for personal use? Perhaps we could say that a vehicle is being used “principally for the transportation of persons or property for hire" whenever its driver is connected to the rideshare network. Does it matter if the rideshare vehicle has a customer, as opposed to riding around waiting to get a fare?

  The New York State Insurance Department has provided some guidance in the form of Circular Letter No. 4 (2019), although technically speaking a court would not be obligated to adopt the Insurance Department’s interpretation. The Insurance Department says that the Vehicle and Traffic law (particularly VTL Article 44-B, Veh. Traf. L. 1691 et. seq.) indicates vehicles providing TNC trips initiating within New York State but outside of New York City, are not considered “vehicles for hire" and therefore the involvement of a such a vehicle does not trigger loss-transfer. On the other hand, the Insurance Department notes that rideshare trips that initiate within New York City (or any city that enacts a local law pursuant to General Municipal Law 182, though we are not aware of any such city as of yet) are not subject to VTL Article 44-B (rideshares initiating in New York City are governed by New York City’s Taxi and Limousine Commission regulations) and hence “remain subject to all the laws that generally apply to for-hire vehicles and remain subject to the intercompany loss transfer provisions of Insurance Law § 5105." Similarly, the Insurance Department notes that because Veh. Traf. L. 1691(1) limits the defintition of "TNC vehicle" to trips initiating within New York state and hence Article 44-B does not apply to trips initiating outside of New York State, which presumably measns that a vehicle providing a rideshare trip that initiates outside of New York State is a "vehicle for hire" and its involvement will trigger the availability of loss transfer (though NB if it is an out-of-state vehicle, depending on how it is insured the driver of that vehicle may or may not qualify as a "covered person").

  Note that since vehicles providing rideshare trips initiating within New York City must follow all New York City Taxi and Limousine Commission regulations, they in generally will be vehicles that are "used principally" for transportation for hire.

  Another interesting consideration is which carrier will be liable for a loss transfer claim against a rideshare vehicle. Per Ins. L. 5105(a), the loss-transfer claim is against the insurer of any other covered person. Please see the discussion of rideshare vehicles in the “priority of payment" section below as to which insurer provides coverage for a rideshare vehicle.

  Also note that one challenge may be to find out whether a certain vehicle was engaged in rideshare activity at the time of the accident. To assist with this issue, Veh. Taf L. 1695(6) provides that in “a claims coverage investigation, a TNC and any insurer providing coverage under this article shall, within fifteen days after a claim has been filed, facilitate the exchange of relevant information with directly involved parties and any insurer of the TNC driver if applicable, including the precise times that a TNC driver logged on and off of the TNC’s digital network in the twelve hour period immediately preceding and in the twelve hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions and limits provided under any motor vehicle insurance maintained under this article."See this link for information on how to request some information from Uber (which seems to allow requests for information on whether a driver was using the app, but not whether a driver was engaged in a prearranged ride) and this link for information about seeking information from Lyft.

• What does "involved" mean? For instance, if a taxi cuts off vehicle A, who strikes vehicle B, was the taxi "involved" in the accident? There is a paucity of cases discussing this issue, and we would argue that any vehicle whose actions contributed to causing an accident probably is "involved" in the accident. Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 A.D.3d 633 (2nd Dept. 2008) found that an arbitrator’s finding that a garbage truck was "involved" in an accident lacked evidentiary support or a rational basis (and would thus be vacated, see discussion on standard of review, below) where the garbage truck was parked and the sanitation worker who was struck was in the street and the garbage truck was not contacted. From a procedural standpoint, see below sections below on stay of arbitration as to how disputes on this issue might be adjudicated.
• Out of state vehicles. Certain out of state vehicles can qualify as "covered persons." See discussion above on how an out of state vehicle can qualify as a covered person. Out of state vehicles that qualify as covered persons will not be subject to recovery of PIP except as provided in this section and will be entitled to recover PIP in accordance with this section. Although it is not perfectly clear, it seems that out-of-state insurers that meet the "covered person" definition will be required to participate in arbitration of loss-transfer claims under section 5105(b). See Matter of Purex Indus. v Nationwide Mut. Ins. Co. 110 A.D.2d 67, 493 N.Y.S.2d 176 (2nd Dept. 1985).

• Federal Vehicles. Although federal vehicles are included in the definition of "covered persons", see discussion above, federal vehicles are likely not subject to recovery of PIP even where a vehicle involved in the accident weighs over 6,500 pounds or is a vehicle for hire. Although there is no case directly on point, several factors suggest that PIP is not recoverable in this situation. Some of these factors are:
  
  • Section 5105 allows recovery "from the insurer of any other covered person." As noted in Liberty Mut. Ins. Co. v. United States, 490 F. Supp. 328, 334 (E.D.N.Y. 1980), which deals with the former NY PIP law, which had an identical definition of insurer, the federal government (even if considered a self-insured) does not meet the definition of insurer, which is an insurer providing the insurance required by New York law, whereas the federal government is exempt from New York insurance requirements by Veh. & Traf. L. 321. Significantly, the statute explicitly includes federal vehicles within the definition of covered person but does not do so for the definition of insurer.
  • As discussed below, Section 5105(b) limits the right of recovery of PIP to arbitration, whereas the Federal Tort Claims Act requires all claims be filed in Federal District Court. See 28 U.S.C. § 2401(b) and 2675(a). A number of federal cases indicate that where state law limits a right of recovery to a particular forum, the federal government will not be subject to such claims. See Liberty Mut. Ins. Co. v. United States, 490 F. Supp. 328, 334 fn9 (E.D.N.Y. 1980), Cont'l Ins. Co. v. United States, 335 F. Supp. 2d 532 (D.N.J. 2004), and US Fidelity & Guaranty Co. v. US, 728 F. Supp. 651, 656 (D. Utah 1989). As Liberty Mutual puts it, "With a circularity so typical of the law, the Tort Claims Act thus waives the immunity of the United States on the substantive side while simultaneously pre-empting the applicable State law on the procedural side."
  • Section 5105 creates a right of recovery "from the insurer of any other covered person." The Federal Tort Claims act, on the other hand, allows recovery from the federal government "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (2000). This provides for a right of recovery where an individual would be liable, but does not explicitly provide for a right of recovery where an insurer of an individual would be liable. See Cont'l Ins. Co. v. United States, 335 F. Supp. 2d 532, 542-543 (D.N.J. 2004), US Fidelity & Guaranty Co. v. US, 728 F. Supp. 651, 655 (D. Utah 1989).

• Worker's Compensation in Lieu of PIP. As noted in "What this Statute Says," worker's compensation carriers paying benefits that otherwise would have been paid by PIP have the same rights under this statute as the PIP carrier would have if it had paid PIP. However, note that as discussed above there is some question as to whether a worker's compensation carrier can recover through this section the extra $25,000 in PIP that would be afforded to an injured party eligible for OBEL benefits.

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N.Y. Insurance Law § 5105 (b): Disputes between insurers must be resolved through arbitration (Arbitration Forums).

(b) The sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent. Such procedures shall also be utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits.

