As previously discussed on our blog, if you want to claim damages beyond No-Fault, you may need to file a lawsuit. One of the elements that you will need to prove in your lawsuit is that you have met the serious injury threshold. New York Insurance Law Section 5102(d) defines serious injury in nine categories. One of the most common categories of serious injury is a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. This is commonly referred to as the “90/180 rule.”
In order to prevail on a 90/180 claim, Courts have defined “substantially all” to mean when a person has been prevented from performing his or her usual activities to a great extent, and not a slight curtailment. Therefore, if you are able to work, but cannot do your usually gardening, you probably will not meet the serious injury threshold. However, if your doctor has taken you out of work for at least three months out of the first 6 months since you been injured, you most likely will meet the serious injury threshold.
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If you have been injured in a car accident, it may be difficult to know if you meet the serious injury threshold.
Please call Bethany Nicoletti or Patricia Stegemann at (315) 471-1664 for a free consultation.