Why Trust This Analysis
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.
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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.
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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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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.
