New York’s Serious Injury Threshold Explained

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    New York is a no-fault insurance state.  This means that drivers are supposed to carry driver’s insurance to pay for their injuries after a crash.  While you can often file against the at-fault driver for vehicle damage, your injuries, medical care, and lost wages are covered exclusively by your own insurance unless you meet certain thresholds.

    The “serious injury threshold” rule says that unless your injuries are “serious,” you cannot sue for pain and suffering and cannot file a third-party insurance claim against the driver that hit you.  It is not enough for the other driver to have caused your crash; your injuries must also be severe enough before you can sue.  Understanding this rule is important if you were injured in a car crash in New York.

    Call our New York car accident lawyers at The Carrion Law Firm today at (718) 841-0083 for a free evaluation of your car accident case.

    How the Serious Injury Threshold Works in New York Car Insurance Claims

    Car insurance in New York covers the driver and any occupants in their car.  It also covers cyclists and pedestrians they hit.  This coverage is provided on a “no-fault” basis, which means that these covered people do not need to prove who was at fault before the insurance company pays them; they simply need to prove that the accident happened.  However, payments are limited, and lawsuits and third-party insurance claims cannot be filed against the at-fault driver to make up the rest of the damages unless you meet the serious injury threshold.

    Technically, the way this law works is that insurance is required to cover all “basic economic loss,” and lawsuits are not allowed.  Basic economic loss is defined by I.S.C. Law § 5102(a) to mean medical expenses and lost wages from an auto accident.  There are some limits to these – such as a $2,000 per month limit on lost wages – but some additional expenses can be covered as well.  What is important is that pain and suffering is missing from this coverage.

    To sue or file an insurance claim for damages beyond this basic economic loss, you have to have a “serious injury” as defined by § 5102(d).  If your injuries meet this definition, then you can file a third-party claim against the at-fault driver’s liability insurance or sue them directly in a lawsuit with the help of our New York car accident attorneys.  That way, you can recover damages above and beyond what your no-fault damages cover, including damages for pain and suffering.

    What Injuries Meet the Serious Injury Threshold in New York?

    Section 5102(d) specifically defines “serious injury” to include a list of permanent and serious injuries.  Any injuries that meet this definition can open access to a lawsuit and pain and suffering damages, but any injuries that are less than these do not qualify.

    Death and Death of a Fetus

    Under this rule, death and loss of a fetus are always “serious.”  That means that if you lost a pregnancy in the crash or a loved one was killed in a car accident (whether you were in the car or not), then you should be able to sue for the loss.  Pain and suffering for the victim’s pre-death fear, pain, and anguish should be available when suing for a loved one’s death in a car crash, but you cannot usually sue for your own pain and suffering caused by their death.

    Loss of a Limb or Loss of Function

    Loss of limb or permanent loss or lost use of a body part or organ also qualifies as serious.  This includes serious injuries like amputation, but it can also include something like an injured kidney that needed to be removed.  Sufficiently serious loss of function also qualifies as if it were a loss of the body part entirely.  So, for example, paralysis is always going to qualify as a “serious injury.”


    “Significant disfigurement” also qualifies.  While scars are typically permanent, scars are not considered “permanent injuries” unless the scarring is “significant.”  This means that burns over your chest or multiple facial scars would likely qualify, but a single scar up your leg might not.  However, the question of what is “significant” is often left to the court to decide.

    Broken Bones

    The statute also says that “a fracture” is a serious injury.  This means that any broken bone should allow you to sue for injuries, even if those injuries might be somewhat mild compared to the more serious injuries on this list.

    “90-Day Rule”

    Injuries also qualify as “serious” if they meet the “90-Day Rule.”  The statute says that an injury qualifies as a “serious injury” if it will prevent the victim from doing their “usual and customary” activities.  That means that it would keep them from doing things like dressing themselves, feeding themselves, going to work, and otherwise performing activities of daily living.

    If this condition will stop the victim from living normally for 90 of the following 180 days after the accident, it qualifies as a “serious injury.”  Determining whether an injury is serious enough under this section of the rule often requires the court to receive evidence of the impact of the injury and get a medical determination agreeing that the injury in fact meets this rule’s requirements.

    Suing for Pain and Suffering in a Car Accident in New York

    As mentioned, pain and suffering damages are blocked in a car accident case in New York unless and until you meet the serious injury threshold.  If your injury is serious enough, you can sue for pain and suffering.  Otherwise, you cannot get pain and suffering damages from insurance for a car accident in New York.

    Serious Injury Threshold for Bikes, Pedestrians, and Motorcycles in New York

    The serious injury threshold also applies to pedestrians and people riding bicycles.  They are covered by the driver’s insurance, but they still cannot sue for pain and suffering unless they meet the serious injury threshold.

    Motorcycle riders do not use no-fault insurance in New York.  This means that they are in fact allowed to sue for injuries and do not have to meet the serious injury threshold before they can file for pain and suffering damages.

    For a Free Case Assessment, Call Our New York Car Accident Lawyers Today

    If you were hurt in a crash, call The Carrion Law Firm’s Long Island car accident lawyers at (718) 841-0083.