Serious Injury Threshold in New York

Proving a Serious Injury Under New York’s No-Fault Threshold: Objective Proof, Treatment Gaps, and Degeneration

Recovery begins with the statutory bar. Under the no-fault scheme, "in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss," and "[n]o liability for non-economic loss shall be fixed unless and until the trier of fact has determined the existence of a serious injury" N.Y. Insurance Law § 5104. The gateway definition is exhaustive: the statute defines "[s]erious injury" as "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" N.Y. Insurance Law § 5102, together with a category for non-permanent injuries that disable the plaintiff for 90 of the first 180 days.

Whether an injury clears that threshold is, in the first instance, a question for the court, not the jury. Licari v. Elliott, 57 N.Y.2d 230 (N.Y. 1982) held that "[i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute," and that "[i]f it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of subdivision 4 of section 671 of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide." Construing the categories, the Court read "significant" to "mean something more than a minor limitation of use" — "a minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute" — and read "substantially all" in the 90/180-day category, which reaches "a medically determined injury or impairment 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment," to "mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment."

Objective medical proof is the evidentiary currency. Toure v. Avis Rent a Car Systems, Inc., 98 N.Y.2d 345 (N.Y. 2002) reiterated that "subjective complaints alone are not sufficient" and identified two routes to proving the extent of a limitation: "an expert’s designation of a numeric percentage of a plaintiff['s] loss of range of motion can be used to substantiate a claim of serious injury," and "[a]n expert’s qualitative assessment of a plaintiff['s] condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff['s] limitations to the normal function, purpose and use of the affected body organ, member, function or system." The Court of Appeals later refused to graft a timing rule onto that standard: Perl v. Meher, 18 N.Y.3d 208 (N.Y. 2011) held that "Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it," reasoning that while "an examination by a doctor years later cannot reliably connect the symptoms with the accident," "where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time," because "[i]njuries can become significantly more or less severe as time passes."

Gaps in treatment and degenerative findings operate as causation defenses even against objective proof — "[p]roof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury." Pommells v. Perez, 4 N.Y.3d 566 (N.Y. 2005) held that "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate." On treatment gaps, "[w]hile a cessation of treatment is not dispositive—the law surely does not require a record of needless treatment in order to survive summary judgment—a plaintiff who terminates therapeutic measures following the accident, while claiming “serious injury,” must offer some reasonable explanation for having done so." A medical explanation suffices: where the treating physician determined that further therapy would "be only palliative in nature," the cessation was "explained sufficiently to raise an issue of fact and survive summary judgment," since "[a] plaintiff need not incur the additional expense of consultation, treatment or therapy, merely to establish the seriousness or causal relation of his injury." And on degeneration, "with persuasive evidence that plaintiff['s] alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation." The rebuttal that suffices is illustrated by Perl v. Meher, 18 N.Y.3d 208 (N.Y. 2011): defendants offered a sworn radiologist’s report that the injuries were "degenerative in etiology and longstanding in nature, preexisting the accident," yet the treating physician’s opinion that the 82-year-old plaintiff "had not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in these findings" raised an issue of fact — "[w]e cannot say as a matter of law on this record, however, that such changes were the sole cause of Perl’s injuries."

Recent appellate practice applies these rules together. Moore v. Maley, 2025 NY Slip Op 05304 (N.Y. App. Div. 2025) restated the movant’s burden — "To prevail on a motion for summary judgment under Insurance Law § 5102(d), the defendant must prove with competent evidence that the plaintiff’s injuries are not ‘serious’ within the meaning of the statute or that the injuries were not caused by the accident" — and confirmed that once the defense identifies degeneration, "the burden shifts to the plaintiff to present evidence addressing causation," meaning the plaintiff must "explain why [his] current reported symptoms [are] not related to the preexisting conditions" or show how the accident aggravated them. There, conflicting expert reports, testimony of increased pain and diminished physical capabilities, and records showing new diagnoses and aggravated injuries defeated dismissal, and hospital confinement "for no less than 163 days" during the 180 days after the accident sustained the 90/180-day claim. The throughline from Licari to Moore is stable: the court polices the threshold as a matter of law; objective proof — numeric or qualitative — is indispensable; and once the defense points to a treatment gap or degenerative findings, the plaintiff’s physicians must supply a reasonable explanation or a record-grounded causation opinion, failing which the complaint is dismissed however genuine the pain.