Key Takeaway
In Fludd v Pena, a plaintiff's inability to recall which shoulder was injured and failure to complain about shoulder pain at IME severely damaged their case.
This article is part of our ongoing 5102(d) issues coverage, with 251 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.
Personal injury cases under New York’s no-fault insurance law require plaintiffs to demonstrate their injuries with precision and consistency. The 5102(d) threshold requires careful documentation and clear presentation of medical evidence. However, what happens when a plaintiff’s own testimony undermines their case?
The First Department’s decision in Fludd v Pena illustrates how memory lapses and inconsistent complaints during medical examinations can be fatal to a plaintiff’s claims. This case demonstrates a crucial principle: defendants may not need to provide medical evidence regarding body parts that plaintiffs fail to properly identify or complain about during examinations. This ruling has significant implications for how personal injury cases are prepared and presented.
Understanding these evidentiary requirements is essential, as inconsistencies in testimony can derail even cases with legitimate medical documentation. This decision shows how procedural missteps can impact the substantive outcome of no-fault insurance disputes.
Jason Tenenbaum’s Analysis:
Fludd v Pena, 2014 NY Slip Op 07747 (1st Dept. 2014)
This 5102(d) case is interesting because it stands for the proposition that the failure to make complaints of pain at the IME of the affected body parts will negate the requirement to examine that body part. I am going to say that is the case even when there is record evidence of pain at that body part.
“Defendants were not required to present medical evidence with respect to plaintiff’s alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured (see Thomas v City of New York, 99 AD3d 580, 582 , lv denied 22 NY3d 857 ). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants’ expert.”
Interesting…
Key Takeaway
This case establishes that defendants may avoid the burden of providing medical evidence for specific body parts when plaintiffs fail to consistently identify their injuries or complain about them during independent medical examinations. Even with documented medical evidence, procedural failures in testimony and examination can undermine a plaintiff’s case, highlighting the critical importance of preparation and consistency throughout the litigation process.
Related Articles
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- How hospital records can undermine a plaintiff’s threshold motion
- Requirements for establishing prima facie showing of lack of serious injury
- New York’s serious injury threshold compared to medical necessity standards
- Personal Injury
Legal Update (February 2026): Since this 2014 decision, New York’s Insurance Regulation 68 has undergone multiple amendments affecting IME protocols and documentation requirements under Insurance Law § 5102(d). Additionally, appellate decisions in the intervening years may have refined the standards for medical testimony consistency and the burden of proof regarding body part identification in no-fault cases. Practitioners should verify current regulatory provisions and recent case law developments when advising clients on IME preparation and medical evidence presentation requirements.
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 2,353 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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Frequently Asked Questions
What is the serious injury threshold under Insurance Law §5102(d)?
New York Insurance Law §5102(d) defines 'serious injury' as a personal injury that results in death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, or a medically determined injury that prevents the person from performing substantially all of their daily activities for at least 90 of the first 180 days following the accident.
Why does the serious injury threshold matter?
In New York, you cannot sue for pain and suffering damages in a motor vehicle accident case unless your injuries meet the serious injury threshold. This is a critical hurdle in every car accident lawsuit. Insurance companies aggressively challenge whether plaintiffs meet this threshold, often relying on IME doctors who find no objective limitations. Successfully establishing a serious injury requires detailed medical evidence, including quantified range-of-motion findings and correlation to the accident.
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