What this statute says:

• Where one insurer or workers' compensation provider is trying to recover based on section 5105(a), the insurer must take the other insurer to binding arbitration. The Superintendent of Insurance can set the rules for the arbitration. Note that arbitrations performed pursuant to Ins. L. 5105 are handled by Arbitration Forums. Previously, 11 N.Y.C.R.R. 65.10 designated Arbitration Forums for these arbitrations. However, 11 N.Y.C.R.R. 65.10 appears to no longer be in force, and its partial replacement, 11 N.Y.C.R.R. 65-4.11 does not say anything about Abitration Forums. Circular Letter No. 10 (2005) issued May 16, 2005, which seems to still be "on the books" also states that, "...No-fault inter-company loss transfer arbitration program is administered by the Superintendent's designee, Arbitration Forums Inc. (AF)[,]" though that is more of a statement of facts than a formal designation of Arbitration Forums.
• Insurers who disagree as to which company should provide PIP benefits (priority of payment) must also arbitrate this question (but see note below regarding a PIP carrier who seeks recovery from compensation carrier who should be primary).

Notes on This Section:

• STATUTE OF LIMITATIONS for recovery of PIP from the insurer of a covered person - Three years from each payment.: The right to recover PIP from the insurer of a covered person (when a vehicle for hire or vehicle weighing over 6,500 pounds is involved in the accident) is a statutory right. It is governed by the three-year statute of limitations for liabilities created by statute. C.P.L.R. 214(2). c.f. Motor Veh. Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d, 214, 221 (1996). C.f. Matter of Liberty Mut. Ins. Co. and Hanover Ins. Co., 307 AD2d 40 (4th Dept. 2003). The right of recovery attaches with each PIP payment. So, if the date of loss was January 5, 2005, and the first PIP payment was on January 10, 2005, then arbitration must be initiated by January 10, 2008 in order to recover for all payments. If arbitration is filed thereafter, it will be timely for any payments made less than three years before the arbitration was innitiated.Motor Vehicle Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d 214, 221-222, 652 N.Y.S.2d 584 (1996) ("[S]ince MVAIC . . . did not make its demand for compulsory arbitration until October 20, 1992, the three-year Statute of Limitations had actually run as to that payment and as to all other payments made more than three years before the date of the demand."). Read the New York State Insurance Department analysis of this rule here and here (links open in a new window). NB: There is a different SOL for recovery of APIP and for the recovery of PIP from a non-covered person.
• You must use Arbitration Forums: Ins. L. 5105(b) specifies that disputes are to be resolved by "submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent." Previously, 11 N.Y.C.R.R. 65.10 designated Arbitration Forums for these arbitrations. However, 11 N.Y.C.R.R. 65.10 appears to no longer be in force, and its partial replacement, 11 N.Y.C.R.R. 65-4.11 does not say anything about Abitration Forums. Circular Letter No. 10 (2005) issued May 16, 2005, which seems to still be "on the books" also states that, "...No-fault inter-company loss transfer arbitration program is administered by the Superintendent's designee, Arbitration Forums Inc. (AF)[,]" though that is more of a statement of facts than a formal designation of Arbitration Forums.
• Higher standard of review for arbitration rulings: With regard to voluntary arbitration, "It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Matter of Falzone v. New York Cent. Mut. Fire Ins. Co., 15 N.Y.3d 530, 534 (2010). However, in describing review of an arbitration under N.Y. Ins. L. 5105, the New York Court of Appeals wrote in Motor Vehicle Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d 214, 223 (N.Y. 1996) that, "[w]here arbitration is compulsory . . , our decisional law imposes closer judicial scrutiny of the arbitrator's determination . . . . To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious." (Citations omitted).
• Disputes as to whether Section 5105 applies: If there is a dispute as to whether recovery is available under 5105, for instance a dispute as to whether a vehicle was "involved" in the accident, meets the weight requirement, or is a "vehicle for hire," or if the statute of limitations has run, and arbitration was filed, the respondent may go to court to stay the proceeding. See N.Y.C.P.L.R. 5103(b) c.f. Motor Veh. Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d, 214, 222-223 (1996)(statute of limitations), Liberty Mut. Ins. Co. v. Allstate Ins. Co., 234 A.D.2d 901 (4th Dept. 1996)(weight), State Farm Mut. Auto. Ins. Co. v. Aetna Cas. & Sur. Co., 132 A.D.2d 930,(4th Dept. 1987) affd. 71 N.Y.2d 1013 (1998)("for hire"). If this procedure is not followed, then decisions made by the arbitrator will likely only be subject to court review based on the standard of review for arbitrations pursuant to Section 5105 discussed here. Motor Vehicle Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d 214, 222-224 (N.Y. 1996). However, note that Matter of Philadelphia Ins. Co. 97 A.D.3d 1153 (2012) appeal dismissed 20 N.Y.3d 984 (2012) found that by failing to move for a stay the arbitration, Respondent waived any argument to vacate the result of the arbitration on the basis that the matter was not arbitrable. This result may have been due to the exact nature of the argument raised to vacate the arbitration, and, in any event, the court indicated that if it applied the MVAIC standard, the arbitration would still have been upheld.
• Self-insurers are insurers and therefore are subject to the arbitration requirement. Those seeking to recover PIP from self-insurers, and self-insurers seeking to recover from other insurers, must arbitrate. See City of Syracuse v. Utica Mut. Ins. Co., 90 A.D.2d 979, 456 N.Y.S.2d 571 (4th Dept. 1982), affd. 61 N.Y.2d 691, 472 N.Y.S.2d 600, 460 N.E.2d 1085(1984), Criterion Ins. Co. of Washington, D. C. v. Commercial Union Assur. Co., 89 Misc.2d 36, 41, 390 N.Y.S.2d 953, 958 (N.Y. Sup. Ct. 1976), and and note that N.Y.C.R.R. 65-4.11 which regulates arbitrations pursuant to Ins. L. 5105 treats self-insurers as insurers.
• Out of state vehicles. Certain out of state vehicles can qualify as "covered persons." See discussion above on how an out of state vehicle can qualify as a covered person. Although it is not perfectly clear, it seems that out-of-state insurers that meet the "covered person" definition will be required to participate in arbitration of loss-transfer claims as required in this section. See Matter of Purex Indus. v Nationwide Mut. Ins. Co. 110 A.D.2d 67, 493 N.Y.S.2d 176 (2nd Dept. 1985).

• Out of state accidents will never create 5105(b) recovery rights. In Hunter v. OOIDA Risk Retention Group, Inc., 909 N.Y.S.2d 88 (2nd Dept. 2010), a New York insured was injured in an accident in Connecticut. Both vehicles in the accident qualified as "covered persons" under New York law, and Connecticut law did not prohibit recovery. OOIDA sought to recover PIP under N.Y. Ins. L. 5105(a). The court found that 5105(a) did not apply, because 5105(a) only allows for recovery "to the extent that such other covered person would have been liable, but for the provisions of this article" - i.e. 5105(a) applies only when 5104(a) prohibits recovery from a covered person - and 5104(a) only prohibits PIP recovery from a covered person "arising out of negligence in the use or operation of a motor vehicle in this state." (i.e. New York. emphasis added). The Hunter decision did not reach the question of whether OOIDA had common-law subrogation rights to recover its PIP payments (since, again, 5104(a) did not prevent such a recovery). Note that to the extent that common-law PIP subrogation recovery would be permitted, it is likely that those recovery rights would be limited by New York's Anti-Subrogation Law. For further discussion of out of state accidents, see our discussions under section 5104(a) and 5104(b). NOTE: we do not state any opinion as to the laws of any other State. Many other states' laws prohibit recovery of PIP type losses for accidents in their state and choice of law may favor that other state's laws.
• Federal Vehicles. Although Federal vehicles are included in the definition of "covered persons", see discussion above, federal vehicles are likely not subject to recovery of PIP even where a vehicle involved in the accident weighs over 6,500 pounds or is a vehicle for hire. Although there is no case directly on point, several factors suggest that PIP is not recoverable in this situation. These factors include:
  
