Legal Explainer · 9 min read · 2026-05-18

New York’s serious injury
threshold §5102(d), explained.

When a car accident victim can sue for pain and suffering in New York — and when the statute keeps them out of court. A walkthrough of Insurance Law §5102(d), the nine categories, and what New York courts actually accept.

By Yoni Klestzick, Esq. & Joe Lieberman, Esq. Updated May 18, 2026 9 min read Legal Explainers

Doctor reviewing chest X-rays with patients — the medical evidence required to clear the §5102(d) threshold

The short answer

To sue an at-fault driver for pain and suffering in New York, the injured person must clear the serious injury threshold set by Insurance Law §5102(d). Most soft-tissue injuries — strains, sprains, generic “whiplash” — do not qualify on their own. Most fractures do. The case turns on objective medical evidence, not on the size of the crash or the cost of the repair bill.

Why the threshold exists

New York’s No-Fault system, enacted in 1973 and codified at Insurance Law Article 51, is a legislative bargain. Every driver gets guaranteed Personal Injury Protection (PIP) benefits — medical bills and 80% of lost wages up to $50,000, paid by their own auto carrier regardless of who caused the crash. In exchange, the legislature restricted access to courts for the kinds of minor soft-tissue cases that had clogged the docket in the 1960s.

The threshold is the gate. Soft-tissue claims that can’t be objectively documented stay in the No-Fault system. Cases involving fractures, permanent injuries, and serious functional limitations go to the tort system. Practically, that means insurers spend enormous effort trying to keep claimants below the threshold, and personal injury lawyers spend enormous effort proving they’re above it.

The nine statutory categories

§5102(d) lists nine categories. Plaintiffs need to qualify under just one to clear the threshold. In order of how often they appear in litigation:

Fracture — any bone fracture, no matter how minor. The most plaintiff-favorable category. A hairline fracture in a finger qualifies.
Significant disfigurement — scars, burns, lacerations. Judged by a “reasonable person” standard.
Permanent loss of use of a body organ, member, function, or system — total, not partial, loss.
Permanent consequential limitation of use of a body organ or member — partial loss that is permanent and significant.
Significant limitation of use of a body function or system — non-permanent but substantial restriction.
90-of-180-days — medically determined non-permanent injury preventing substantially all usual daily activities for 90 of the first 180 days.
Death — wrongful death claims have their own statute (EPTL §5-4.1) but pass §5102(d) automatically.
Dismemberment — amputation. Rare; passes automatically.
Loss of a fetus — also passes automatically.

Categories 1, 7, 8, and 9 are objective and rarely contested. The litigation almost always happens in categories 3, 4, 5, and 6 — and that’s where the case law has built up over fifty years.

The objective-medical-evidence requirement

Under controlling New York case law, the modern rule requires objective medical evidence to clear the threshold under categories 3, 4, or 5 — not just subjective pain reports. That generally means:

Imaging: MRI, CT, or X-ray showing a herniation, fracture, or structural abnormality.
Quantified range-of-motion testing: numerical degrees of restriction compared to normal, documented by a treating physician using a goniometer or inclinometer.
Physician affidavit linking the injury to the accident and explaining its permanency or significance.
Consistent treatment: a documented course of medical care from injury through the date of the affidavit.

Subjective complaints (“my back hurts,” “I can’t sleep”) are not enough. A plaintiff who only saw the ER, took a week off work, and stopped treating after the No-Fault carrier cut off benefits will lose a threshold motion every time.

The “90 of 180” category in detail

Category 6 — the 90-of-180-days rule — is the most fact-intensive. It requires medically determined evidence that the injury prevented the plaintiff from performing substantially all of the material acts of their usual daily activities for at least 90 of the 180 days immediately after the accident.

“Substantially all” doesn’t mean every single activity — but it means more than “reduced” or “limited.” Courts have held that being out of work for 90 days isn’t automatically enough if the plaintiff continued to drive, shop, and care for themselves. Conversely, a plaintiff who was demonstrably bedridden, or who switched to entirely different (lighter) work, often qualifies. The plaintiff’s doctor must say so — in writing, with reference to the specific limitations.

What insurers do to defeat the threshold

The IME (“Independent” Medical Exam)

Defense carriers send claimants to a doctor of their choosing — euphemistically called an Independent Medical Examiner — who performs a 15-minute exam and writes a report finding “no objective evidence of limitation” or “resolved soft-tissue strain.” These reports are often template-generated and use the same boilerplate language across hundreds of cases. They are nevertheless enough to defeat a threshold motion if the plaintiff hasn’t built a strong counter-record.

The “gap in treatment” defense

If a plaintiff stops treatment for a few months, the carrier will argue that gap proves the injury “resolved.” Even when treatment stopped only because the No-Fault carrier denied further benefits, courts have credited the gap-in-treatment defense unless the plaintiff submits evidence explaining the gap. The fix is simple: continue treatment, document every visit, and if benefits are cut off, switch to private health insurance — but do not stop.

Surveillance video

Insurers routinely surveil claimants — outside their home, at gyms, at family events — looking for footage of activities that contradict claimed limitations. Plaintiffs who tell their doctor they can’t lift more than 10 pounds and are then filmed carrying groceries face devastating cross-examination.

