Hurt by a Drunk Driver in New York? No-Fault, the Lawsuit, and the 2026 Rules

A man walking home along Montauk Highway in Copiague is hit by a car that drifts onto the shoulder; the driver is arrested at the scene and charged with driving while intoxicated. By midnight his wife is in a hospital waiting room, reading about the no-fault intoxication exclusion on her phone and concluding the family gets nothing. She has it backwards.

The two mistakes I hear most often are that the no-fault intoxication exclusion leaves the victim with nothing, and that the 2026 tort reform capped what a drunk driving case is worth at $100,000. Neither is true. Both come from reading a rule written for the driver as if it were written for the person he hit.

Two September stories, both still allegations

On September 19, 2026, News 12 reported that a Suffolk County grand jury had indicted Stephen Aylward, 63, of West Islip, for manslaughter, vehicular manslaughter, driving while intoxicated, driving while ability impaired, and leaving the scene. Prosecutors allege that around 1:30 p.m. on June 25, 2026, near Exit RM 2W-E on the Robert Moses Causeway, his vehicle struck and killed Yusuf Gull, 27, of Bay Shore, a pedestrian on the shoulder; that the driver was “drunk and high”; and that he called police about 30 minutes later. The next court date is October 16, 2026. He has not been convicted.

A day later, News 12 reported that a 31-year-old bicyclist was critically injured around 10 p.m. on September 19, 2026, near the Nassau Expressway and Burnside Avenue in Inwood. Police say the driver, Michael Mayosky, was impaired by drugs; he faces multiple charges and was arraigned in First District Court in Hempstead. None of those charges has been proven.

The criminal cases will take months; the victims’ own clocks started at the scene, and the first runs 30 days.

No-fault pays first, and the exclusion is written for the driver

The wife in the waiting room wants to know who pays the hospital. The flow below is the order the money arrives in.

Insurance Law § 5103(a)(1) requires a vehicle’s insurer to pay first-party benefits to “persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.” A pedestrian or bicyclist is such a person; therefore, the benefits come from the insurer of the vehicle that hit them. The benefits reimburse “basic economic loss,” up to $50,000, and nothing for pain and suffering.

The exclusion is the part callers misread. Insurance Law § 5103(b) says an insurer “may exclude from coverage” a person who:

(2) Is injured as a result of operating a motor vehicle while in an intoxicated condition or while his ability to operate such vehicle is impaired by the use of a drug within the meaning of section eleven hundred ninety-two of the vehicle and traffic law …

Read the verb. The excluded person was injured as a result of “operating a motor vehicle while in an intoxicated condition.” Here, that is the driver. A pedestrian was not operating anything, and a bicyclist was not operating a motor vehicle. The no-fault regulation gives the injured person 30 days from the accident to send the application; a family member can sign it from the hospital.

The adjuster hears DWI, sees the word intoxicated, and sends the denial. You read the same word and decide that is the end of it. It is not. Send the application inside the 30 days, and when the denial comes, make the carrier put the paragraph and the person it names in writing. Then call. A denial aimed at the wrong person is where my work starts.

The lawsuit after May 26, 2026

Pain and suffering come from the lawsuit against the driver, and its conditions changed on May 26, 2026.

The threshold still applies, and fault is tried first

Insurance Law § 5104(a) allows “no right of recovery for non-economic loss, except in the case of a serious injury.” Insurance Law § 5102(d) now lists eight categories: death, dismemberment, significant disfigurement, a fracture, loss of a fetus, and the permanent loss of use, permanent consequential limitation and significant limitation categories; the 90/180-day category was deleted for actions commenced on or after May 26, 2026. The threshold does not care how drunk the driver was; our serious injury threshold guide covers the proof.

The amendment also added to the same subdivision: “the trier of fact shall not determine the question of whether an injury is a serious injury until the trier of fact has determined the party or parties at fault.” Consequently, the jury hears who caused the crash, and the intoxication evidence with it, before anyone argues about your MRI.

Comparative fault, with a new bar

CPLR § 1411(a) reduces damages in proportion to the claimant’s culpable conduct; new subdivision (b) bars recovery in an Article 51 action “if the culpable conduct attributable to the claimant is greater than the culpable conduct of the person against whom recovery is sought.” The driver’s insurer will argue that the pedestrian stood in the wrong place or the cyclist had no lights; that reduces a recovery and bars one only if the victim’s share is the greater. Our June 11, 2026 tort reform post covers the amendment.

Punitive damages, and who pays them

Ordinary negligence does not support punitive damages. Conduct showing wanton or reckless disregard for the safety of others can, and drunk driving is the usual example; each crash is decided on its facts, starting with the blood alcohol content and the speed. A guilty plea or conviction on the same facts can be used in the civil case to establish the intoxication; how much it settles depends on what was pleaded to, and a plea to a traffic infraction carries less than a plea to a crime. A punitive award is not paid by the driver’s liability insurer; it comes from the driver personally, and it is incumbent upon the victim’s lawyer to learn early whether the driver has anything to pay it with.

