As part of this year’s New York State Budget, the Senate passed a Bill (S9008-C/A10008-C), enacting a significant auto insurance and tort reform package.
There are several changes that will have an immediate impact on motor vehicle accident claims in New York. These changes are not retroactive, so they do not apply to cases already in suit. However, they will apply to all actions commenced on or after May 27, 2026. The most significant changes are summarized below, along with explanations of how the changes are likely to affect motor vehicle accident litigation going forward.
1. The 90/180 category of New York Insurance Law §5102(d) has been eliminated
A plaintiff in a motor vehicle accident case must establish that his or her injuries meet the “serious injury” threshold detailed in NY Insurance Law Sec. 5102(d) in order to recover.
Previously, a non-permanent injury or impairment that prevented an injured person from performing substantially all of their usual activities for at least 90 of the 180 days immediately following the injury qualified as a serious injury. This “90/180” category has been eliminated. The 90/180 days category was the most temporary of the serious injury categories because a plaintiff could still meet it even after fully recovering within six months of the accident. Going forward, a plaintiff seeking to satisfy the serious injury threshold will not be able to do so by demonstrating a temporary impairment, unless it meets one of the other serious injury threshold categories. (See Bill, Part EE, Section 1)
2. Recovery is now barred when the plaintiff is more than 50% at fault
In actions governed by New York Insurance Law Article 51 (motor vehicle accidents where no-fault applies), a plaintiff cannot recover if he or she is found more than 50% at fault for the accident. Previously, a plaintiff could still recover damages even if he or she was primarily responsible for the accident, with the recovery reduced by the plaintiff’s percentage of comparative fault. (N.Y. C.P.L.R. §1411). Going forward, if the defendant can prove the plaintiff’s fault exceeded 50%, it will act as a total bar to recovery. (See Bill, Part EE, Section 3)
3. Liability is determined before serious injury and damages
Motor vehicle accident trials will now proceed in stages. First, the plaintiff must prove he or she was 50% or less at fault. If that threshold is met, the trier of fact then decides whether the plaintiff sustained a serious injury. Only if both thresholds are satisfied will damages be considered and decided (N.Y. ISC. §5104(a)). As a practical matter, we expect that this change will result in a significant increase in bifurcated trials in motor vehicle accident cases. (See Bill, Part EE, Section 2)
4. $100,000 cap instituted on non-economic damages for specific at-fault reckless drivers
This is a less common situation. Except in cases involving wrongful death, there is now a $100,000 cap on non-economic damages (e.g., pain and suffering) for at-fault plaintiffs, who are not barred from recovery by N.Y. C.P.L.R. §1411, who fall under one of the following categories:
- Uninsured: Plaintiff was operating an uninsured motor vehicle that they were responsible for insuring (except if a lapse of insurance coverage occurs for a period less than thirty days);
- Impaired: Plaintiff was operating a motor vehicle while impaired at the time of the accident and convicted as such; or
- Felony Involvement: Plaintiff was operating a motor vehicle in the commission of a felony, or fleeing from one, at the time of the accident and was convicted of such felony. (NY ISC. §5104(d)).
(See Bill, Part EE, Section 2)
For the full text of the New York State Senate Bill see: New York State Assembly Enacted PDF
Conclusion
These tort reform changes will have a major, immediate impact on how motor vehicle accident claims are litigated in New York. And, even before litigation occurs, many motor vehicle accident claims will need to be evaluated differently, pre-suit.
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