Uninsured and Underinsured Motorist Claims in New York

What happens if the driver who hit you had no insurance?

You claim against your own policy. Every New York auto policy carries uninsured motorist coverage by law under Insurance Law 3420(f)(1). It applies when the at-fault driver had no insurance, when the vehicle was stolen or driven without permission, when the driver fled and was never identified, or when the other insurer denies coverage or goes insolvent.

A related but separate coverage, supplementary uninsured/underinsured motorist coverage, usually called SUM, applies to the far more common situation: the other driver had insurance, but nowhere near enough.

What is the difference between UM and SUM?

	Uninsured motorist	SUM (underinsured)
Required?	Yes, on every policy	Optional, but provided at your liability limits by default since June 2018 unless you signed a waiver
When it applies	No insurance, hit and run, or the other insurer disclaims	The other driver had insurance in a lesser amount than your own
Who pays	Your own insurer	Your own insurer
Extra proof	Physical contact and a 24-hour report, for hit and run	Exhaustion of the other driver’s limits
Serious injury needed?	Yes	Yes

Both are contract claims against your own insurance company, which changes the procedure considerably.

Why does this matter so much in New York?

Because the state minimum is low and has not moved in three decades.

New York requires only 25,000 dollars in bodily injury coverage per person and 50,000 dollars per accident. The last increase took effect in 1996. Bills to raise it have been introduced repeatedly and remain in committee, so despite periodic reporting to the contrary, the minimum has not changed.

A serious injury routinely exceeds 25,000 dollars in medical bills alone. SUM coverage on your own policy is what closes that gap, and it is inexpensive relative to what it protects.

Does SUM stack on top of what the other driver paid?

No, and this is the single most common error written about SUM.

SUM pays the difference, not an additional amount. Your SUM limit is reduced by what you recovered from the at-fault driver.

	Amount
Your SUM limit	$100,000
Recovered from the at-fault driver	$25,000
Maximum SUM payment	$75,000
Total recovery	$100,000, not $125,000

The same logic blocks stacking across policies. If you are covered under more than one household policy, your recovery is capped at the highest single limit rather than the sum of them.

One important thing that is not deducted: no-fault benefits. Payments of first-party benefits for basic economic loss do not reduce what your insurer owes for pain and suffering or for economic loss above the basic amount.

How do you know if SUM is even triggered?

By comparing the at-fault driver’s liability limit to your policy’s bodily injury liability limit, which is not necessarily the same number as your SUM limit.

The other driver’s limits must be less than yours. Equal limits do not trigger SUM, which the Court of Appeals confirmed in Matter of Allstate Insurance Co. v. Rivera, 12 N.Y.3d 602 (2009). Since 2018 those two figures are usually identical on a New York policy, but not where the insured signed a waiver to take less.

Do you still have to prove a serious injury?

Yes, for both coverages, and people are frequently told otherwise.

For uninsured motorist coverage the requirement is in the statute itself. For SUM it comes from the prescribed policy endorsement, which the Court of Appeals upheld in Raffellini v. State Farm Mutual Automobile Insurance Co., 9 N.Y.3d 196 (2007), holding that the insured must prove serious injury.

The argument that no threshold applies because you are suing your own insurer on a contract was the Appellate Division position in that case, and it was reversed. It is not the law.

The 2026 amendment reaches these claims too. Both coverages incorporate the serious injury definition by live reference, so when the 90/180 category was repealed from Insurance Law 5102(d) in May 2026, the threshold for UM and SUM claims narrowed with it. Someone whose only route past the threshold was that category now has none, and recovers nothing for pain and suffering even though economic loss above the basic amount is still payable. See our guide on the serious injury threshold.

What are the deadlines?

The dangerous ones are not statutes of limitations. They are conditions in the policy.

