New York Serious Injury Threshold: The Nine Statutory Categories

By the FigureMyTax Editorial Team · How we calculate

In New York, there is no right to recover non-economic loss in a car accident case against another covered person except in the case of a serious injury: death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use, permanent consequential limitation of use, significant limitation of use, or 90 of the first 180 days unable to do substantially all usual activities.

The restriction

N.Y. Insurance Law 5104(a) says that in any action by a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in New York, there is no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss. Non-economic loss means pain and suffering and similar non-monetary detriment.

The nine categories

Section 5102(d) defines serious injury as a personal injury that results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a non-permanent nature that prevents you from performing substantially all of the material acts that constitute your usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury or impairment.

What is still recoverable

Basic economic loss cannot be recovered from another covered person in tort because your own insurer pays it, but section 5104(c) lets you plead and prove it where relevant to non-economic loss. Economic loss beyond basic economic loss is not within the bar as the statute is worded; we did not read the New York decisions on how courts treat it.

Fault and deadlines

Contributory negligence does not bar recovery but diminishes damages in proportion (CPLR 1411), and a personal injury action must be commenced within three years (CPLR 214). See New York comparative negligence and New York statute of limitations.

Using the calculator

The New York no-fault calculator tests each category and combines benefits with your claim. For how non-economic damages are valued, see New York pain and suffering and economic vs. non-economic damages.

This is general information, not legal advice, and the state comparisons above are illustrative, not an exhaustive survey. Confirm how New York's rules apply to your specific case with a licensed New York attorney.