Why Trust This Analysis
This article is part of our ongoing 5102(d) issues coverage, with 90 published articles analyzing 5102(d) issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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.
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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 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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,600 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Serious Injury Threshold Under Insurance Law 5102(d)
New York Insurance Law 5102(d) defines the categories of serious injury that a plaintiff must prove to recover non-economic damages in a motor vehicle accident case. The statute lists specific categories — significant disfigurement, fracture, loss of a fetus, permanent consequential limitation, significant limitation of use, and the 90/180-day rule. Courts apply these categories strictly, and the sufficiency of medical evidence supporting a serious injury claim is one of the most frequently litigated issues in New York personal injury law.
90 published articles in 5102(d) issues
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a 5102(d) issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
