The New York Serious Injury Threshold After the 2026 Amendment

The serious-injury threshold after the 2026 amendment

Authority: Insurance Law § 5102(d), as amended effective May 26, 2026.

Between covered persons, you cannot recover non-economic damages — pain and suffering — for a motor-vehicle injury unless the injury is a "serious injury" as the statute defines it. This threshold is the single most litigated issue in New York auto practice, and the 2026 amendment narrowed it.

As the statute now reads, "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; or significant limitation of use of a body function or system.

That is eight categories. The ninth — the 90/180-day category — was deleted. Before the amendment a claimant with a genuinely disabling but ultimately non-permanent injury could clear the threshold by proving it kept them from substantially all of their usual activities for 90 of the first 180 days. That path no longer exists.

The practical consequence is that a soft-tissue case now has to be built as a "limitation of use" case from the first medical visit. Contemporaneous objective findings — quantified range-of-motion deficits measured against normal, positive imaging correlated to the complaint, and a treating physician’s opinion on permanence or significance — are what carry the threshold. Gaps in treatment, which defense experts have always attacked, now matter more, because there is no longer an alternative category that forgives a thin permanence record.

Death

A motor-vehicle injury resulting in death satisfies the threshold.

Dismemberment

Loss of a limb or body part.

Significant disfigurement

Judged by whether a reasonable person viewing the plaintiff would regard the condition as unattractive, objectionable, or the subject of pity or scorn.

A fracture

Any fracture qualifies, which is why imaging that establishes even a minor fracture can be decisive.

Loss of a fetus

A category in its own right.

Permanent loss of use of a body organ, member, function or system

Construed strictly: New York courts require a total loss of use, not a partial one.

Permanent consequential limitation of use of a body organ or member

Requires both permanence and that the limitation be consequential — more than mild, minor or slight.

Significant limitation of use of a body function or system

Does not require permanence, but does require that the limitation be significant and objectively established. This is where most surviving soft-tissue claims are now litigated.

What changed in New York in May 2026

Authority: L. 2026, FY2027 State budget (S.9008-C / A.10008-C, Part EE); Insurance Law §§ 5102(d), 5104; CPLR 1411. Effective May 26, 2026.

New York enacted the most consequential change to motor-vehicle injury litigation in a generation as part of the FY2027 State budget, signed in late May 2026. The amendments took effect May 26, 2026.

The trigger is the date the lawsuit is commenced, not the date of the crash. An older accident filed after the effective date is governed by the new rules. This single detail has decided whether a claim is viable, and it is the first thing to check on any file opened since mid-2026.

Two of the four changes make soft-tissue cases materially harder. The other two change the arithmetic of recovery.

The 90/180-day serious-injury category was deleted

This is the change that hits soft-tissue injuries hardest. Insurance Law § 5102(d) previously let a plaintiff clear the serious-injury threshold by showing a medically determined, non-permanent injury that prevented substantially all of their usual daily activities for at least 90 of the 180 days after the crash. That category is gone. A sprain, strain, disc bulge, whiplash or concussion that fully resolves no longer has that route to the threshold, and must instead fit one of the remaining categories — in practice, "permanent consequential limitation of use" or "significant limitation of use", both of which demand objective medical proof and quantified range-of-motion findings rather than a narrative of lost months.

Fault is now decided before serious injury

Under amended Insurance Law § 5104(a) the trier of fact determines fault first, and only then whether the injury is serious. Liability for non-economic loss requires both. A negligence finding standing alone also no longer starts prejudgment interest running under CPLR 5002, which removes a settlement pressure plaintiffs previously had after winning liability.

Motor-vehicle cases moved to modified comparative fault

New CPLR 1411(b) bars recovery entirely in any personal-injury action subject to Insurance Law article 51 where the claimant’s culpable conduct is greater than the defendant’s, or greater than the combined culpable conduct of all defendants sued. Because the test is "greater than", a claimant found exactly 50% at fault still recovers, reduced by half. A claimant found 51% at fault recovers nothing. Wrongful-death actions remain under pure comparative fault.

A $100,000 non-economic cap for certain at-fault claimants

Insurance Law § 5104(d) caps non-economic damages at $100,000 — even for a serious injury — where the claimant bears some fault, is not altogether barred under CPLR 1411, and was either operating a vehicle they were required to insure without coverage (a lapse under thirty days does not count), operating while impaired and convicted of it, or operating in the commission of or flight from a felony and convicted of that felony. It does not apply to actions for injuries resulting in death.