Key Takeaway
Pearson v Miles demonstrates how failing to properly allege the 90/180 day injury category in a bill of particulars can doom a no-fault threshold case.
The Importance of Proper Pleadings in No-Fault Threshold Cases
In New York’s no-fault insurance system, successfully establishing a personal injury claim that meets the “serious injury” threshold requires careful attention to procedural requirements. The case of Pearson v Miles serves as a stark reminder that even when evidence exists to support a claim, failing to properly plead your case in the initial paperwork can have devastating consequences.
Under New York Insurance Law Section 5102(d), plaintiffs must demonstrate they sustained injuries that fall into specific categories, including the “90/180 day” category - which requires showing a medically determined injury prevented the plaintiff from performing substantially all material acts of their usual activities for at least 90 days during the 180 days following the accident.
This case illustrates a common but critical error: having the evidence to support your claim but failing to properly assert it in your pleadings from the outset. As we’ve seen in other cases where plaintiffs have undermined their own cases, procedural missteps can be just as damaging as substantive weaknesses in the evidence.
Jason Tenenbaum’s Analysis:
Pearson v Miles, 2012 NY Slip Op 50423(U)(App. Term 2d Dept. 2012)
“The Civil Court found that, in opposition to the motion, plaintiff had raised a triable issue of fact as to whether he had sustained a medically determined injury which prevented him from performing [*2]substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident at issue. However, the record shows that plaintiff failed to allege injuries under this category in the verified bill of particulars. Consequently, defendant was not required to address plaintiff’s allegations of injuries in this regard”
Key Takeaway
The Pearson decision underscores a fundamental principle in no-fault litigation: you must properly plead what you intend to prove. Even when a plaintiff presents evidence sufficient to create a triable issue of fact regarding the 90/180 day injury category, failing to include this theory in the verified bill of particulars prevents the court from considering it. This procedural oversight can transform what might have been a viable case into a certain loss.
Legal Update (February 2026): Since this 2012 post, New York Insurance Law Section 5102(d) and related no-fault threshold requirements may have been subject to regulatory amendments, court rule modifications, or procedural updates affecting pleading standards and evidentiary requirements. Practitioners should verify current statutory provisions, recent appellate decisions interpreting threshold categories, and any updated procedural requirements for no-fault serious injury claims.