  • Section 5105 allows recovery from "from the insurer of any other covered person." As noted in Liberty Mut. Ins. Co. v. United States, 490 F. Supp. 328, 334 (E.D.N.Y. 1980), which deals with the former NY PIP law, which had an identical definition of insurer, the federal government (even if considered a self-insured) does not meet the definition of insurer, which is an insurer providing the insurance required by New York law, whereas the federal government is exempt from New York insurance requirements by Veh. & Traf. L. 321. Significantly, the statute explicitly includes federal vehicles within the definition of covered person but does not do so for the definition of insurer.
  • As discussed below Section 5105(b) limits the right of recovery of PIP to arbitration, whereas the Federal Tort Claims Act requires all claims be filed in Federal District Court. See 28 U.S.C. § 2401(b) and 2675(a). A number of federal cases indicate that where state law limits a right of recovery to a particular forum, the federal government will not be subject to such claims. See Liberty Mut. Ins. Co. v. United States, 490 F. Supp. 328, 334 fn9 (E.D.N.Y. 1980), Cont'l Ins. Co. v. United States, 335 F. Supp. 2d 532 (D.N.J. 2004), and US Fidelity & Guaranty Co. v. US, 728 F. Supp. 651, 656 (D. Utah 1989). As Liberty Mutual puts it, "With a circularity so typical of the law, the Tort Claims Act thus waives the immunity of the United States on the substantive side while simultaneously pre-empting the applicable State law on the procedural side."
  • Section 5105 creates a right of recovery "from the insurer of any other covered person." The Federal Tort Claims act, on the other hand, allows recovery from the federal government "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (2000). This does not explicitly provide for a right of recovery where the insurer of the individual would be liable. See Cont'l Ins. Co. v. United States, 335 F. Supp. 2d 532, 542-543 (D.N.J. 2004), US Fidelity & Guaranty Co. v. US, 728 F. Supp. 651, 655 (D. Utah 1989).

• Accidentally suing instead of arbitrating will still cover the Statute of Limitations: This was previously specified by 11 N.Y.C.R.R. 65.10(d)(5)(i) which apparently is no longer in force. However, the Arbitration Forums New York PIP Rules have a similar probision at (d)(2)(ii). Note that previously, 11 N.Y.C.R.R. 65.10 designated Arbitration Forums for these arbitrations. However, 11 N.Y.C.R.R. 65.10 appears to no longer be in force, and its partial replacement, 11 N.Y.C.R.R. 65-4.11 does not say anything about Abitration Forums. Circular Letter No. 10 (2005) issued May 16, 2005, which seems to still be "on the books" also states that, "...No-fault inter-company loss transfer arbitration program is administered by the Superintendent's designee, Arbitration Forums Inc. (AF)[,]" though that is more of a statement of facts than a formal designation of Arbitration Forums.
• Statute of Limitations will be extended if there is a coverage dispute: This was previously specified by 11 N.Y.C.R.R. 65.10(d)(5)(i) which apparently is no longer in force. However, the Arbitration Forums New York PIP Rules have a similar probision at (d)(2)(ii). Note that previously, 11 N.Y.C.R.R. 65.10 designated Arbitration Forums for these arbitrations. However, 11 N.Y.C.R.R. 65.10 appears to no longer be in force, and its partial replacement, 11 N.Y.C.R.R. 65-4.11 does not say anything about Abitration Forums. Circular Letter No. 10 (2005) issued May 16, 2005, which seems to still be "on the books" also states that, "...No-fault inter-company loss transfer arbitration program is administered by the Superintendent's designee, Arbitration Forums Inc. (AF)[,]" though that is more of a statement of facts than a formal designation of Arbitration Forums.
• No Tort Claims Notice required for a PIP arbitration. Statute of limitations for PIP loss transfer from government entity is 3 years: The right to recover PIP through arbitration is a statutory right, and not an old-fashioned tort. Therefore, there is no requirement of giving a tort claims notice before seeking recovery of PIP from a city or the state (i.e. the government does not need to be warned within 90 days of the accident that you plan to seek recovery). City of Syracuse v. Utica Mut. Ins. Co., 83 A.D.2d 116, 443 N.Y.S.2d 901 (4th Dept. 1981), affd. 61 N.Y.2d 691, 460 N.E.2d 1085, 472 N.Y.S.2d 600 (1984). Similarly, the regular 3 year statute of limitations described above applies, not the 1 year 90 days generally required for suing a government entity. This is because loss transfer is a case against an insurance company, not against the city (if the city is self-insured, the loss transfer case is still treated as a case against an insurance company. City of Syracuse v. Utica Mut. Ins. Co., (4 Dept. 1982) 90 A.D.2d 979, 456 N.Y.S.2d 571, affd. 61 N.Y.2d 691, 472 N.Y.S.2d 600, 460 N.E.2d 1085). NB: a torts claim notice is presumably required where the government entity is not a "covered person" and recovery is sought pursuant to Ins. L. 5104(b) (i.e. the liability doesn't arise from negligence of an operator of a motor vehicle or a pedestrian, e.g. a pothole situation). Presumably the SOL for this claim would be in accordance with the tort claims rules (discussed below).
• Priority of payment (disputes as to who should provide PIP benefits): Occasionally, several insurers will debate who is responsible to provide PIP coverage (i.e. "first party coverage") to a person in an accident. These cases are often referred to as "priority of payment" disputes. The disputes often arise after one insurer has provided PIP benefits, but claims that another insurer is truly responsible for the PIP coverage and therefore should reimburse the first insurer. Section 5105(b) specifies that these disputes must be resolved through arbitration. N.Y. Ins. L. 5106 and 11 N.Y.C.R.R. 65-3.12 indicate that where multiple policies apply, the policy paying PIP can recover a proportionate share, including expenses of processing the claim, from other applicable policies. These claims should also be taken to Arbitration Forums. Some important notes:
  • For accidents in New York, PIP follows the vehicle in the accident. So, a person who is injured in a New York accident will seek PIP from the vehicle the person is in at the time of the accident, and not from his own insurance. Similarly, a pedestrian who is struck looks for PIP first from the vehicle that hit him or her. However, if a person is occupying a bus and neither owns/operates the bus nor is employed by the owner/operator, PIP is paid by the policy or policies under which the person is a named insured or household member. N.Y. Ins. L. 5103(a)(1).
  • For accidents outside of New York or where an injured party is occupying/struck by an uninsured vehicle in New York, N.Y. Ins. L. 5103(a)(2) requires that a PIP policy provide coverage for "the named insured and members of his household, other than occupants of a motorcycle ..." which means that in these situations if a person is a named insured or a household member on more than one policy, the person may be entitled to PIP from more than one carrier. In addition, Ins. L. 5103(a)(3) requires that a PIP policy provides PIP coverage to a New York resident injured as a guest passenger in in insured vehicle in an accident outside of New York if that person does not own a vehicle that should have NY PIP and is not elligible for PIP from any other PIP policy (i.e. is not a household member on another NY policy). People who are not residents of New York are not entitled to New York PIP benefits as guest passengers in a New York vehicle in an out-of-state accident.
  • The Statute of Limitations for priority of payment claims is the same as other 5105 claims, 3 years from each individual payment. See MVAIC v. v. Aetna, 89 N.Y.2d 214, 222 (1996)("[T]he three-year Statute of Limitations had actually run . . . as to all [ ] payments made more than three years before the date of the demand.") C.f. Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40 (4th Dept. 2003). See further discusion above regarding the statute of limintations for PIP loss-transfer arbitration.
  • Worker's compensation (paying benefits "in lieu of first party benefits") is primary over PIP where both coverages would otherwise apply. Insurance Law 5102(b)(2). HOWEVER, Insurance Law 5105(b) refers to "disputes arising between insurers" and the definition of "insurer" (if it applies to the plural "insurers") would not include worker's compensation carriers. Therefore, it is not clear whether a claim by a PIP carrier to recover its PIP payments from a worker's compensation carrier would be subject to the arbitration requirement of 5105(b). Also, the applicable statute of limitations is unclear.
    • Note the following ironic scenario. A is a passenger in B's car or is struck by B's car as a pedestrian and B is at fault. In general, since PIP follows the vehicle involved in the accident, B's insurer would provide A with PIP. However, if A were in the course of employment and entitled to workers' compensation, then A's compensation carrier would be primary and B's carrier would be off the hook. Now, let's say that a 6500 pound vehicle or vehicle for hire was involved in the accident. A's workers' compensation carrier remains primary for PIP, but now has the right to seek loss-transfer recovery from B's insurer. The fact that A's worker's compensation insurer was primary over B's auto insurer for PIP does not preclude A's insurer from seeking this loss-transfer recovery from B's auto insurer. See New York News, Inc. v. State Ins. Fund, 157 A.D.2d 651 (2nd Dept., 1990) and A.I. Transp. v. N. Y. State Ins. Fund, 301 A.D.2d 380 (1st Dept., 2003). Note, however, that if A were at fault for A's own injury (for example if A were driving), then A's compensation provider would be primary for A's injuries and could probably not seek loss-transfer recovery from A's auto insurer, because loss transfer under Ins. L. 5105(a) only permits recovery from the insurer of an "other covered person" (emphasis added).
  • If an insurer is presented with a PIP claim, but believes that another insurer should be responsible under the rules of priority of payment, this does not raise a coverage question (which might be resolved in court). Rahter, the insurer should first pay the claim and then seek reimburesement from the other insurer through arbitration. M.N. Dental Diagnostics, P.C. v. GEICO, 81 A.D.3d. 541 (1st Dept. 2011).
  • Rideshare vehicles: Rideshare vehicles (e.g. Uber, Lyft). Rideshare vehicles present a unique situation as far as analyzing which PIP coverage should cover injuries. Although the standard “priority of payment" rules discussed above apply (i.e. for accidents in New York state, PIP is paid by the vehicle involved in the accident while for accidents outside of New York state PIP is shared by all insurers of the injured person) an additional question is whether PIP for the rideshare vehicle comes from the regular vehicle policy or the rideshare company’s policy.

