Serious Injury Threshold (Insurance Law § 5102(d))

Insurance Law § 5102(d) defines serious injury as a personal injury that results in death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, or significant limitation of use of a body function or system. The date the action was commenced decides which definition applies. Law changed May 27, 2026: Insurance Law § 5102(d) no longer includes the 90/180-day category of a medically determined non-permanent injury for actions commenced on or after that date; actions commenced earlier are still judged under the nine-category definition that includes it.

Insurance Law § 5104(a) bars recovery for non-economic loss, meaning pain and suffering, in a negligence action between covered persons arising from use of a motor vehicle unless the plaintiff sustained a serious injury under Insurance Law § 5102(d). CPLR 3016(g) requires the complaint to plead it. Subjective complaints alone are not enough (Toure v Avis Rent A Car Systems, 98 NY2d 345 (2002)). Law changed May 27, 2026: under Insurance Law § 5104(a) the trier of fact may not decide whether an injury is serious until it has determined fault, for actions commenced on or after that date; earlier actions are not subject to that sequencing rule.