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 landscape of New York’s no-fault insurance law continues to evolve, particularly regarding how courts handle cases where pre-existing degenerative conditions complicate injury claims. Under Insurance Law § 5102(d), defendants often argue that a plaintiff’s injuries are merely pre-existing degenerative conditions rather than trauma-related injuries from the accident. The success of this defense strategy has varied across New York’s appellate departments, creating important precedential differences that practitioners must navigate.
In personal injury litigation, the burden shifts once defendants present evidence of degenerative findings on diagnostic imaging. Plaintiffs must then provide expert testimony that meaningfully addresses and rebuts these findings. The Second Department’s recent decision in Cavitolo v Broser demonstrates how courts evaluate whether plaintiffs have met this burden, particularly when their own medical records may work against them.
Jason Tenenbaum’s Analysis:
Cavitolo v Broser, 2018 NY Slip Op 05442 (2d Dept. 2018)
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“In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the magnetic resonance imaging of the plaintiff’s left shoulder, taken shortly after the accident, revealed only pre-existing degenerative conditions (see Franklin v Gareyua, 136 AD3d 464, 465-466, affd 29 NY3d 925, 926; _Chery v Jones,_62 AD3d 742, 742-743; Ciordia v Luchian, 54 AD3d 708, 708-709).”
Franklin is a First Department case. Chery and Ciordia are Second Department Pre-Pehrl cases from 2008 and 2009. I sense the “affd” is what caused the Second Department to rejoin the other three departments in requiring an affidavit to meaningfully refer or rebut the degeneration defense.
Key Takeaway
The Second Department has aligned with other appellate departments in requiring plaintiffs to provide expert affidavits that specifically address and rebut evidence of pre-existing degenerative conditions. When plaintiffs fail to adequately respond to degeneration defenses, courts will grant summary judgment dismissal, emphasizing the critical importance of thorough expert testimony in personal injury cases.
Legal Update (February 2026): Since this 2018 decision, New York courts have continued to develop precedent regarding degenerative conditions and summary judgment motions under Insurance Law § 5102(d), and appellate departments may have issued additional rulings that clarify or modify the standards for expert testimony in rebutting degenerative findings. Practitioners should verify current Second Department precedent and review any intervening decisions that may have refined the burden-shifting analysis for cases involving pre-existing degenerative conditions.
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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 2,600 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.
