Click here to download our printable quick guide to New York PIP recovery (updated January, 2012).
Click here for our Guide to Recovery of PIP in New Jersey.

This is a basic primer on New York law as pertaining to recovery 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 was last updated on January 9, 2012.

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
• 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 exceptions 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."

N.Y. Insurance Law § 5104 (a):No recovery by one "covered person" against another "coverd 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 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.
• 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). 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.
• 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). 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.

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

• 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 preculed 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 should also be recoverable on behalf of a motorcyclist. 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: N.Y. Insurance Law § 5104 (a) only prevents recovery from a covered person, which is to say a motor vehicle (and pedestrians) covered by the PIP system. If a person is injured, for instance, by negligent service of alcohol, by a pothole, or by anything else, PIP may be recovered. Such recoveries would be governed by the rules of § 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 (3 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. 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). This means that an out-of-state vehicle that qualifies as covered person 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).

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

• Insured's attorney is not entitled to contingency fee on the lien amount: Breier v. Government Emp. Ins. Co., 79 A.D.2d 967, 435 N.Y.S.2d 283, (1st. Dept. 1981). 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, and the attorney and his/her client share the remaining $50,000 as per their retainer.

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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.

What this statute says:

• If an PIP carrier or workers' compensation policy pays PIP style damages, they 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 (e.g. a taxi or a vehicle used in shipping goods). NOTES:
  • 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 recovery 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 effect 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 expception for APIP, since this exception merely affirms the APIP subrogation right, rather than creating a direct statutory right to recover APIP.
• 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). 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 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).

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

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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(b), the insurer must take the other insurer to binding arbitration. The Superintendent of Insurance can set the rules for the arbitration. Insurers who disagree as to which company should provide PIP benefits (priority of payment) must also arbitrate this question. NOTE that in 11 N.Y.C.R.R. 65.10(b) the Superintendent selected Arbitration Forums as the exclusive arbitrator for these matters.
• Click here to read 11 N.Y.C.R.R. 65.10 which are the Superintendent's regulations for arbitration authorized by this section. This link will open in a new window. To return to this window, close the new window.

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 goverend by the three-year statute of limitations for liabilities created by statute. C.P.L.R. 214(2). c.f. Motor Vehicle Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d, 214, 221, 652 N.Y.S.2d 584 (1996). C.f. Matter of Liberty Mut. Ins. Co. [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 innitiated 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: The regulations at 11 N.Y.C.R.R. 65.10(b) require that Arbitration Forums, Inc. be used for PIP arbitration.
• 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 Click here to read 11 N.Y.C.R.R. 65.10 which treats self-insurers as insurers.
• 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). 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).

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

• 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." (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.
• Accidentally suing instead of arbitrating will still cover the Statute of Limitations: 11 N.Y.C.R.R. 65.10(d)(5)(i) specifies that if a matter that should go to Arbitration Forums is "inadvertently placed in litigation," the case can be discontinued for purposes of submitting the matter to Arbitration Forums, and for Statute of Limitations purposes it will be counted as if the matter was filed with Arbitration Forums on the day that the litigation was instituted.
• Statute of Limitations will be extended if there is a coverage dispute: 11 N.Y.C.R.R. 65.10(d)(5)(i) specifies that if there is a dispute as to coverage pending, the running of the Statute of Limitations is delayed until the matter is resolved.
• 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.
• 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. Some important notes:
  • In general, 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. See N.Y. Ins. L. 5103.
  • 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).
  • 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).

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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.

• Selected New York Statutes of Limitation
  • 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).
  • 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.

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• The effect on subrogation rights if the insured signs a release for the adverse party: One common defense against a subrogation claim is that the company's insured has already signed a release to the adverse party. Example: Insurance company (I) paid a $5,000 property damage claim to client (C), and attempts to subrogate against adverse party (A). A (or A's insurance company) claims that C signed a release, releasing A from any further liability. While this can be a valid defense, it very often is not, as there are several exceptions that can be exploited:
  • 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, 173 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 effect 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 effect 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 expception for APIP, since this exception merely affirms the APIP subrogation right, rather than creating a direct statutory right to recover APIP.

