Every car accident in New York starts with the same question: can you sue?
The answer depends on a single statute. defines “serious injury.” That definition controls whether you can recover anything beyond your basic no-fault benefits. If your injuries meet the threshold, you can pursue a full lawsuit for pain and suffering, lost wages beyond the PIP cap, and other non-economic damages. If they don’t, your recovery maxes out at what no-fault pays: $50,000.
This is the gatekeeping mechanism of New York personal injury law. It applies to every motor vehicle accident in the state. It’s the single most litigated issue in car accident cases.
How No-Fault Works
New York adopted its no-fault insurance system in 1973. The basic premise: after a car accident, your own insurance company pays your medical bills and a portion of your lost wages, regardless of who caused the crash. In exchange, you give up the right to sue for minor injuries.
What No-Fault Covers
Under the Personal Injury Protection (PIP) portion of your policy, no-fault pays up to $50,000 in “basic economic loss”:
- Medical expenses. All necessary medical treatment related to the accident, including hospital stays, surgery, physical therapy, diagnostic imaging, and prescriptions
- Lost earnings. 80% of your lost income, capped at $2,000 per month
- Other expenses. Up to $25 per day for reasonable costs like transportation to medical appointments, household help, and childcare necessitated by your injuries
- Death benefit. $2,000
Filing for treatment
Medical providers must submit bills to the no-fault insurer within 45 days of treatment. Denied claims get challenged through arbitration, not court.
What No-Fault Doesn’t Cover
No-fault is strictly economic. It doesn’t compensate:
- Pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Loss of consortium
- Full lost wages above the $2,000/month cap
- Future medical expenses beyond the $50,000 limit
For these damages, you need a lawsuit. And for that lawsuit, you need a serious injury.
The Serious Injury Threshold: Insurance Law 5102(d)
This is the statute that controls access to the courts for every injured person in a New York car accident. The full definition is at NY Senate Insurance Law § 5102:
A “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
- A medically determined injury 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 90 days during the 180 days immediately following the occurrence
Categories 1 through 5 are relatively straightforward. If you broke a bone, you have a serious injury. Lost a limb? Serious injury. These are “per se” categories where the injury itself satisfies the threshold.
Categories 6 through 9 are where most of the litigation happens.
The Contested Categories
Permanent Consequential Limitation (Category 7)
This requires proof of a permanent limitation of use of a body organ or member that’s “consequential,” meaning medically significant. The Court of Appeals established the standard in Dufel v. Green, 84 N.Y.2d 795 (1995). The limitation must rest on objective medical evidence. It must involve a comparative determination of the degree or qualitative nature of the injury based on the normal function of the body part.
In practice, that means your doctor must quantify the limitation. A statement like “the patient has reduced range of motion in the cervical spine” isn’t enough. The doctor must compare your current function to normal function using objective measurements. Example: “Cervical flexion is 30 degrees, compared to a normal range of 50 degrees. A 40% deficit.”
Significant Limitation of Use (Category 8)
Similar to Category 7 but doesn’t require permanence. The limitation must be “significant,” meaning more than minor or mild. Courts look for:
- Objective test results (MRI findings, range-of-motion measurements, nerve conduction studies)
- Duration of treatment
- Whether the limitation affects the person’s ability to perform daily activities
- Whether the medical evidence is consistent over time
The Court of Appeals in Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345 (2002) held that an expert must designate, by percentage or otherwise, the plaintiff’s loss of range of motion to establish a “significant limitation.”
The 90/180-Day Rule (Category 9)
This is the catch-all for injuries that aren’t permanent but are genuinely disabling in the short term. To qualify, you must show:
- A medically determined injury (not just self-reported symptoms)
- That prevented you from performing “substantially all” of your usual daily activities
- For at least 90 of the 180 days following the accident
“Substantially all” is a high bar. Courts have held that a person who returned to work or performed modified duties may not qualify under this category, even if they were in significant pain. The 90 days don’t need to be consecutive. But they must fall within the first 180 days after the crash.
How Defense Lawyers Attack the Threshold
In nearly every car accident case in New York, the defense files a motion for summary judgment arguing that the plaintiff didn’t sustain a serious injury. It’s the most common dispositive motion in New York personal injury litigation.
The defense strategy typically follows this pattern:
Step 1: Independent medical examination (IME)
The insurance company sends you to their chosen doctor. That doctor examines you and frequently concludes you have full range of motion, no objective deficits, and a “resolved” condition.
Step 2: Motion for summary judgment
Using the IME report, the defense argues your injury doesn’t meet any category of 5102(d). If the court agrees, your case is dismissed before trial.
Step 3: Challenge gaps in treatment
If you stopped physical therapy for several months or had a gap between the accident and your first medical visit, the defense will argue the gap proves your injuries weren’t serious.
To survive this motion, you need:
- Contemporaneous medical records documenting objective findings (MRI abnormalities, positive clinical tests, quantified range-of-motion deficits)
- Consistent treatment without unexplained gaps
- Medical expert opinions that specifically address the statutory categories and provide objective measurements
- Proof that pre-existing conditions were aggravated (if applicable), with a causal link to the accident
The Court of Appeals made clear in Scheer v. Koubek (70 N.Y.2d 678, 1987) that subjective complaints of pain, standing alone, don’t satisfy the serious injury threshold. Objective proof is required.