    Other than in New York City, when a vehicle driver is logged in to the TNC network, Veh. Traf. L. 1693 provides special coverage requirements (PIP and liability), which technically can be met by either the driver, TNC company, or a combination of the two. However, Veh. Traf. L. 1695(1) authorizes the TNC driver’s private passenger automobile policy to exclude all coverages whenever the vehicle is connected to a TNC network and Veh. Traf. L. 1693(5) requires the TNC’s policy to provide any required coverage that the TNC driver’s policy does not provide. The private policy may choose to provide primary or excess coverage even when its insured vehicle is connected to the TNC.

    Therefore, in order to determine who should provide PIP or other insurance coverage (or if one insurer paid PIP in order to determine if another applicable insurer should share those costs), both the TNC policy as well as the driver’s policy may need to be reviewed. However, the most likely scenario is that the TNC’s policy will be responsible for the PIP (see e.g. Uber’s coverages described here). If the driver is not logged in to the rideshare network, then the vehicle’s regular policy will apply.

    In New York City, Veh. Traf. L. 1693 does not apply, and instead New York City’s Taxi and Limousine Commission insurance requirements apply. These rules require that any vehicle used for rideshare purposes maintain a commercial policy that includes PIP coverage.

    An additional layer of complication as to who provides PIP benefits is the availability of worker's compensation coverage for the driver of the TNC vehicle. Note that under Ins. L. 5102(b)(2) worker's compensation coverage is primary over PIP. As to the driver of a TNC (including TNCs opearated in New York City), worker's compensation coverage is provided by the Black Car Fund. The coverage applies while the TNC drivers is engaged in a "prearranged trip" (i.e. from when a TNC trip request is accepted until the last passenger is discharged) and while a TNC driver "is logged onto a TNC digital network and ... engaged in an activity reasonably related to driving as a TNC driver taking into consideration the time, place and manner of such activity." See Exec. L. 160-cc(1).

    One challenge may be to find out whether a certain vehicle was engaged in rideshare activity at the time of the accident. To assist with this issue, Veh. Traf. L. 1695(6) provides that in “a claims coverage investigation, a TNC and any insurer providing coverage under this article shall, within fifteen days after a claim has been filed, facilitate the exchange of relevant information with directly involved parties and any insurer of the TNC driver if applicable, including the precise times that a TNC driver logged on and off of the TNC’s digital network in the twelve hour period immediately preceding and in the twelve hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions and limits provided under any motor vehicle insurance maintained under this article." See this link for information on how to request some information from Uber (which seems to allow requests for information on whether a driver was using the app, but not whether a driver was engaged in a prearranged ride) and this link for information about seeking information from Lyft.

    For other analysis of the interplay between rideshare vehicles and the New York PIP scheme, see our discussion of rideshare vehicles in the loss-transfer section above.

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N.Y. Insurance Law § 5105 (c): Amounts recovered for PIP do not diminish adverse insurer's liability policy limits for other claims.

(c) The liability of an insurer imposed by this section shall not affect or diminish its obligations under any policy of bodily injury liability insurance.

What this statute says:

• If a insurer is liable to pay another insurer in PIP loss transfer (i.e. The insurer of a culpable automobile in a case where one of the vehicles involved is over 6,500 pounds .or a vehicle for hire), that payment does not diminish the policy limits for other purposes. This means that an insurer seeking loss transfer from another insurer, does not have to worry that this will negatively effect, for example, the amount available for its insured to recover in a bodily injury case.

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Other selected New York Subrogation laws.

• Property Damage: 3 years. N.Y.C.P.L.R. 214.
• Personal Injury: 3 years. N.Y.C.P.L.R. 214.
• Contract: 6 years. N.Y.C.P.L.R. 213.
• Warranty: 4 years per UCC codified at N.Y. U.C.C. 2-725(1). This SOL runs from tender of delivery unless the warranty "explicitly extends to future performance."
• Malpractice: 3 years for other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort N.Y.C.P.L.R. 214(6). For medical, dental or podiatric malpractice, 2 1/2 years from the "of the act, omission or failure complained of," except for foreign objects left in a patient, 1 year from discovery/discovery of facts which would reasonably lead to discovery. N.Y.C.P.L.R. 214-a.
• PIP recovery: See discussions above regarding SOLs for recovery of PIP from a non-covered person, recovery of PIP from the insurer of a covered person (where a vehicle above 6,500 pounds or a vehicle for hire is involved in the accident) and recovery of APIP.

