§ 5104. Causes of action for personal injury. (a) Notwithstanding any\nother law, in any action by or on behalf of a covered person against\nanother covered person for personal injuries arising out of negligence\nin the use or operation of a motor vehicle in this state, there shall be\nno right of recovery for non-economic loss, except in the case of a\nserious injury, or for basic economic loss. The owner, operator or\noccupant of a motorcycle which has in effect the financial security\nrequired by article six or eight of the vehicle and traffic law, or\nwhich is referred to in subdivision two of section three hundred\ntwenty-one of such law, shall not be subject to an action by or on\nbehalf of a covered person for recovery for non-economic loss, except in\nthe case of a serious injury, or for basic economic loss. No liability\nfor non-economic loss shall be fixed unless and until the trier of fact\nhas determined the existence of a serious injury. In any action to\nrecover non-economic loss pursuant to this article, the trier of fact\nshall not determine the question of whether an injury is a serious\ninjury until the trier of fact has determined the party or parties at\nfault.\n (b) In any action by or on behalf of a covered person, against a non-\ncovered person, where damages for personal injuries arising out of the\nuse or operation of a motor vehicle or a motorcycle may be recovered, an\ninsurer which paid or is liable for first party benefits on account of\nsuch injuries has a lien against any recovery to the extent of benefits\npaid or payable by it to the covered person. No such action may be\ncompromised by the covered person except with the written consent of the\ninsurer, or with the approval of the court, or where the amount of such\nsettlement exceeds fifty thousand dollars. The failure of such person to\ncommence such action within two years after accrual gives the insurer a\ncause of action for the amount of first party benefits paid or payable\nagainst any person who may be liable to the covered person for his\npersonal injuries. The insurer's cause of action shall be in addition to\nthe cause of action of the covered person except that in any action\nsubsequently commenced by the covered person for such injuries, the\namount of his basic economic loss shall not be recoverable.\n (c) Where there is no right of recovery for basic economic loss, such\nloss may nevertheless be pleaded and proved to the extent that it is\nrelevant to the proof of non-economic loss.\n (d) Notwithstanding the foregoing, and other than in an action for\ndamages for injuries resulting in death, recovery for non-economic loss\nshall be limited to one hundred thousand dollars in the case of a\nserious injury in any action by or on behalf of an injured person who is\nat fault, is not barred from recovery by section fourteen hundred eleven\nof the civil practice law and rules, and was (1) operating an uninsured\nmotor vehicle and responsible under article six of the vehicle and\ntraffic law for insuring such motor vehicle, except if a lapse in motor\nvehicle insurance coverage occurs for a period of time less than thirty\ndays; (2) operating a motor vehicle while impaired at the time of the\naccident and convicted of such; or (3) operating a motor vehicle in the\ncommission of a felony, or immediate flight therefrom, at the time of\nthe accident and has been convicted of such felony.\n
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