• Additional PIP may be subrogated: N.Y.Insurance Law § 5104 (a) prohibits only the recovery of "basic economic loss" which means the first $50,000 of medical expenses and lost wages. It does not prohibit recovery of Additional PIP ("APIP") payments. See Allstate Ins. Co. v. Mazzola 175 F. 3d 255 (3rd Cir. 1999). Note that the antisubrogation law passed in New York in 2009 explicitly allows APIP recovery (N.Y. Gen. Obl. L. 5-335(b)). It may, however, prohibit recovery for other economic losses (e.g. medpay). Some additional notes:
  • 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.
  • 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).

• Joint and several liability in New York "When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable." Ravo v. Rogatnick, 70 N.Y.2d 305, 310, 520 N.Y.S.2d 533, 514 N.E.2d 1104 (1987). What this means is that if two or more people do something wrong at the same time and each of these wrongs combines to cause an injury, any one of those wrongdoers may be held liable for 100% of the damages (with certain exceptions discussed below). This comes in particularly handly when some tortfasors may not have the money or insurance to pay for the damages that they caused. Note that a tortfeasor that is held liable to pay more than his or her "fair share" of the damages may, generaly, seek contribution from the other tortfeasors. For practical and legal reasons, a Plaintiff will often sue all of the tortfeasors at the same time, and if the Plaintiff has not done so, the tortfeasor(s) who is (are) sued will likely bring the other tortfeasors into the case.
  Example:
  

  • A and B negligently drive their respective vehicles and cause an accident which damages C in the amount of $5,000. C can sue A for the full $5,000 and if A is found negligent (even if not 100% at fault), A will have to pay the $5,000. A can then seek contribution from B.

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 exceptions to joint and several liability in New York. N.Y.C.P.L.R. § 1601 introduces A limited exceptions 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 tehrefore 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 f 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).

• Selected special rules for claims against government entities (e.g. New York state, municipalities, etc.).
• 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 through arbitration pursuant to Ins. L. 5105. 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 in order to be on the safe side.
  • Tort Claims Notices: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. 5o-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. For claims against New York State, see Ct. Cl. Act 10(3) (actually, 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). There are provisions to relax these filing rules at the discretion of the court, which 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. 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.
    • 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)
  • Statute of Limitations:The SOL for a tort claim against New York state is 2 years (1 year for an intentional tort). 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. For claims against municipalities, the SOL is one year and 90 days (2 years for a wrongful death claim), per Gen. Mun. L. 50-i. HOWEVER, for some entities the SOL may be as short as 1 year. For instance, the SOL is one year for a suit against the Port Authority, N.Y.L. 1950, ch. 301, § 7 see further Trippe v. Port of New York Authority, 14 N.Y. 2d 119, 123 (1964)("We hold that the one-year limitation is mandatory as to all suits against the Port Authority.") the New York City Scool Construction Authority, Public Authorities Law 1744(1), and public authorities such as the Triborough Bridge and Tunnel Authority, Pub. Auth. L. 569-a, see further Guillan v Triborough Bridge & Tunnel Auth., 202 A.D. 2d 472, 473-474 (2nd. Dept. 1994).
• 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. For instance, a municipality may not require written notice before it can be held liable for its failure to maintain or erect traffic control devices such as stop signs. Adams v. Town of Lisbon, 170 A.D. 2d 901 (3rd. Dept. 1991), Fitzpatrick v. Barone, 215 A.D. 2d 351 (2nd Dept. 1995), compare Forsythe-Kane v. Town of Yorktown 249 A.D.2d 505 (2 Dept. 1998)(foliage obstructing line of sight is an obstruction in the street and may require written notice).
  • Note that this law merely allows a municipality to require written notice in particular situations before it can potentially be held liable. In all cases, whether the municipality had actual or written notice of the defect will be a significant part of determining whether the municipality was negligent.
• 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).

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