Legislation

§ 5104. Causes of action for personal injury. (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. No liability
for non-economic loss shall be fixed unless and until the trier of fact
has determined the existence of a serious injury. In any action to
recover non-economic loss pursuant to this article, the trier of fact
shall not determine the question of whether an injury is a serious
injury until the trier of fact has determined the party or parties at
fault.

(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 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 shall not be recoverable.

(c) Where there is no right of recovery for basic economic loss, such
loss may nevertheless be pleaded and proved to the extent that it is
relevant to the proof of non-economic loss.

(d) Notwithstanding the foregoing, and other than in an action for
damages for injuries resulting in death, recovery for non-economic loss
shall be limited to one hundred thousand dollars in the case of a
serious injury in any action by or on behalf of an injured person who is
at fault, is not barred from recovery by section fourteen hundred eleven
of the civil practice law and rules, and was (1) operating an uninsured
motor vehicle and responsible under article six of the vehicle and
traffic law for insuring such motor vehicle, except if a lapse in motor
vehicle insurance coverage occurs for a period of time less than thirty
days; (2) operating a motor vehicle while impaired at the time of the
accident and convicted of such; or (3) operating a motor vehicle in the
commission of a felony, or immediate flight therefrom, at the time of
the accident and has been convicted of such felony.