N.Y. Insurance Law § 5104: Causes of action for personal injury

§ 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.