Key Takeaway
Appellate Term dissent in Vale v Floyd highlights critical errors in proving serious injury under Insurance Law 5102(d), including failure to establish normal range of motion baselines.
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Vale v Floyd, 2014 NY Slip Op 51241(U)(App. Term 2d Dept. 2014)
This was a 325(d) personal injury case in Civil Queens. These are perhaps the only cases that get tried in that court nowadays. The dissent is interesting because it pretty much discusses were the Plaintiff attorney went wrong in his direct examination of the expert, i.e., failing to compare normal rom with observed rom. It also states why the dissenting justice (and I believe she is correct) would have tossed the 90/180 claim. I am curious if the Appellate Division will take it up. Assuming the dissenting Justice’s review of the record is correct, then I have to imagine this case should go up.
“I agree with defendant’s contention that, based upon the evidence presented at trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that plaintiff had sustained a serious injury under the significant limitation of use or 90/180-day categories of Insurance Law § 5102 (d) as a result of the accident in question. In order to establish that she had suffered a “significant limitation of use of a body function or system, plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (see Laruffa v Yui Ming Lau, 32 AD3d 996 ). Plaintiff’s trial evidence was insufficient to establish, prima facie, that, after the accident, the limitation of the use of her spine and left shoulder was significant in degree (see DiCariano v County of Rockland, 111 AD3d 879 ). While plaintiff’s doctor testified that his testing revealed specified limitations in plaintiff’s range of motion in her spine and left shoulder, he was unable to establish what are considered normal ranges of motion with which to compare his measurements, thus leaving the jury, as finders of fact, to speculate as to the meaning of the doctor’s physical findings (see Djetoumani v Transit, Inc., 50 AD3d 944 ).
Plaintiff also failed to present evidence showing that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period (see Parise v New York City Tr. Auth., 94 AD3d 839 ). Rather, the testimony at trial established only that it had been harder for plaintiff to do certain activities with her family on the weekends and that she had experienced pain when making certain movements (see Lanzarone v Goldman, 80 AD3d 667 ).”
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Needless to say I have been trying a few of these soft tissue cases lately so it is something that I have some interest in – JT
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Legal Update (February 2026): Since this post’s publication in 2014, New York courts have continued to refine the evidentiary standards for establishing serious injury under Insurance Law § 5102(d), particularly regarding objective proof requirements for significant limitation of use and 90/180-day categories. Practitioners should verify current case law developments and any amendments to threshold injury standards that may affect expert testimony and medical evidence requirements in no-fault cases.
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.
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