On August 15, 2012, Elaine Steinbok was on her way home from work when the taxicab in which she was a rear seat passenger made a left turn and struck a New York City Parks & Recreation vehicle at the intersection of Riverside Drive and West 76th Street in Manhattan.

Ms. Steinbok, then 34 years old, sued both drivers. A jury ultimately determined that the taxi driver was fully at fault and the city driver was fully exonerated.

The same jury, though, then ruled that plaintiff had not met the serious injury threshold under Insurance Law Section 5102(d) and, therefore, the jury awarded no damages at all for plaintiff’s pain and suffering.

The trial judge issued a decision upholding the jury’s determination in Steinbok v. City of New York (Supreme Court, New York County, 2019).

Plaintiff was transported by ambulance to a local hospital where she was diagnosed with a concussion and discharged to home several hours later.

Plaintiff claimed that as a result of the accident she sustained the following additional injuries:

  • a torn posterior labrum in her left shoulder that required arthroscopic surgery to repair two months later, with 14 months of post-operative physical therapy

  • a partially torn posterior cruciate ligament (PCL) in her left knee that will require surgery in the future
  • inability to return to work as a strategy supervisor in media advertising for nine months
  • neck and back pain requiring nine trigger point injections
  • continuing pain in knee, neck and shoulder with difficulty walking and trouble lifting 15 month old grandchild

The defendants argued (and the jury agreed) that plaintiff’s injuries were insufficient to meet the three serious injury threshold categories that they were instructed to consider by the judge in his charge to the jury :

  • a significant limitation of use of a body function, organ or system,
  • a permanent consequential limitation of the use of a body function, organ or system, or
  • a medically determined injury that prevented plaintiff from performing her usual and customary daily activities for 90 out of the 180 days immediately following the injury

Plaintiff did not present any of her treating physicians; rather the only medical witness testifying on her behalf was an orthopedic surgeon who examined her once five and a half years after the accident.

The defendants produced experts in emergency medicine, radiology and orthopedics. They opined that plaintiff’s injuries were not caused by the accident but were instead the result of either degenerative, pre-existing conditions or, in the case of the shoulder, impingement syndrome. The defense made much of the fact that the emergency room record contained no mention of shoulder or knee pain which, they argued, would have been present had plaintiff sustained a torn PCL or shoulder ligament.

Plaintiff filed a notice of appeal and we will follow this case for its ultimate resolution.

Inside Information:

  • In his closing argument, plaintiff’s attorney requested the jury to award past pain and suffering damages in the sum of $250,000 plus $476,000 for future pain and suffering (based upon plaintiff’s life expectancy of 47.6 years).
  • Plaintiff was not wearing a seat-belt. When an available seat-belt is not used and there is expert testimony from which the jury can conclude that some or all of the plaintiff’s injuries could have been avoided had the plaintiff worn the seat-belt, then plaintiff cannot recover for those injuries. The defense requested a charge to the jury along the lines of the foregoing but the judge refused because there was no expert testimony that the use of a seat-belt would have limited the injuries sustained.