New York's Serious Injury Threshold: What Hochul's 2026 Reforms Mean for Accident Victims
- Reza Yassi
- Mar 15
- 6 min read
What Is the Serious Injury Threshold in New York?
In New York, you cannot sue for pain and suffering after a car accident unless your injury qualifies as a "serious injury" under Insurance Law Section 5102(d). This is the serious injury threshold. It is the single biggest hurdle between you and full compensation after a crash.
New York is one of only a handful of states with this rule. The idea behind it is simple: minor fender-benders should be handled through no-fault insurance, not lawsuits. But the law also means that many people with real, painful injuries get shut out of the legal system entirely.
Right now, Governor Hochul is proposing changes to this threshold that could make it even harder for injured New Yorkers to recover compensation. If you have been in a car accident — or if you drive in New York at all — you need to understand what is happening.
How Does the Serious Injury Threshold Work Right Now?
Under the current law, your injury must fall into one of nine categories to qualify as a "serious injury." These include:
Death
Dismemberment — loss of a limb or body part
Significant disfigurement — visible scarring or deformity
Fracture — any broken bone
Loss of a fetus
Permanent loss of use of a body organ, member, function, or system
Permanent consequential limitation — a permanent restriction in a body organ or member
Significant limitation of use of a body function or system
Non-permanent injury preventing normal activities for 90 out of 180 days — known as the "90/180-day rule"
That last category — the 90/180-day rule — is the one most everyday accident victims rely on. If you were rear-ended on the BQE, missed three months of work, and could not pick up your children or cook dinner for your family, this is the category that protects your right to sue.
The New York Court of Appeals defined the standard for this category in Pommells v. Perez, 4 N.Y.3d 566 (2005). The court held that the plaintiff must show they were prevented from performing "substantially all" of their usual daily activities for at least 90 of the first 180 days after the accident.
What Changes Is Governor Hochul Proposing?
In January 2026, Governor Hochul included sweeping tort reform measures in her FY 2027 Executive Budget as part of her "Money in Your Pockets" campaign. According to the New York Trial Lawyers Association, these proposals would fundamentally change the rights of accident victims in the state. Here are the four major changes:
1. Eliminating the 90/180-Day Category
This is the biggest change. If this passes, the entire 90/180-day rule disappears. That means if your injury is not permanent, you may have no right to sue for pain and suffering — no matter how much time you missed from work or how badly the accident disrupted your life.
Think about what that means for a delivery driver in the Bronx who herniates a disc, misses 100 days of work, goes through months of physical therapy, and eventually recovers. Under the current law, that person can sue. Under the proposed change, they cannot.
2. Requiring Stricter "Objective" Medical Proof
The proposal would require injuries to be proven through "objective" medical evidence — essentially, imaging studies like MRIs, CT scans, and X-rays. The problem is that many real, debilitating injuries do not always show up on imaging. Soft tissue injuries, nerve damage, and chronic pain conditions can devastate your daily life while producing "normal" scan results.
3. Comparative Fault Bar at 51 Percent
New York currently follows a pure comparative negligence rule. That means even if you are 99 percent at fault for an accident, you can still recover 1 percent of your damages. The proposed reform would bar all non-economic damages (pain and suffering) if you are found more than 50 percent at fault.
In a city where pedestrians, cyclists, and drivers share chaotic streets, fault is rarely black and white. A pedestrian jaywalking in Midtown who gets struck by a speeding driver could be found 51 percent at fault — and lose all right to compensation for their pain and suffering under this proposal.
4. Changing Joint and Several Liability
The proposal would also limit joint and several liability for defendants found less than 50 percent at fault. In practical terms, this means that if two parties caused your accident but one has no insurance or assets, you may not be able to recover your full damages from the other party — even if they were partially responsible.
Who Benefits from These Changes?
Governor Hochul says these reforms will lower auto insurance premiums. New York drivers pay an average of about $4,000 per year for auto insurance — roughly $1,500 above the national average. The Governor argues that reducing litigation costs will bring those premiums down.
