## Facts

- Dr. Richard Oberly was transported in an ambulance while lying face-up on a stretcher with an IV needle in his arm and an IV pump placed on a shelf above him.
- The ambulance struck a curb, causing the IV pump to fall onto Oberly’s right forearm.
- Oberly alleged bruising, ongoing pain and cramping, and impairment affecting his ability to perform fine motor dental work.
- Medical proof characterized the condition as chronic ulnar neuropathy causing a permanent, partial loss of use of the right arm.
- Oberly missed approximately three weeks of work and modified some activities, but the record did not show meaningful limits on his dental practice or daily activities.

## Issues

1. Whether “permanent loss of use of a body organ, member, function or system” under New York Insurance Law § 5102(d) requires total loss of use, or whether permanent partial loss can satisfy that category when the plaintiff does not rely on the statute’s limitation categories.

## Decision

- The Court of Appeals affirmed summary judgment dismissing the complaint.
- The court held that the “permanent loss of use” category in Insurance Law § 5102(d) requires a total loss of use.
- Because plaintiffs pursued only the “permanent loss of use” category and showed, at most, permanent partial impairment, they did not establish a statutory “serious injury.”

## Legal Principles

- New York’s No-Fault Law permits tort recovery for non-economic loss only if the plaintiff proves a “serious injury” within Insurance Law § 5102(d).
- “Permanent loss of use of a body organ, member, function or system” means total loss of use, functionally equivalent to loss of the member itself.
- Permanent partial impairments are addressed, if at all, under distinct “limitation” categories (e.g., “permanent consequential limitation” or “significant limitation”), which are not interchangeable with “loss of use.”
- A plaintiff who elects to proceed only under “permanent loss of use” fails as a matter of law without proof of total loss.

## Conclusion

The court interpreted “permanent loss of use” in Insurance Law § 5102(d) to require total loss of use, and it affirmed dismissal because the evidence showed only permanent partial impairment and plaintiffs abandoned alternative serious-injury categories based on consequential or significant limitation.


Oberly v. Bangs Ambulance, Inc., 751 N.E.2d 457 (N.Y. 2001)