The cap people misread

New Insurance Law § 5104(d) limits non-economic loss to $100,000, other than in a death case, in “any action by or on behalf of an injured person who is at fault, is not barred from recovery by section fourteen hundred eleven of the civil practice law and rules, and was … (2) operating a motor vehicle while impaired at the time of the accident and convicted of such.” The capped person is the plaintiff: an impaired, at-fault, convicted driver suing over his own injuries. The subdivision says nothing about what the person he hit recovers from him.

The bar that served the driver

That bar may be a second defendant. General Obligations Law § 11-101(1), the Dram Shop Act, gives “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not,” a right of action against anyone who “by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person” caused or contributed to the intoxication, with “actual and exemplary damages.” Subdivision 2 keeps the action alive after a death.

The sale is unlawful when the bar serves a person who is already visibly intoxicated, and that is the fact these cases turn on. What a bar must put in the record to win summary judgment is before the Court of Appeals in Brown v Z-Live Inc., argued September 16, 2026, and pending; our Brown v Z-Live post explains what is at stake. A driver impaired by drugs alone, as alleged in the Inwood case, presents no Dram Shop claim; the statute is about liquor. Where there was liquor, the video overwrites itself; a preservation letter to every establishment the driver visited that day is among the first things I send.

The criminal case is not your case

You are the victim in the criminal case and probably its main witness, not a party, and the sentence is not your compensation.

Restitution

Penal Law § 60.27(1) directs the sentencing court to “consider restitution or reparation to the victim of the crime” and permits “reparation for the actual out-of-pocket loss caused thereby”; where the victim seeks it, the court “shall require” it “unless the interests of justice dictate otherwise.” Pain and suffering is not an out-of-pocket loss, and subdivision (5) caps the amount. Subdivision (6) then says restitution “shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment.” Consequently, restitution supplements the civil claim and does not replace it.

The plea

Vehicle and Traffic Law § 1192 defines the offenses: driving while ability impaired, subdivision (1); driving while intoxicated per se at .08 of one percent, subdivision (2); driving while intoxicated, subdivision (3); impairment by a drug, subdivision (4). Subdivision (10)(a) provides that where the charge alleges subdivision two, three, four or four-a, any guilty plea “must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section,” with an exception the District Attorney must justify on the record. Consequently, the plea usually lands inside the section, and it is an admission of impaired or intoxicated operation your civil case can use.

Your own clock

CPLR § 214(5) gives three years from the accident for “an action to recover damages for a personal injury.” The wrongful death and notice-of-claim clocks are shorter and on the chart below. A 90-day notice does not wait for an indictment, let alone a plea. File on your own clock.

If the driver fled or had no insurance

When a driver flees unidentified, or is uninsured, the Motor Vehicle Accident Indemnification Corporation (MVAIC) stands in, and its deadlines are conditions precedent; each is on the chart below. Insurance Law § 5218 then requires a court order permitting the hit-and-run action on a showing that “all reasonable efforts have been made to ascertain the identity” of the vehicle, owner and operator. Our hit-and-run post explains the application.

The policy on the car in your driveway can matter more than MVAIC. Insurance Law § 3420(f)(2)(A) requires every New York auto policy to provide, at the insured’s option, supplementary uninsured/underinsured motorists coverage “in an amount up to the bodily injury liability insurance limits of coverage provided under such policy.” For the wife of the man from Montauk Highway, that is the family car’s policy, and the notice to that carrier goes out in writing this week.

The first two weeks, and the first call

1. Get the police accident report number; the driver’s insurer is on it.
2. Send the no-fault application to the striking vehicle’s insurer, or the insurer of the car you were in.
3. Notify your own auto insurer in writing to preserve SUM coverage.
4. Give no recorded statement to the driver’s insurer.
5. Photograph the scene, the vehicle and your injuries; keep the bicycle and your clothing as they are.
6. Tell the District Attorney’s victim advocate that you seek restitution.

By the end of the second week the wife of the man from Montauk Highway has the report number, the no-fault application in the mail, a written notice to her own carrier, and nothing on record with the driver’s adjuster. Our Long Island drunk driving accident lawyer page explains how the case is built from that file.

Bring what you have of these to the first call:

• The police accident report number.
• The hospital discharge papers.
• The declarations page of any auto policy in your household.
• Every bill and insurer letter so far.
• For a hit-and-run, when you reported it to the police.

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If a drunk or drugged driver hit you or someone in your family on Long Island, contact our office or call (516) 750-0595 with the police accident report number; the 30-day no-fault clock started at the scene. Our bicycle accident attorney page covers how those cases are built.

Sources

• News 12, September 19, 2026 (Robert Moses Causeway) and News 12, September 20, 2026 (Inwood)
• Insurance Law § 5102, § 5103, § 5104, § 5208, § 5210, § 5218 and § 3420
• CPLR § 214 and CPLR § 1411
• General Obligations Law § 11-101, General Municipal Law § 50-e, Penal Law § 60.27 and Vehicle and Traffic Law § 1192