The Serious Injury Threshold in New York

What is the serious injury threshold?

It is the legal gate that decides whether you can sue for pain and suffering after a car accident in New York at all. Insurance Law 5104(a) bars recovery for non-economic loss between covered persons in motor vehicle negligence cases except in the case of a serious injury, and Insurance Law 5102(d) defines that term.

The consequence is blunt. If your injury does not fit one of the statutory categories, backed by objective medical proof, there is no pain and suffering claim no matter how clearly the other driver was at fault. Liability is not the question. Eligibility is.

Did the threshold change in 2026?

Yes, and a great deal of what is currently published about it is now wrong.

Part EE of Chapter 58 of the Laws of 2026, enacted with the state budget and signed on 26 May 2026, repealed the ninth category, the one practitioners called the 90/180 rule. It covered a non-permanent injury that prevented the person from performing substantially all of their usual daily activities for at least 90 of the 180 days after the crash. It was one of the three most heavily used categories in the statute.

Two details decide whether it applies to you:

• The trigger is the date the action is commenced, not the date of the crash. A 2024 collision sued on today is governed by the new law. A case already pending on 26 May 2026 continues under the old one.
• Nothing else in the definition changed. The remaining eight categories are word for word what they were. Claims that the amendment added an objective medical verification requirement are not supported by the statutory text.

The practical effect is that a category many soft tissue claims relied on is simply gone, and those cases now have to fit one of the eight that remain.

What are the categories now?

Category	What it means
Death	The estate’s claim is not blocked by the threshold.
Dismemberment	A body part severed or amputated.
Significant disfigurement	Scarring or altered appearance that a reasonable person would find objectionable.
A fracture	A broken bone, established by imaging.
Loss of a fetus	A pregnancy lost as a result of the crash.
Permanent loss of use of a body organ, member, function or system	Requires a total loss of use. Partial does not qualify.
Permanent consequential limitation of use of a body organ or member	A permanent limitation that is important, not minor, mild or slight.
Significant limitation of use of a body function or system	Significant in degree. Does not have to be permanent.

Note that the statute is a single sentence with a semicolon-separated list. It has no numbered subparagraphs, so a citation in the form “5102(d)(4)” does not correspond to anything in the law.

Which categories actually get litigated?

Death, dismemberment, fracture and loss of a fetus are usually provable or not on the face of the records. The fights are almost always over the last two.

The Court of Appeals described significant limitation in Pommells v. Perez, 4 N.Y.3d 566 (2005), as the subcategory into which soft tissue claims commonly fall. With the 90/180 category repealed, that is even more true now.

What is the difference between permanent consequential and significant limitation?

They are frequently written about as though interchangeable. They are not.

	Permanent consequential limitation	Significant limitation
Body part	An organ or member	A function or system
Permanence	Required	Not required
Focus	That the limitation is consequential, meaning important	The degree of limitation

Both are measured the same way. The question is one of medical significance, involving a comparison of the degree or qualitative nature of the injury against the normal function, purpose and use of the body part. And under Licari v. Elliott, 57 N.Y.2d 230 (1982), a minor, mild or slight limitation is insignificant as a matter of law.

What proof does the threshold require?

Objective medical evidence. Your own account of your pain, however truthful, is not enough on its own.

Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345 (2002), holds that the extent of a limitation can be shown in either of two ways:

1. An expert’s numeric percentage of range of motion loss, or
2. A qualitative assessment, provided it has an objective basis and compares your limitations to the normal function, purpose and use of the affected body part

That second route matters, because it means a case is not lost merely because nobody recorded degrees of motion at the right moment.

On that point, Perl v. Meher, 18 N.Y.3d 208 (2011), rejected a rule requiring contemporaneous quantitative measurements. A doctor may record qualitative observations soon after the crash and take precise measurements later. The Second Department, which governs Nassau County, had been the strictest department on this and was reversed. It restated the current rule as recently as 2026.

Is a herniated disc a serious injury?

Not by itself. This is probably the most common error on the subject.

Pommells is explicit that proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, does not alone establish a serious injury. An MRI showing a herniation proves a herniation. It does not prove what you cannot do.

Why do treatment gaps sink otherwise good cases?

Because Pommells also recognized that even objectively proven injuries can fail where something interrupts the chain of causation. Three recurring problems:

• A gap or cessation in treatment that is never explained
• An intervening medical problem or later accident
• A preexisting or degenerative condition

The degenerative defense is the one that decides the most Nassau County cases. Defendants routinely produce a radiologist who attributes the findings to age. Where the plaintiff’s expert never addresses that opinion, the Second Department dismisses. Where the plaintiff’s expert does address it, the case usually survives. Stopping treatment because insurance benefits ran out can be a legitimate explanation, but it has to be given, not assumed.

How is this different from no-fault benefits?

They are separate systems, and conflating them is why people misjudge what a case is worth.

	No-fault benefits	Pain and suffering claim
Paid by	Your own insurer	The at-fault driver’s insurer
Fault matters?	No	Yes
Covers	Medical bills, some lost earnings, some expenses	Pain, suffering, non-monetary loss
Threshold applies?	No	Yes

Basic economic loss under Insurance Law 5102(a) is capped at 50,000 dollars per person, with lost earnings paid up to 2,000 dollars a month for up to three years, and other reasonable and necessary expenses up to 25 dollars a day for up to a year. That figure is a benefit limit. It is not a measure of what a liability claim is worth, and crossing the threshold is what unlocks the separate claim against the driver who caused the crash.

Does the threshold apply to every injury case?

No. It applies only to negligence in the use or operation of a motor vehicle, between covered persons, under 5104(a). It has nothing to do with a slip and fall, a construction accident, a dog bite, or a medical malpractice claim. Those are governed by ordinary negligence rules with no threshold at all.

What else changed in 2026?

The same legislation made three further changes worth knowing about:

• Order of proof. New language in 5104(a) says liability for non-economic loss is not fixed until the trier of fact has determined that a serious injury exists, and that the serious injury question is not reached until fault has been determined. Commentators disagree about how courts will apply this, and no appellate decision has construed it yet.
• A cap in certain cases. A new 5104(d) caps non-economic loss at 100,000 dollars, outside death cases, for an at-fault injured person who was driving uninsured when required to be insured, was impaired and convicted of it, or was driving in the commission of a felony and convicted of it.
• Comparative fault in motor vehicle cases. CPLR 1411 was amended so that motor vehicle cases under Article 51 are treated differently from other negligence claims. This is covered separately in our guide on comparative negligence in New York.

Because no court has yet interpreted any of these provisions, anyone who tells you confidently how they will play out is guessing.

Where these cases are heard in Nassau County

Threshold cases are tried in Supreme Court, Nassau County, which sits in the Tenth Judicial District together with Suffolk. Nassau County District Court is limited to 15,000 dollars, so essentially all of this litigation is in Supreme Court. Appeals go to the Appellate Division, Second Department, whose decisions are the controlling body of law for a Nassau practice.

Related: deadlines for bringing an injury claim and personal injury representation on Long Island.