Where the $50,000 Runs Out
The $50,000 PIP limit hasn’t been increased since 1977. Medical costs have risen dramatically since then. A single MRI in New York City can cost $1,000 to $3,000. Cervical spine surgery can exceed $100,000. A multi-day hospital stay after a serious crash can exhaust the entire $50,000 before discharge.
When PIP runs out, the injured person faces a gap. They still need medical treatment, but no-fault won’t pay for it. Health insurance may pick up some costs. Co-pays, deductibles, and out-of-network restrictions add more financial pressure.
That’s one reason the serious injury threshold matters so much. If your injuries qualify, you can pursue a lawsuit that recovers full medical expenses, complete lost wages, and compensation for pain and suffering. If they don’t, you’re limited to a benefit that was set nearly 50 years ago and hasn’t kept pace with medical inflation.
Optional Additional Coverage
New York offers two additional no-fault coverage options beyond basic PIP:
Additional PIP (APIP)
Extends first-party coverage above the $50,000 basic PIP limit. Available in increments up to $100,000. It’s optional coverage that must be purchased.
Optional Basic Economic Loss (OBEL)
Provides an additional $25,000 for basic economic loss. Unlike APIP, OBEL coverage can be directed to any category of economic loss: medical expenses, lost wages, or other reasonable expenses.
Many New Yorkers carry only the basic $50,000 PIP. They discover the gap only after a serious accident.
How New York Compares to Other No-Fault States
New York is one of 12 states (plus Washington, D.C.) operating under a no-fault auto insurance system. Each state sets its own threshold for when an injured person can step outside no-fault and file a lawsuit.
| State | PIP Minimum | Lawsuit Threshold |
|---|---|---|
| New York | $50,000 | Verbal: must meet “serious injury” definition |
| Michigan | Unlimited (pre-2020) | Verbal: “serious impairment of body function” |
| New Jersey | $15,000 | Verbal or monetary ($250,000 option) |
| Florida | $10,000 | Verbal: “permanent injury” |
| Pennsylvania | $5,000 | Verbal (limited tort) or full tort option |
New York’s threshold is among the most restrictive. The nine-category verbal threshold means every case turns on medical evidence and statutory interpretation, not a simple dollar amount.
The Motorcycle and Pedestrian Exception
Motorcycles aren’t covered by no-fault in New York. If you’re injured while riding a motorcycle, you can sue immediately without meeting the serious injury threshold. No-fault applies only to “covered persons” involved in accidents with “motor vehicles.” Motorcycles are excluded from the definition.
Pedestrians and cyclists injured by motor vehicles are covered by no-fault. They can claim PIP benefits through the at-fault vehicle’s policy or their own household auto policy. But to sue for pain and suffering, they still must meet the serious injury threshold.
What This Means for Your Case
If you were in a car accident in New York, no-fault provides immediate benefits for medical treatment and partial lost wages. Those benefits are available regardless of who caused the crash. File for them within 30 days.
The harder question is whether your injuries qualify for a full lawsuit. Fractures, surgical injuries, and permanent limitations typically clear the threshold. Soft tissue injuries, herniated discs, and other conditions that require MRI documentation and objective range-of-motion testing face more scrutiny.
What matters most: getting medical treatment promptly and continuously, and documenting your injuries with objective evidence from the start. Gaps in treatment and lack of objective findings are the two most common reasons courts dismiss cases at the threshold stage.
The statute was designed to filter out minor claims. It wasn’t designed to prevent genuinely injured people from recovering fair compensation. But navigating it requires understanding exactly what the law demands.
Frequently Asked Questions
What does New York no-fault insurance cover?
New York no-fault (PIP) insurance covers up to $50,000 in basic economic loss regardless of who caused the accident. This includes all necessary medical expenses, 80% of lost earnings up to $2,000 per month, up to $25 per day for other reasonable expenses like transportation to medical appointments, and a $2,000 death benefit. These benefits are paid by your own insurance company, not the at-fault driver’s insurer. You must file your no-fault application within 30 days of the accident.
What is the serious injury threshold in New York?
Under Insurance Law Section 5102(d), a serious injury is one that results in: death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ or member or 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 that prevents you from performing substantially all of your usual daily activities for at least 90 days within the 180 days following the accident. If your injuries do not fit one of these nine categories, you cannot sue for pain and suffering.
Can I sue for pain and suffering after a car accident in New York?
Only if your injuries meet the serious injury threshold under Insurance Law 5102(d). New York’s no-fault system bars lawsuits for non-economic damages (pain and suffering, emotional distress, loss of enjoyment of life) unless the injured person has a qualifying serious injury. Fractures, surgical injuries, and permanent limitations typically qualify. Soft tissue injuries like sprains and strains face closer scrutiny from courts and often require objective medical evidence such as MRI findings and quantified range-of-motion deficits to survive a defense motion for summary judgment.
