Serious Injury Threshold: 90/180 Days

By Melissa B. Pittelli

Under the New York Insurance Law, in order to sustain a personal injury lawsuit for pain and suffering, you must prove that you have a “serious injury.” Under the Insurance Law, there are nine (9) categories of serious injury. Eight (8) of the categories discuss specific injuries or limitations. If the first eight categories cannot be met, an injured party may still recover for suffering serious injuries under the 90-180-day category.

The 90/180-day category requires a demonstration that the party has a medically determined injury or impairment which prevents him or her from performing all of their usual and customary daily activities substantially for not less than 90 days during the 180 days immediately following the injury. The words “substantially all” mean that the person has been “curtailed from performing his usual activities to a great extent rather than some slight curtailment.”

Under this category, an injured party must be restricted in performing substantially all of his or her usual and customary daily activities for any 90-day period during the 180 days following the accident. The 90 days does not have to be consecutive. The most common way to meet the requirement is by showing disability from work for the 90/180 days.

A doctor must provide objective medical evidence of a medically determined injury or impairment of a non-permanent nature which prevents the injured party from performing all of the material acts which constituted their usual and customary daily activities for not less than 90 days out of the 180 days immediately following the accident. This will require disability notes from the treating physician.

To learn more about whether you meet this requirement of serious injury or any of the other eight categories, please contact Davis & Ferber.

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