• Notice “as soon as practicable.” For SUM the clock is measured from when you knew or reasonably should have known the other driver was underinsured, not from the date of the crash. That is an objective standard, so waiting until someone tells you is not a defense.
• Hit and run: report within 24 hours, or as soon as reasonably possible, to police or the DMV, and provide a sworn statement of the facts. A hit and run claim also requires physical contact under Insurance Law 5217, and the burden of proving it is on the insured.
• Twenty days to move to stay arbitration. Once a demand for arbitration is served, a party has 20 days to apply for a stay or loses the right to object that the agreement was not complied with. This deadline is missed constantly on both sides.
• Six years generally applies to a contract claim against your own insurer, though accrual is fact-specific and policies can shorten it.

If you had no policy of your own at all, a claim may lie with the Motor Vehicle Accident Indemnification Corporation instead, which runs on its own much shorter notice periods.

Can you settle with the other driver first?

Not without your own insurer’s written consent, and getting this wrong forfeits the coverage. This is where more SUM claims are lost than anywhere else.

The endorsement excludes coverage where the insured settles with a liable party without written consent. The Second Department stated the consequence plainly in Matter of Travelers Home and Marine Insurance Co. v. Kanner, 103 A.D.3d 736 (2d Dep’t 2013): failing to obtain consent breaches the contract and disqualifies the insured from the benefits, unless the insurer waived the requirement or acquiesced.

There is a safe harbor, and it is narrow. Where the settlement is for the at-fault party’s full available limit, the insured may give written notice and, if 30 days pass without the insurer either consenting or advancing the money itself, may then settle. The Second Department applied that route in Unitrin Direct Insurance Co. v. Muriqi, 172 A.D.3d 1382 (2d Dep’t 2019).

Two related traps:

• A general release given to the at-fault driver is presumed to have damaged your insurer’s subrogation rights, and the burden falls on you to show the release reserved them.
• Consent obligations survive after one driver’s policy has been exhausted. Settling later with a second driver still requires consent.

On exhaustion itself, the rule is more forgiving than people assume: exhausting the limits of any single liable party can be enough, rather than every policy involved.

Does a SUM case go to court or arbitration?

Usually arbitration, which is faster, private, and heard without a jury.

The insured generally elects arbitration or a lawsuit, though where the SUM limit is only the statutory minimum either side may demand arbitration. Threshold coverage questions, such as whether there was physical contact in a hit and run, whether the other vehicle was insured, and whether notice was timely, are typically decided by a court on a petition to stay arbitration, sometimes after a hearing. The arbitrator then decides fault and damages.

Review of an arbitration award is very limited. An arbitrator’s mistake about the law is generally not a ground to vacate, which is worth understanding before choosing that route.

Does the new comparative fault rule apply to a SUM claim?

Nobody knows yet, and it is the most consequential open question in this area.

The 2026 amendment bars recovery in a motor vehicle “action” where the injured person’s fault is greater than the other side’s. A SUM arbitration is not an action; it is a contract proceeding against your own insurer. But the arbitrator has to decide what you would be legally entitled to recover from the at-fault driver, and the driver’s defenses flow into that question.

The mechanically likely result is that a SUM claimant found more than half at fault recovers nothing rather than a reduced award. No court has decided it. A related question, whether an arbitration demand counts as a proceeding “commenced” for the amendment’s timing rule, is equally unresolved.

Anyone stating either point confidently is predicting, not reporting. See comparative negligence in New York.

What should you do after a crash with an uninsured driver?

• Report it immediately, especially a hit and run, where 24 hours is the benchmark.
• Notify your own insurer even if you think the other driver was covered. Giving timely notice of the accident preserves arguments later if the SUM notice is delayed.
• Do not sign anything from the other driver’s insurer without advice. A release can end your SUM claim as well as theirs.
• Find out the other driver’s actual limits early. Whether SUM is available at all depends on that number.
• Check your own declarations page. Many people are carrying far less SUM than they could, or waived it.

Where these cases are heard in Nassau County

Petitions to stay or compel SUM arbitration, and hearings on physical contact, coverage and notice, are brought in Supreme Court, Nassau County, at 100 Supreme Court Drive in Mineola. Nassau sits in the Tenth Judicial District, and appeals go to the Appellate Division, Second Department, whose decisions on consent to settle and hit and run proof are the controlling authority here.

Related: the serious injury threshold, deadlines for injury claims, and personal injury representation on Long Island.