How Does COVID Affect New York Statutes of Limitations? Please note that the series of Executive Orders relevant to this issue can be found on the Cornell Law School website here. On March 20, 2020, Governor Cuomo issued Executive Order 202.8 (9 N.Y.C.R.R. 8.202.8) stating that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, ... is hereby tolled from the date of this executive order until April 19, 2020." The Governor issued further orders extending the April 19, 2020 date until November 3, 2020. There has been some debate on whether these orders actually tolled statutes of limitations and the other time limits mentioned (meaning that these days do not count toward the running of a statute of limitationss at all) or merely suspended these time limits (which would mean that all statutes of limitations that would have run during this period all ran out on November 4, 2020). There is also some question as to whether the Governor had the authority to toll these limitations. We are aware of two cases discussing this issue, both of which found that the orders constituted a toll of these time limits. In Brash v. Richards, 195 A.D.3d 582 (2nd Dept., June 2, 2021), the Appellate Division, 2nd Department, held that the time to file an appeal had been tolled by the Governor's order and that the Governor had the authority to do so. In Foy v. State of New York, 71 Misc. 3d 605 (N.Y. Ct. Claims, February 16, 2021), the New York Court of Claims found that the statute of limitations for a wrongful termination claim against the state had been tolled by Governor Cuomo's orders and that Governor Cuomo had the authority to do so.

Thus, it appears that in calculating any time limits including statutes of limitation, the period between March 20, 2020 (according to Foy, March 7, 2020, although we are not certain whether there is any provision in Governor Cuomo's orders to begin the tolling on this date) and November 3, 2020 simply do not count. Therefore, causes of action that arose prior to March 20 (possibly March 7) and did not expire prior to that date have an extra 229 (possibly 242) days added to their statute of limitations. Further, statutes of limitations for causes of action that arose on or after March 20 (possibly March 7) only began to run on November 4, 2020, so that, for instance, the three-year statute of limitations for a negligent act on April 1, 2020 will have its statute of limitations run on November 4, 2023.

We highly recommend that litigants not rely on this statute tolling except when necessary. Filing claims within the "regular" statute of limitations will avoid questions as well as the possibility of another court interpreting matters differently, or future executive or legislative action changing the situation. However, if one discovers a claim that might appear to be beyond its statute of limitations, it will be important to consider whether the COVID orders add more time to the statute of limitations.

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• Release signed after claim was paid: If I paid its insured (C) before C signed the release, then the right of subrogation survives. This is because the subrogation right attaches at the point that I paid the claim. Once the subrogation right attached, it is I's right, and not C's right, so C could not sign that right away. A good case discussing this rule is Allstate Ins. Co. v. Mazzola, 175 F. 3d 255, 260 (2nd Cir. 1999).
• Adverse party/insurance company knew/should have known subrogation rights existed: An otherwise valid release will not be effective if the released party (A or A's insurance company) knew or should have known that someone had subrogation rights. Hartford Ins. Group v. Posen, 511 N.Y.S. 2d. 1, 2 (N. Y. City Civ. Ct., 1986). Therefore, it is good policy for an insurance company to send a notice of subrogation rights to the adverse party and adverse insurance company as soon as it becomes aware of a claim or potential claim. If such notices were not sent, one can still argue that the adverse "should have known" of the potential subrogation rights.
• Releases will never affect PIP loss transfer rights. This is because the right of loss transfer (i.e. one insurance company arbitrating against another insurance company) is considered a separate right created by statute (N.Y. Insurance Law 5105). It is not a right that is "subrogated" from the insured, and therefore the insured has no power to destroy it. See State Farm Mut. Auto. Ins. Co. v. City of Yonkers, 21 A.D.3d 1110, 801 N.Y.S.2d 624, (2nd Dept. 2005) and Doherty v. Barco Auto Leasing Co., 144 A.D.2d 424 (2nd Dept. 1988).The same is not true for the subrogation rights on Additional PIP, which is seen as an actual subrogation right rather than a statutory right. An insured signing a release may affect APIP recovery rights. See Nationwide Ins. Co. v. Mocchia, 663 N.Y.S.2d 640 (2ND Dept 1997). This different status of APIP probably is not effected by the fact that the new New York anti-subrogation law carves out an exception for APIP, since this exception merely affirms the APIP subrogation right, rather than creating a direct statutory right to recover APIP.

• The STATUTE OF LIMITATIONS for recovery of Additional PIP: 3 years from the date of the accident even if the first Additional PIP payment was not made within 3 years of the accident. Allstate Ins. Co. v. Stein, 1 N.Y.3d 416, 775 N.Y.S.2d 219 (2004). NB: There is a different SOL for recovery of PIP from a non-covered person and for the recovery of PIP from the insurer of a covered person.
• There are two methods for recovering APIP. The insurer may assert a lien against its insured's personal injury claim, or it may make a direct suit against the party at fault. Aetna Cas. and Sur. Co. v. Jackowe, 96 A.D.2d 37, 468 N.Y.S.2d 153 (2nd Dept. 1983), Fowler v. Pebble Hill Bldg. Corp., 120 A.D.2d 486, 487-488, 501 N.Y.S.2d 690, 692 (2nd Dept. 1986) . Because the insured's case might fizzle if their noneconomic claim is barred due to serious injury threshold, a backup suit may be in order if one goes the lien route. Additionally, one is wise to get an explicit agreement from the insured's attorney to protect this lien, or otherwise one should probably assert one's own claim either by intervention (where allowed) or by a direct suit against the tortfeasor.
• Insured's attorney is not entitled to contingency fee on an APIP lien. Allstate Ins. Co. v. Denbleyker, 280 A.D.2d 204, 206 (4th Dep't 2001) stated that, "although the services of defendant's attorneys led to the availability of the fund against which Allstate placed its lien, the contingency fee agreement was between the defendant and her attorneys and cannot be enforced against one not a party to the agreement, in this case the lienor." Citing Breier v. Government Emp. Ins. Co., 79 A.D.2d 967 (1st. Dept. 1981)(which addressed a PIP lien). The Breier court noted that "[s]ome of us feel that there might be a claim in quantum meruit, but we do not reach that aspect." Thus, if an insurance company pays $50,000 in APIP, and the insured recovers $100,000 from a defendant, the Insurance company gets $50,000 (perhaps less some quantum meruit compensation for the attorney), and the attorney and his/her client share the remaining $50,000 as per their retainer.
• APIP may be recovered even if serious injury threshold is not reached. This is because 5104 only excludes basic economic loss, and only requires serious injury for recovery of non-economic losses. See Colvin v. Slawoniewski, 15 A.D.3d 900, 789 N.Y.S.2d 368 (4th Dept. 2005), Tortorello v. Landi, 136 A.D.2d 545, 545-546, 523 N.Y.S.2d 165 (2nd Dept., 1988).

Note that the tortfeasors must have acted negligently at the same time, for instance two negligent drivers causing an accident in which another person is injured (as opposed to one person who is injured and then later on is the victim of medical malpractice).

• A limited exception to joint and several liability in New York. N.Y.C.P.L.R. § 1601 introduces A limited exception to the joint and several liability rule:

  1. Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tortfeasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state); and further provided that the culpable conduct of any person shall not be considered in determining any equitable share herein to the extent that action against such person is barred because the claimant has not sustained a "grave injury" as defined in section eleven of the workers' compensation law.

  2. Nothing in this section shall be construed to affect or impair any right of a tortfeasor under section 15-108 of the general obligations law.

  Basically, what this says is that if a tortfeasor cannot be held liable for more than his or her fair share of the non-economic damages (i.e. pain and suffering) that s/he contributed to causing unless s/he is more than 50% at fault for the loss.