But here is the other side: insurance companies have been pushing for these exact changes for decades. The New York Trial Lawyers Association and consumer advocacy groups argue that there is no guarantee premiums will actually decrease. Insurance companies could simply pocket the savings as profit. Meanwhile, real people with real injuries lose their right to be compensated.
There is no provision in the proposed legislation requiring insurers to pass savings on to consumers. That is worth paying attention to.
What Should You Do If You Have Been in a Car Accident in New York?
Whether or not these reforms pass, the message for anyone involved in a car accident in New York City, Nassau County, or Suffolk County is the same:
Get medical attention immediately. Do not wait days or weeks. Go to the emergency room or an urgent care facility the same day. Early documentation is critical.
Get imaging studies early. Ask your doctor about MRIs, X-rays, or CT scans. If the proposed reforms pass, objective medical evidence will be even more important than it already is.
Document everything. Keep a daily log of your pain, your limitations, and what activities you cannot do. Save all medical bills, appointment records, and work absence documentation.
Do not assume your injury is not serious enough. Many people walk away from accidents thinking they are fine, only to develop worsening symptoms days or weeks later. Let a doctor and an attorney make that determination.
Do not accept a settlement without legal advice. Insurance adjusters will contact you quickly after an accident. Their goal is to close your claim for as little as possible. Talk to an attorney first.
How Do These Reforms Connect to New York's New Minimum Insurance Limits?
Starting January 1, 2026, New York raised its minimum auto liability limits to $35,000 per person and $70,000 per accident — the first increase in decades. On the surface, that looks like a win for accident victims. More coverage should mean more money available when you are hurt.
But the serious injury threshold reforms would take away with one hand what the increased limits give with the other. Higher policy limits do not help if you cannot get past the threshold to file a claim for pain and suffering in the first place.
Frequently Asked Questions
What qualifies as a serious injury in New York?
Under Insurance Law Section 5102(d), a serious injury includes death, dismemberment, fracture, significant disfigurement, permanent loss of use, permanent consequential limitation, significant limitation of use, loss of a fetus, or a non-permanent injury preventing normal activities for 90 out of 180 days. You must meet at least one of these categories to sue for pain and suffering after a car accident.
Will the proposed reforms actually lower my car insurance premiums?
There is no guarantee. The proposed legislation does not include any requirement that insurance companies pass savings on to consumers. While the Governor says reduced litigation costs will bring premiums down, insurance companies could retain the savings as profit. Historically, tort reforms in other states have not consistently led to premium reductions for drivers.
Can I still sue if I am partially at fault for a car accident in New York?
Under current law, yes. New York follows a pure comparative negligence rule, meaning you can recover damages even if you are mostly at fault — your award is simply reduced by your percentage of fault. However, the proposed reform would bar all pain and suffering damages if you are found more than 50 percent at fault.
What should I do right now to protect my rights after a car accident?
Seek immediate medical attention, get imaging studies like MRIs or X-rays as early as possible, document your daily pain and limitations, keep all medical records and bills, and consult a personal injury attorney before accepting any insurance settlement offer.
The Bottom Line
New York's serious injury threshold already makes it harder to recover compensation than in most other states. The proposed 2026 reforms would raise that bar even higher — eliminating the 90/180-day rule, demanding stricter medical proof, and blocking claims for anyone found more than half at fault. Whether you support lower insurance premiums or protecting accident victims' rights, these changes will affect every driver, pedestrian, and cyclist in the state.
If you or someone you know has been injured in a car accident in New York City, Nassau County, or Suffolk County, the team at Yassi Law PC is ready to help. Call us today at 646-992-2138 for a free consultation.
Written by Reza Yassi | LinkedIn
This article is for informational purposes only and does not constitute legal advice. Although I am an attorney, I am not your attorney, and reading this article does not create an attorney-client relationship. Laws vary by jurisdiction and may have changed since the publication of this article. For advice specific to your situation, consult a qualified attorney.
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