New York Enacts Significant Reforms to Automobile Liability and Damages Laws

Written by Briggs Johnson

The Governor of the State of New York just approved major liability and damages changes for automobile accident cases here in New York, which are effective as of May 26, 2026.  Governor Hochul initially proposed these changes to help fight against insurance fraud, and to make insurance premiums more affordable.  Please keep in mind that, like any other piece of legislation, the changes have elements of vagueness and ambiguous practical implications, which will be litigated.  We must all stay tuned for guidance and developments as they take place.  With all that being said, the major changes are as follows:

90/180 Category From the “Serious Injury” Threshold Law Is Eliminated

First, New York State has eliminated the  “90/180” category from the “serious injury” threshold law, which effectively allowed a plaintiff to recover for an injury or impairment that prevents them from performing their usual and customary activities of daily living for not less than 90 of the first 180 days following the accident. This category was rife with medical professionals stating plaintiff was disabled from work or home or bedridden for at least 90 of the first 180 days after the accident – for injuries that are not permanent – which are the antithesis of why the “serious injury” law was passed in the first place – to reduce frivolous lawsuits.

Modified Comparative Fault Now Applies To All Motor Vehicle Cases

Second, New York is a “pure comparative fault” jurisdiction, meaning that a plaintiff can be 99.9% at fault and still recover damages in New York.  Previously, there was no exception for auto cases, and that has now changed as follows: “In any action to recover damages for personal injury subject to [the No-Fault Law], the culpable conduct attributable to the claimant shall bar recovery if the culpable conduct attributable to the claimant is greater than the culpable conduct of the person against whom recovery is sought or is greater than the combined culpable conduct of the persons against whom recovery is sought.”  In theory, this would bar recovery for a plaintiff found to be 51% or more at fault in New York, but in practice, the implications are far more difficult to discern.  For example, the amendment does not explain how this is supposed to apply in accidents involving several vehicles, where a plaintiff could be assigned a percentage of fault greater than one defendant, but perhaps less than another.  In that scenario, our Courts will have to decide who plaintiff can recover from, and whether plaintiff or another defendant makes up the difference.

A New Pain And Suffering Cap On Damages Applies Against Plaintiffs Who Fail To Insure Their Vehicle, Who Drive While Impaired Or While Committing Or Fleeing The Commission Of A Felony, And The Cap Does Not Apply To Wrongful Death Actions

Third, there is a non-economic (past and future pain and suffering) damages cap against plaintiffs in certain situations.  The scenarios that put the cap in play are as follows: (1) if plaintiff was driving an uninsured vehicle that the driver was responsible for insuring (unless the lapse in insurance coverage was for fewer than 30 days); (2) if plaintiff was driving while impaired and convicted of that impairment, or operating during the commission of a felony, or immediate flight from one, and convicted of that felony; and (3) it only applies to claims of economic loss, and it does not apply in a wrongful death action.

“Liability” Regarding The Accrual Of Interest Does Not Begin Until Liability And A “Serious Injury” Have Both Been Established

Fourth, there was previously a split in the various appellate departments regarding when “liability” is established for the purposes of interest accrual.  The law now says that “liability” is not established until there is a finding of both negligence and serious injury, which means that – in theory at least, the Court will again decide the meaning of this change – interest should not accrue against a defendant until both liability and a serious injury have been established.

Defendants May Have To Wait Longer To Move For Summary Judgment On “Serious Injury” Grounds

Fifth, the amendment potentially alters the timing of summary judgment motions.  The amendment states that: “No liability for non-economic loss shall be fixed unless and until the trier of fact has determined the existence of a serious injury.”  In any action to recover non-economic loss pursuant to this article, the trier of fact shall not determine the question of whether an injury is a serious injury until the trier of fact has determined the party or parties at fault.”  Does this mean that a defendant cannot move for summary judgment seeking a dismissal of the complaint on “serious injury” grounds until after liability has been decided, or can they move sooner?  Of course, there will be arguments going in both directions from the opposite sides of the caption.