  Example:
  

  • A and B negligently injure C and C sustains $10,000 in property damages and $100,000 dollars in bodily injury. C sues A only, who is found to be 50% at fault. A is liable for $10,000 in property damage, since this limitation to joint and several liability does not apply to property damage), but only liable for $50,000 of the bodily injury.

How does the Plaintiff's own negligence figure into this situation? Say, for instance Plaintiff is found 5% at fault, while A is found 50% at fault and B is found 45% at fault? Do we include Plaintiff's fault int he math, and therefore find that A is not more than 50% liable and therefore not jointly and severally liable for B's 45%, or do we just look at the two tortfeasors, and conclude that A is more than 50% liable and thus subject to joint and several liability. The statute is not at all clear on this issue. However, the highly influentcial treatise New York Practice by professor Siegel (§ 168B) argues that the Plaintiff's percentage should not be included and thereofre A is jointly and severally liable. Robinson v. June, 167 Misc.2d 483, 637 N.Y.S.2d 1018 (Sup. Ct. Tompkins County, 1996) agreed with this conclusion.

THERE ARE SOME VERY IMPORTANT LIMITATIONS TO THIS EXCEPTION TO JOINT AND SEVERAL LIABILITY. When these exceptions apply, the joint tortfeasor may be found liable for 100% of the damages even if they are not more than 50% at fault. Some of these exceptions come from N.Y.C.P.L.R. § 1601 itself, while there are other exceptions that appear in N.Y.C.P.L.R. § 1602. Here are some of the key exceptions:


• Claims for economic damages (e.g. property damage). This point is explicit in CPLR 1601.
• Wrongful death claims. Ryan v. Beavers, 170 A.D.2d 1045, 566 N.Y.S.2d 112 (4th Dep't 1991) ("The court correctly found that the CPLR article 16 affirmative defense of defendants Martinez and Speilberg does not apply to plaintiff's cause of action for wrongful death, which involves economic loss.").
• The liability of a tortfeasor who is not a party is not used in the calculation if Plaintiff proves s/he could not get jurisdiction over that tortfeasor. CPLR 1601(1).
• Intentional conduct or conduct with reckless disregard for the safety of others. CPLR 1602(5), (7), & (11). Note that in determining whether an unintentional tortfeasor's responsibility is over 50%, any percentages assigned to intentional tortfeasors are counted. Chianese v Meier, 98 NY2d 270, 278 (2002).
• "Any person held liable by reason of his use, operation, or ownership of a motor vehicle or motorcycle, as those terms are defined respectively in sections three hundred eleven and one hundred twenty-five of the vehicle and traffic law." CPRL 1602 (6). Note that the definitions in the VTL do not include police and fire vehicles, farm vehicles, and certain construction vehicles (so that these particularly vehicles can still take advantage of the limitation on joint and several liability).
• BE CAREFUL SETTLING WITH JOINT TORTFEASORS!: Under New York General Obligation law 15-108(c) a joint tortfeasor who settles may not recover contribution from another tortfeasor.
  Example:
  
  

  • A settles with C for $5,000. A then sues B saying that B was 50% responsible for the accident. A cannot recover from B.

General Obligations Law 15-108(b) provides that a settling tortfeasor is also not subject to a claim of contribution from another tortfeasor. General Obligations Law 15-108(a) provides that once a tortfeasor settles, the remaining tortfeasor is only liable for the lesser of his share of the fault or the remaining unpaid damage.

Example:


• A settles with C for $2,000. C then sues B for the remainign $3,000. Even if B is found 80% liable, A can only recover $3,000. If B is found 20% liable (meaning that A was really 80% liable and should have paid $4,000), C recovers only $1,000 from B, and in the end is "out" $1,000.

Note, finally, that this rule covers only contribution, not indemnification.

Example:


• General Contract (GC) hires Subcontractor (SC) to do some work, and the contract says SC will indemnify GC for any liability arising from SC's work. SC's work causes injury to P. GC settles with P. GC can recover from SC under indemnification. Mas v. Two Bridges Associates, 75 N.Y.2d 680 (1990).

The same is true, for example, with a party that settles because it is vicariously liable for the act of another.

Example:


• Employee E employs worker W, who causes damage, Employee E is vicariously liable and may pay a claim to the injured party. However, a party that is vicariously liable is entitled to indemnification from the party principally at fault, and thus, after settling, E can seek indemnification from W. Rogers v. Dorchester Associates, 32 N.Y.2d 553, 566 (1973).

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

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New York's Anti-subrogation law: In 2009, New York passed an anti-subrogation law, General Obligations Law § 5-335. This law has limited application, and its bark is bigger than its bite. PLEASE NOTE: AMENDMENTS TO THE ANTI-SUBROGATION LAW WERE SIGNED INTO LAW BY GOVERNOR CUOMO ON NOVEMBER 13, 2013. THE DISCUSSION BELOW INCORPORATES THESE AMENDMENTS . . . Click here to read the key anti-subrogation parts of this statute. As with any new law, it will take some time and development of case law to be certain of its effect and application. However, here are some important observations about this law:

• The statute only applies to bodily injury claims. It does not affect subrogation of property damage claims. Therefore, the anti-subrogation law is most likely to affect health insurance carriers and occupational accident policies (worker's compensation carriers and auto carriers will generally not be affected, as discussed below).
• This statute only applies if the insured has entered into a settlement with the tortfeasor. If the insured's case goes to verdict, contractual and equitable rights of recovery may still exist. Rink v State of New York, 27 Misc 3d 1159, 1164 (Ct. of Claims, 2010), Affirmed 87 A.D.3d 1372 (4th Dept., 2011), Rizzo v. Moseley, 913 N.Y.S. 2d. 905 (Sup. Ct. Westchester 2010)("General Obligations Law § 5-335 only applies where there is a settlement however, and thus does not implicate a health insurer's subrogation rights where the action goes to verdict"). Note, however, that pursuant to N.Y.C.P.L.R. 4545, except where permitted by statute, costs for which the bodily injury claimant was insured may not be included in the verdict in favor of the injured party. Therefore, the insurer would have to file suit separately to preserve this claim (which could be extinguished if the injured party settles). Rink and Rizzo support the ability of the insurer to intervene in the bodily injury case, although such intervention is generally disfavored in the first, second, and third appellate departments in New York (as mentioned in Rink and Rizzo). Similarly, if the insured does not seek reimbursement from the tortfeasor (or at least has yet to settle his or her claim), subrogation rights still exist.
• Where this law applies, it eliminates any insurer's subrogation/lien rights that are not explicitly allowed by the anti-subrogation statute (the exceptions are in Gen. Obl. L. 5-335(b)). Previously, the statute restricted subrogation "[e]xcept where there is a statutory right of reimbursement," however, the 2013 amendments eliminated this language. The following are recovery rights that the ant-subrogation law carves out. Note that short-term disability payments pursuant to Workers Comp. L. 227 seem not to have been carved-out, and hence are most likely no longer subrogable in New York:
  • PIP and OBEL (see note on OBEL, above, explaining that in all respects, OBEL is treated the same as PIP). This is based on the exception for recovery rights "specifically authorized pursuant to article fifty-one of the insurance law."
  • APIP. This is based on the exception for "a subrogation claim for recovery of additional first-party benefits." Note that it would seem that Medpay is not recoverable as there is no carve-out for Medpay.
  • Worker's Compensation. This is based on the exception for recovery of benefits paid, "pursuant to a policy of insurance or an insurance contract providing workers' compensation benefits."
  • Medicare and Medicaid

