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This article is part of our ongoing 5102(d) issues coverage, with 129 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.
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)
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” 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.
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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.
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