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This article is part of our ongoing 5102(d) issues coverage, with 89 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.
New York’s no-fault insurance system requires injured parties to meet specific thresholds to pursue personal injury claims beyond basic economic losses. One critical element in these cases involves demonstrating “objective signs” of continuing disability through medical evidence. The distinction between subjective complaints and objective findings can make or break a case.
The Appellate Division’s approach to categorizing certain medical tests as “objective as a matter of law” creates interesting dynamics in personal injury litigation. This classification affects how courts evaluate evidence and can significantly impact case outcomes, particularly when contemporaneous medical records support or contradict these findings.
Understanding which diagnostic tests courts consider objective versus subjective is crucial for both plaintiffs and defendants in personal injury cases. The legal system’s treatment of medical evidence continues to evolve, creating strategic considerations for attorneys on both sides.
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Harrity v Leone, 2012 NY Slip Op 01933 (4th Dept. 2012)
“Plaintiff, however, raised an issue of fact with respect to those two categories by submitting the affidavit of her treating physician, who outlined the objective medical evidence of plaintiff’s injury in those two categories, including a positive EMG test indicating acute bilateral radiculopathy at the L5 nerve root (see Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests (see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 , 2003 NY Slip Op 50065, *2 ; see also Navedo v Jaime, 32 AD3d 788, 788), and notations of muscle spasms and trigger points (see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819)”
I find it ever so amusing, if not a tad ingenuous, when the Appellate Divisions decide that certain “tests” are objective as a matter of law. It probably works well as a defense attorney in an IME doctor v. plaintiff hired gun case. It obviously is lethal to a defense attorney in a BI case. Still, you have to wonder.
Key Takeaway
Courts recognize specific diagnostic tests as “objective as a matter of law,” including EMG tests, straight leg tests, Patrick tests, and documentation of muscle spasms. This legal classification creates strategic advantages and challenges depending on which side of a personal injury case you represent, fundamentally affecting how medical evidence is evaluated in threshold determinations.
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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 2,353 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.
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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.
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