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• Tort claims Notice and Statutes of Limitation. Note: as discussed above, the tort claims notice and SOL requirements regarding government entities does not apply to recovery of PIP from the insurer of a "covered person" through arbitration pursuant to Ins. L. 5105, but presumably would apply to recovery pursuant to Ins. L. 5104(b) against a government entity that is not a "covered person" (i.e. the liability doesn't arise from negligence of an operator of a motor vehicle or a pedestrian, e.g. a pothole situation). Also note that the notice requirements and SOL can be very case specific and there are lots of special rules. It is probably best to file your notice of claim within 90 days and to sue within 1 year 90 days in order to be on the safe side. This is particulralry true as there is a good deal of confusion as to whether a legal entity falls under the General Municipalities Law or the Court Of Claims Act (which covers claims against the state, but includes such entities as the New York State Thruway Authority and the City University of New York).
  • Tort Claims Notices:
    • Against municipalities, etc.:Generally, if you are going to make a tort claim against a government entity, you will need to make a notice of claim within 90 days of the accident. See Gen. Mun. L. 50-e which covers most local government entities, and Gen. Mun. L. 50-i which requires 30 days to pass from the notice of claim before suit is filed. NB: Recent amendments to 50-e permit serving a notice of claim through the New York Secretary of State (with a $250 fee per Gen. Mun. L. 53), but in that case Gen. Mun. L. 50-i requires the notice to be filed 40 days prior to filing suit. Note that per Gen. Mun. L. 50-i, when filing suit, the Complaint must recite that the notice was filed and that the required time has passed since it was filed.
    • It can be difficult to determine who to put on notice and whether they have a notice form. It is often wise to call the municipal entity about how to make a claim. The New York City Comptroller's web page has information about filing tort claims against the city including their form as well as a method to file online and, very importantly, a list of New York City entities who get tort claims notices directly rather than through the comptroller.
    • Requirements for making a notice of claim are spelled out in Gen. Mun. L. 50-e. The notice can be served personally or by registered or certified mail (and, for New York City, electronically). A notice submitted by registered/certified mail is effective on the date of mailing if it is mailed within New York state.
    • Against New York State: For claims against NY State one may file suit within 90 days or serve a notice of intention to file a claim within 90 days. See Ct. Cl. Act 10(3)
    • The New York Court of Claims has exclusive jurisdiction over claims against New York State.
    • Certain other entities are subject to the Court of Claims jurisdiction. Some of these entities includ CUNY senior colleges (not junior colleges), Educ. L. 6224, the New York State Power Authority (for claims for the appropriation of real property only), the New York State Thruway Authority, Pub. A. 361-b, the Olympic Regional Development Authority, Pub. A. 2662, and the Roswell Park Cancer Institute Corporation Pub. A. 3657. Interestingly, the notice of claim requirements in Gen. Mun. L. 50-d apply to the Roswell Park Cancer Institute Corporation. Tyson v. Roswell Park Cancer Inst. Corp., 4 Misc. 3d 556, 559-60, 780 N.Y.S.2d 704, 706-07 (Ct. Cl. 2003).
    • Ct. Cl. Act 10-11 include the technical requirements for the content of and method of filing and serving a Claim or Notice of Intention to File a Clam. The Claim/Notice must be served personally or by certified mail and filing by certified mail is only effective upon receipt. The Claim/Notice must be served on the Attorney General and, if the claim is against the New York State Thruway Authority, CUNY, or New York State Power Authority, a copy must also be served on that entity.
    • There are provisions to relax these filing rules at the discretion of the court, See Gen. Mun. L. 50-e(5) and Ct. Cl. Act 10(6). Note that under Gen. Mun. L. 50-e(5) the latest time to file for this relief is when the SOL would expire against the government entity you are suing, whereas under Ct Cl. Act 10(6) the latest time to file for this relief is whatever the Statute of Limitations would be if you were suing a private individual for the same claim.
      • Generally, whether leave to file late appeal should be granted is judged by particular standards largely involving the excuse for the failure to file in time and the prejudice to the government entity by allowing the claim to go forward. However, Matter of St. Paul Guardian Ins. Corp. v. Pocatello Fire Dist., 90 A.D.3d 761, 762 (2nd Dept., 2011) indicates that as long as the government entity has actual notice of the the facts constituting the claim, and has not been prejudiced by the late notice, then no excuse for the failure to file a timely notice is required.
    • Note that an insurer filing suit in subrogation may rely on the tort claims notice filed by its insured. Hartford Ins. Co. v City of New York, 29 AD3d 519 (2nd Dept. 2006).
  • Statutes of Limitations:
    • Against municipalities, etc.:The SOL is one year and 90 days (2 years for a wrongful death claim), per Gen. Mun. L. 50-i. NOTE: Previously, certain entities used to have a 1 year SOL. N.Y.C.P.L.R. 217-a specifies that the SOL for suit against any state agency, political subdivision of the state, agencies of political subdivisions, etc. is the greater of 1 year 90 days or whatever is statutorily specified for the specific entity.
    • Against New York State:The SOL for a tort claim against New York state is 2 years (1 year for an intentional tort, though for claims against state agencies is expanded to 1 year 90 days by N.Y.C.P.L.R. 217-a). Ct. Cl. Act 10(3-a) and (3-b). Note that this time limit can be expanded per Ct. Cl. Act 10(6) up to the time one would have had if one were suing a private entity, and subject to the court's discretion.

• Requirement of written notice of a defect in the road. Under Gen. Mun. L. 50-e(4), a municipality may limit its liability for a defect in a road to those situations where the municipality had prior written notice of that defect. Defects that can be treated this way include "dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon." Some important notes:
  • In order to exempt itself from liability, the municipality must have a law on its books requiring that it receive written notice of defects before it can be held liable for them.
  • Municipalities may not exempt themselves from liability for any other issue other than a defect in the street/sidewalk itself. Adams v. Town of Lisbon, 170 A.D. 2d 901 (3rd. Dept. 1991). However, whether a defect is a defect in the street/sidewalk can be a fine line. The lack of a street sign or other traffic control device is not a defect in the street. Id, Forsythe-Kane v. Town of Yorktown, 249 A.D.2d 505 (2 Dept. 1998). In Fitzpatrick v. Barone, 215 A.D. 2d 351 (2nd Dept. 1995), the court found that foliage covering a stop sign was not a defect in the street. In Forsythe-Kane, supra, the court said that foliage obstructing the line of sight on a street is a defect in the street and therefore may require written notice.

