Serious Injury Threshold NY Guide

Eight categories. For actions and proceedings commenced on or after May 26, 2026, Insurance Law § 5102(d) defines "serious injury" as a personal injury that 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; or
• significant limitation of use of a body function or system.

The date that matters is when the lawsuit is commenced, not the accident date, according to NY DFS Insurance Circular Letter No. 3 (2026).

Cases commenced earlier may still rely on the former "90/180" category. Before the 2026 amendment, § 5102(d) also covered a medically determined injury or impairment of a non-permanent nature that prevented the injured person from performing substantially all of their usual and customary daily activities for at least 90 days during the 180 days immediately after the injury. Part EE of Chapter 58 of the Laws of 2026 deleted that category for actions and proceedings commenced on or after May 26, 2026, as described in NY DFS Insurance Circular Letter No. 3 (2026).

If your case was filed before that date, or you are not sure which date applies, ask a lawyer which version of the law governs it.

Three more changes apply to actions commenced on or after May 26, 2026:

• Fault is decided first. In an action for non-economic loss under Insurance Law Article 51, the judge or jury must first decide who was at fault and then whether there is a serious injury; liability for non-economic loss is not fixed until a serious injury is found (NY DFS Insurance Circular Letter No. 3 (2026)).
• A $100,000 cap in limited situations. Insurance Law § 5104(d) caps non-economic damages at $100,000 for an injured person who is at fault (but not barred by CPLR 1411) and who was driving an uninsured vehicle they were responsible for insuring (a lapse of less than 30 days is excepted), was driving while impaired and convicted, or was operating a motor vehicle in the commission of a felony, or in immediate flight from it, and was convicted of that felony. The cap does not apply to death cases.
• Greater fault bars recovery. Under CPLR 1411(b), in a personal-injury action subject to Insurance Law Article 51, an injured person whose share of fault is greater than the defendant's share (or the defendants' combined share) cannot recover. In other cases, CPLR 1411(a) still reduces damages in proportion to the injured person's fault instead of barring them.

Yes. A gap or stop in treatment needs an explanation. In Pommells v Perez, 4 NY3d 566 (2005), the Court of Appeals held that a plaintiff who stops treatment while claiming a serious injury "must offer some reasonable explanation for having done so." The court also noted that stopping treatment is not automatically fatal, because the law does not require a record of needless treatment.

The medical proof has to address them. In Pommells, the Court of Appeals said that even with objective medical proof, dismissal may be appropriate when a gap in treatment, an intervening medical problem or a pre-existing condition interrupts the chain of causation between the accident and the claimed injury. Records from before and after the crash help show what the accident changed.

Objective findings, not complaints alone. In Toure v Avis Rent A Car Systems, 98 NY2d 345 (2002), the Court of Appeals said subjective complaints alone are not sufficient. A doctor may show the degree of limitation with a numeric percentage of lost range of motion, or with a qualitative assessment that has an objective basis and compares the limitation to the normal function of the affected body part or system.

In a form the court will accept, such as an affirmation. Under CPLR 2106, a statement affirmed to be true under penalty of perjury may be used in place of an affidavit. In Toure, for example, the defendants supported their motion with a neurologist's affirmation. Your lawyer should make sure your medical evidence is submitted properly.

No-fault (PIP) benefits are the first source for basic economic loss. The serious injury threshold matters when you sue another driver for non-economic loss. No-fault claims have their own notice deadlines; see our NY no-fault and PIP law guide.