Key Takeaway
Second Department clarifies that contemporaneous medical examinations aren't required to defeat summary judgment motions under Insurance Law § 5102(d).
Understanding Contemporaneous Medical Records in New York No-Fault Cases
In New York’s no-fault insurance system, one of the most contentious issues in threshold injury cases involves the requirement for contemporaneous medical examinations. This debate centers on whether plaintiffs must provide medical records from immediately after their accident to establish a serious injury under Insurance Law § 5102(d).
The split between New York’s appellate courts on this issue has created uncertainty for both plaintiffs and defendants. While the First Department tends to require contemporaneous examinations as part of a plaintiff’s proof, other departments have taken a more lenient approach. A recent Appellate Term decision provides valuable clarification on this procedural requirement.
Jason Tenenbaum’s Analysis:
Martinez v Keenan, 2019 NY Slip Op 50474(U)(App. Term 2d Dept. 2019)
” We note that, contrary to defendant’s argument, plaintiff was not required to submit a contemporaneous examination to raise a triable issue of fact (see Perl v Meher, 18 NY3d 208, 218 ).”
This is a token 5102(d) appeal from an order not dismissing the complaint. In the Second Department, these appeals usually lose. These threshold motions in the First Department are often dispositive as that Court takes a more technical approach to Plaintiff’s proof in opposition. One of the issues where there is a clear split is the contemporaneous examination. The First Department still requires it; The Second Department never comments on it but we can assume they do not. And the Appellate Term, which rarely gets to rule on these motions since a 325(d) order is usually well post notice of issue, get to explicitly state what we already knew.
Oh, and shout out to my friend Gary Novins. ” Zimmerman Law, P.C. (Gary R. Novins of counsel), for respondent. “
Key Takeaway
The Martinez decision confirms what practitioners in the Second Department have long understood: contemporaneous medical examinations are not mandatory to defeat summary judgment motions in threshold injury cases. This creates a clear procedural advantage for plaintiffs in the Second Department compared to the more stringent requirements in the First Department, where hospital records can sometimes work against a plaintiff’s case.
Legal Update (February 2026): Since this 2019 post, New York courts have continued to refine the standards for contemporaneous medical examination requirements in threshold injury cases under Insurance Law § 5102(d). Practitioners should verify current appellate division interpretations and any intervening Court of Appeals decisions that may have further clarified the split between departments on this procedural requirement.