• Immunity for certain vehicles absent "reckless disregard." There are a number of statutes that exempt public entities/workers from liability for simple negligence. For instance, Veh. & Traf. L. 1103 (b) states that the rules of the road generally do not apply to anyone working on highways (which means any public street, not just highways as the term is used in general and includes work such as snow removal) and that such workers are exempt from liability unless the person acts with "reckless disregard for the safety of others." See further Riley v County of Broome, 95 N.Y. 2d 455 (2000)(holding that hazard vehicles have the same immunity as others "engaged in work on a highway."). Similarly, Veh. & Traf. L. 1104 excuses emergency vehicles from certain rules of the road, but states that they can be held liable if they act with "reckless disregard." Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994) provides a standard for "reckless disregard" in the context of emergency vehicles, and Riley v County of Broome, 95 N.Y. 2d 455, 466-467 (2000) states that the same standard applies to the exemption in section 1103 as well. This is how Saarinen explains the standard:
  
  Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of "due care under the circumstances" — the showing typically associated with ordinary negligence claims. It requires evidence that "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500).
  It is important to note that the reckless disregard standard appplies only in certain situations. An excellent discussion of the reckless disregard standard and highway and emergency vehicles can be found here. Some key restrictions are as follows:
  
  • The reckless standard only applies to road work vehicles when they are "actually engaged in work on a highway," Veh. & Traf. L. 1103(b). Riley v. Cty. of Broome, 719 N.Y.S.2d 623, 627 (2000) states that this rule applies to "vehicles engaged in highway construction, maintenance or repair" and applies the standard to a vehicle plowing snow, see further Howell v. State of N.Y., 93 N.Y.S.3d 736 (App. Div. 2019) and sweeping a street. On the other hand, vehicles engaged in general municipal work, such as garbage collection do not benefit from the reckless disregard standard. Guzman v. Bowen, 38 A.D.3d 837, 837-838 (2nd Dept. 2007).
  • The reckless disregard standard applies to emergency vehicles only when they are "authorized emergency vehicle[s] . . . involved in an emergency operation" and only when their negligent act relates to particular rules from which Veh. & Traf. L. 1104(b) excempts such vehicles ((a) stopping/standing/parking in an intersection; (b) proceeding past red lights/stop signs but only after slowing down as may be necessary for safe operation; (c) exceeding the speed limit; and (d) disregarding reguations on directions of movement or turning in specific directions). Thus, in Kabir v County of Monroe, 16 N.Y.3 (2011), a police officer looking down at his terminal for several seconds and thus rear-ending a car in front of him was not engaged in one of the activities specifically permitted in Veh. & Traf. L. 1104(b) and the regular negligence standard, rather than the reckless disregard standard applied. Also, it seems that the courts will construe whether an emergency vehicle was engaged in the listed activities quite narrowly. In Lograsso v City of Tonawanda, 87 A.D.3d 1390 (4th Dept. 2011) the court wrote that, Defendant "did not in fact proceed past a stop sign, conduct that is exempted from the rules of the road under section 1104 (b), but rather he stopped and looked both ways before he proceeded into the intersection and struck plaintiff's vehicle. Thus, the court properly concluded that his 'injury-causing conduct . . . is governed by the principles of ordinary negligence.'" (citations omitted)
    • Note that although Veh. & Traf. L. 1104(c) states that an emergency vehicle may only engage in the permitted conduct if it has engaged its sirens, courts have held that use of sirens is not required in order for the emergency vehicle to qualify for the reckless disregard standard, Nikolov v Town of Cheektowaga, 96 A.D.3d 1372, 1373 (4th Dept. 2012), although whether or not a siren was engaged may be probative of whether the operator of the emergency vehicle acted with reckless disregard. See e.g. Badalamenti v. City of New York, 30 A.D.3d 452, 453 (2nd Dept. 2006).

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• There is a strong presumption that a person operating a vehicle is doing so with the owner's permission. See Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 A.D.2d 794, 797 (2nd Dept. 2003). Note that where a renter of a vehicle allows another person to drive the vehicle, that person, even if not authorized on the rental agreement, is considered to have "constructive permission" to operate the vehicle. Id. at 795-797 see further Murdza v. Zimmerman, 99 N.Y.2d 375, 380-381 (2003) and M.V.A.I.C. v. Cont'l Nat'l Am. Group Co., 35 N.Y.2d 260 (1974). Note that this rule would probably still require the rental company to act as insurer of the driver even in light of the Graves Amendment discussed below.
• An owner may place restrictions on the permission given to a person to operate his/her vehicle, and if those restrictions are violated, the use of the vehicle ceases to be permissive. Burmaster v. State, 7 N.Y.2d 65, 70 (1959). This is true only if the deviation from the permission is sufficient enough. For example, where the owner of a car had requested the driver to take her automobile to pick up a pizza and to "bring it right back", the driving the vehicle around while waiting for the pizza to be ready was not a sufficient deviation to negate the owner's liability. De Lancey v. Nationwide Ins. Co., 26 A.D.2d 631 (2nd Dept. 1966).
• The fact that the driver lacks a driver's license does not negate permission, Carter v. Travelers Ins. Co., 113 A.D.2d 178 (1st Dept. 1985), however, it may serve to rebut the presumption of permission thus leaving a question of fact regarding permission. See Payne v. Payne, 28 N.Y.2d 399, 406 (1971).
• This rule has been partially superseded by 49 U.S.C.A. 30106 (the "Grave Amendment") which says that an owner who is engaged in the business of renting or leasing vehicles may not be held liable for the operation of its vehicle, unless it was negligent in and of itself (e.g. renting a car to someone not fit to drive). Note that this federal law does not prohibit states from requiring a rental/leasing company to provide liability insurance for its vehicle. 49 U.S.C.A. 30106(b). See section below discussing New York's insurance requirements for rental vehicles.

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• Rental vehicles require state minimum liability coverage which includes anyone operating the vehicle with the renter's persmission, even if the person was not authorized on the rental agreement. Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 A.D.2d 794, 795-797 (2d Dep't 2003).
• The rental company's coverage must be primary coverage and, to the extent of state minimums, the rental car company/its insurer may not seek to recover its liability payments from its renter or from a person driving the rental vehicle with the renter's permission, even if that driver was not authorized on the rental agreement. ELRAC, Inc. v. Ward, 96 N.Y.2d 58 (N.Y. 2001) held that N.Y. Veh. & Traf. L. 370 requires rental companies to provide primary coverage for state minimums. That insurance must inure to the benefit of permissive users, and the rental car company may not seek indemnification from the renter/permissive user for damages paid within state minimums. That this requirement includes drivers who are not on the rental agreement but are permitted by the renter to drive the vehicle is discussed in Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 A.D.2d 794, 795-797 (2d Dep't 2003). Note that ELRAC v Masara, 96 N.Y.2d 847 (2001) seems to come to a contrary conclusion, at least regarding property damage coverage, but this decision was regarding a property damage claim at a point where New York law did not require property damage liability coverage. See Lancer, 304 A.D.2d at 797-798 and Matter of Allstate Ins. Co. v ELRAC Inc., 26 Misc. 3d 1234A (N.Y. Sup. Ct., Kings County, 2010). Note furhter that these rules would likely not apply to damage to the rental vehicle itself.
• New York liability policies include coverage for damages to vehicles rented by the insured and the insured's resident relatives. N.Y. Ins. L. 3440(b) requires that liability policies covering less than five private passenger vehicles include an endorsement covering the insured for liability for damages to rental cars rented under a term of thirty or fewer continuous days. Note that the coverage for rental vehicles comes out of the liability policy, not the collision policy, and hence is not subject to a deductibleSee this opinion of the State Insurance Department. Coverage is also not subject to a the liability poicy limit. See this opinion of the State Insurance Department
• Note that as discussed above the "Graves Amendment" protects a rental car companies from vicarious liability, but DOES NOT protect the rental car company/its insurer from the insurance obligations on a rental car.

• Loss-transfer (i.e. PIP recovery where a vehicle involved in an accident is a “vehicle for hire").
• Priority of payment (i.e. discussion of how to determine which insurer(s) owe PIP when a rideshare vehicle is involved, including availability of worker's compensation coverage for the TNC driver).
• Discussion of New York minimum liability insurance requirements
including a discussion of Veh. Traf. L. 1695(6) which provides a method to investigate whether a driver was connected to a rideshare network at the time of an accident.

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