On April 16, 2010, a bill was introduced in the New York State Senate and Assembly to amend the definition of "serious injury" and to determine the sufficiency of evidence with respect to issues relating to serious injury. The bill would significantly change Insurance Law §5102(d) to include the following:

• A partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage
• Injury to any part of the spinal column that results in injury to an intervertebral disc
• Impingement of the spinal cord, spinal canal, nerve, tendon or muscle
• Permanent total or partial loss of use of a body organ, member, function or system
• A surgical procedure to any injured part of the body
• Any other permanent consequential limitation of use of a body organ, member, function or system

The definition of serious injury would retain the existing injuries such as a fracture, significant disfigurement, death, dismemberment and the "90/180 limitation". The bill also notes that a finding of a serious injury on any of the above-enumerated categories shall be sufficient basis for an award of "past and/or future damages".

The bill also adds Insurance Law §5102(a), which mandates that questions relative to whether the plaintiff has a serious injury and whether such an injury is caused by the accident must be determined by a trier of fact. As such, the courts will no longer entertain motions for summary judgment with respect to the serious injury threshold.

The sponsors of this bill justified the significant changes to the serious injury threshold by stating that the dismissal of personal injury cases by the courts deprives New York's citizens of their constitutional right to a trial by jury. According to the sponsors of the bill, the judicial interpretation of this statute has produced overwhelming obstacles never intended by the Legislature and has clogged the courts with threshold motions which monopolize judicial resources. Furthermore, the sponsors noted that judiciary has seemingly usurped the authority of the Legislature by unilaterally imposing requirements for proof of serious injury including proof of contemporaneous, quantitative testing or a requirement for "non-stop medical treatment" for all victims of vehicular negligence.

If this bill is passed into law, its consequences will be significant. The definition of a "serious injury" has been broadened to the point where the "serious injury" threshold is virtually eliminated. The requirement that limitations or injuries must be consequential or significant has been virtually eliminated in favor of potential minor injuries to nerves, tendons, ligaments, muscles or cartilage and virtually any injury that results in impingement of a spinal cord, spinal canal, nerve, tendon or muscle. Furthermore, an injury that requires the most minor surgical procedure will also qualify as a "serious injury". In conclusion, while this proposed law would eliminate "serious injury" threshold motions thereby relieving the courts of the burden relative to deciding the motions, the courts will likely see a significant increase in the number of personal injury cases that are commenced as well as a significant increase in the number of trials that may burden the courts in the future. We will certainly track the progress of this particular bill. As of April 16, 2010, the bill has been submitted to the Insurance Committee in both the Senate and the Assembly. We will update you accordingly. If you have any questions, do not hesitate to contact me at 716-852-3600 or by email at tkawalec@cheluslaw.com.


Prepared by : Thomas P. Kawalec, Esq.