Auto Insurance Claims: Injured in Car accident, insurance co bankrupt - NY, new york no pay no play

Question
I Really hope you can help! I was rear-ended while waiting for light to turn green. I am having surgery in a few weeks on my back. My insurance company is claiming bankruptcy and is telling me my policy was cancelled 3 days before my accident so they will not pay for my medical, pain and suffering. I am trying to contact new york state but lets just say the insurance company gets away with denying my claim..am I able to sue the driver of the car? or his insurance company? His insurance company already paid for my car to be fixed and said they do not pay medical. Who do I get to pay for everything? plus money for pain and suffering? A family friend who is a personal Injury attorney said I am pretty much screwed if my insurance company wont pay. Is this true??? REALLY appreciate your help!!

Answer
So Bari, in New York they use a "no-fault" system.  This means that you cannot pursue the other party for "non-economic" damages unless your injury meets the definition of serious injury. . .

(d) "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Now, as for whether you have insurance or not, that is an important question to answer.  I searched for a related law in NY to see if you are barred from making a third party claim if you are uninsured (New Jersey has a law like this), but I couldn't find anything on point.  I am not an attorney and I cannot provide an interpretation of the law.  I called a New York attorney and they advised that they pursue injury cases against third parties all the time, even when their client is uninsured.  An attorney that is not representing you is no help.  Not all attorneys are this way, but most attorneys that don't know the answer to a question will tell you that you don't have a case, don't believe it.  Do you own research.  Article 51 of the NY insurance code seems to be the relevant statute to your situation.

Also, if your policy was not canceled, even if the insurance company is going bankrupt, there is normally a state "guarantee association" of which most insurance companies are members.  This guarantee association or fund is meant to pay claims when an insurer becomes insolvent.  Check into this option if you know your policy should have been active and can prove it.  Did you pay for insurance?  Do you have the receipt?  Anyway, I'm sorry I could not be more clear in this answer, the question is complicated and I feel a proper answer would require a sharp attorney.

JP