Common scenarios — what passes, what fails

Generalizing across hundreds of cases:

Whiplash without imaging: typically fails. Strain or sprain is the diagnosis, no fracture, no MRI findings, no quantified ROM. The carrier wins on summary judgment.
Whiplash with positive cervical MRI + restricted ROM + sustained treatment: typically passes. The herniation is objective, the ROM is quantified, the treatment is consistent.
Any bone fracture: passes automatically as a statutory category. Even a small fracture in the orbital bone or finger.
Mild TBI / concussion: increasingly winning ground. Neuropsychological testing, balance/vestibular findings, and cognitive deficits documented by a neurologist can satisfy the “permanent consequential limitation” category.
Lumbar herniation: usually passes when supported by MRI and treatment, but the defense will argue the herniation is degenerative (age-related) rather than traumatic.
Shoulder labrum / rotator cuff tear: passes when supported by MRI and surgical intervention.
Knee meniscus tear: same — passes with imaging and a documented treatment plan.

The relationship between the threshold and No-Fault PIP

It’s important to understand that these are two separate systems:

No-Fault PIP (§5103) pays your medical bills and lost wages regardless of fault or threshold. You file the NF-2 form within 30 days, treat with providers who accept No-Fault, and the carrier pays up to $50,000 in benefits.
The §5102(d) threshold only gates your right to sue the at-fault driver for pain and suffering — non-economic damages. It has nothing to do with No-Fault benefits.

A claimant whose injuries don’t meet the threshold still gets PIP. They just can’t get pain-and-suffering damages on top. Conversely, a claimant who clears the threshold can recover both — PIP plus a full tort recovery.

What clients should do — in plain language

Get medical attention the same day, even if you feel fine. Delays let insurers argue the injury came later.
Document objectively. Ask for imaging when symptoms warrant it. Ask your doctor to record range-of-motion in degrees.
Don’t gap treatment. If No-Fault denies, switch to private insurance. Continuous care is the difference between winning and losing.
Don’t give recorded statements to the at-fault driver’s insurer before talking to an attorney.
Don’t post on social media. Surveillance starts the day a claim is filed.
Talk to a personal injury attorney within the first 90 days, when the medical record is still being built.

Practice areas governed by §5102(d)

The threshold applies to nearly every motor-vehicle injury claim against an at-fault driver:

Car accidents — primary application of the statute.
Truck accidents — same threshold applies to occupants of cars hit by commercial trucks.
Pedestrian accidents — pedestrians struck by motor vehicles must clear the threshold to sue the driver.

Two important exceptions: motorcyclists are excluded from No-Fault under §5103(a)(1), and therefore the §5102(d) threshold does not apply to them — they can sue for all damages, including soft-tissue. And in wrongful death cases, death itself satisfies the threshold by statute.

Threshold-Fight Representation

Serious-injury cases often turn on what happens in the first 90 days — when MRIs are ordered, range-of-motion is documented, and treatment is sustained. A free consultation is the best way to discuss how the §5102(d) analysis may apply to your circumstances.

See car-accident representation →

Questions on
this topic.

Common follow-up questions from clients and prospective clients reading this explainer.

All 45 firm FAQs →

What is the serious injury threshold under NY law?

The serious injury threshold under Insurance Law §5102(d) is the statutory gate a car accident victim must clear before they can sue the at-fault driver for pain and suffering. Nine categories qualify: death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use, permanent consequential limitation, significant limitation of use, or a non-permanent injury preventing usual activities for 90 of 180 days.

Does whiplash meet the §5102(d) threshold?

Usually not on its own. A diagnosis of cervical strain or sprain, without imaging findings or quantified range-of-motion restrictions, will lose a threshold motion. But whiplash with a positive cervical MRI showing herniation, sustained treatment, and a physician affidavit linking the injury to the accident often qualifies under the “significant limitation of use” category.

Is a herniated disc a “serious injury”?

Generally yes, when supported by objective medical evidence. A herniated disc shown on MRI, combined with quantified range-of-motion restrictions, consistent treatment, and a physician affidavit, typically satisfies the “significant limitation of use” or “permanent consequential limitation” categories. The defense often argues the herniation is degenerative (age-related) rather than traumatic — that fight is won with the right radiologist and a clean pre-accident medical history.

What does “90 out of 180 days” mean?

The 90-of-180-days category requires medically determined evidence that the injury prevented the claimant from performing substantially all of their usual and customary daily activities for at least 90 days during the 180 days immediately after the accident. “Substantially all” means more than just “reduced” — it requires a meaningful prevention of normal activities, and the doctor must say so in writing.

Does the threshold apply to motorcycle accidents?

No. Motorcyclists are expressly excluded from No-Fault under Insurance Law §5103(a)(1). Because No-Fault doesn’t apply, the §5102(d) threshold doesn’t either. A motorcyclist can sue the at-fault driver for all damages — including pain and suffering for soft-tissue injuries that would be barred in a car case.

Does the threshold apply to pedestrians?

Yes. A pedestrian struck by a motor vehicle must clear §5102(d) to sue the driver for pain and suffering — and the pedestrian is also entitled to No-Fault PIP from the at-fault vehicle’s policy under §5103(a), even if the pedestrian doesn’t own a car.