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A Judge Can End a New York Car Case on the Medical Papers
A serious injury threshold motion asks a New York judge to dismiss a car accident claim for pain and suffering before any jury hears it.
The defense argues your injury fits none of the categories in Insurance Law § 5102(d), and the judge decides on sworn medical reports instead of live testimony.
Once the defense doctor's report makes that case, the burden moves to you to answer it with objective medical proof.
Most of these motions turn on whether your own doctors measured the limitation and connected it to the crash.
If the judge has already granted the motion, the notice of appeal is due 30 days after the order is served with notice of entry.
Losing the threshold ends the claim for pain and suffering, while economic loss beyond no-fault's limits and your no-fault benefits stay separate.
Call (888) 713-6653 with the motion papers or the order in hand, and we will tell you where the case stands at no cost.
- The judge decides the threshold on the papers, and the defense moves first with an affirmed report from a doctor it chose
- Your answer needs objective proof: a measured or described limitation, imaging tied to function, and a doctor who addresses causation
- A gap in treatment or an earlier injury to the same body part needs an explanation in the record
- A notice of appeal is due 30 days after the order is served with notice of entry
- Economic loss beyond no-fault's limits and your own no-fault benefits are outside the threshold
How a Serious Injury Motion Works Under CPLR 3212
The motion is a request for summary judgment under CPLR 3212, and it usually comes after the defense has had you examined by a doctor it chose. New York courts decide whether an injury meets the threshold as a question of law in the first instance, which is why a judge can end the claim without a jury.[1]
The defense moves first. It has to make a prima facie showing that you did not sustain a serious injury, usually with its examining physician's sworn report and your own medical records.[2] If that showing falls short, the motion is denied whatever your opposition says. If it succeeds, the burden shifts, and you have to raise a triable issue of fact with objective medical evidence.
Unless the court sets an earlier cutoff, the motion is due no later than 120 days after the note of issue is filed, so most threshold motions arrive at the end of discovery, after you have been deposed and examined.[3]
The motion is decided on paper, so the opposition has to put every piece of proof in front of the judge in sworn, admissible form.
The Defense IME Report and Motion Papers, and What Your Opposition Needs
A threshold motion arrives as a stack of papers, and each piece is aimed at a different part of your medical record.
| Defense Paper | What It Argues | What Your Opposition Needs |
|---|---|---|
| Notice of motion and attorney affirmation | Sets the return date and lists the categories the defense says you cannot meet. | Papers served on the schedule the motion or the court sets, answering every category the defense raised. |
| The defense doctor's affirmed report (the IME) | Normal range of motion, a resolved strain, no permanent limitation. | Your treating doctor's sworn report with findings compared to normal function, and an examination recent enough to speak to permanency. |
| A radiologist's review of your MRI | The findings are degenerative and were there before the crash. | A physician who addresses the degeneration directly and explains what changed after the collision. |
| Your deposition and bill of particulars | You went back to work, stopped treating, or hurt the same body part before. | A documented reason for any gap, and medical records that match what you testified to. |
| The 90/180-day argument | You were not kept from substantially all of your usual activities for 90 of the first 180 days. | Records of the restrictions during those months. This category is available only in a lawsuit filed before May 26, 2026. |
The standards the judge applies come from three Court of Appeals decisions, Toure, Perl, and Pommells, which our page on the three decisions behind nearly every disc-case threshold motion covers one by one. A herniation on an MRI does not carry the threshold by itself; it has to come with evidence of the limitation it causes and how long that limitation has lasted.
The judge reads the defense report and your doctors' reports side by side, and a case goes forward when yours describes the injury in measured, specific terms.
Lawsuits Filed Before and After May 26, 2026 Face Different Thresholds
New York's 2026 auto reform deleted the 90/180-day category from Insurance Law § 5102(d), and the change applies to actions commenced on or after May 26, 2026, the day it was signed.[4] A lawsuit filed before that date can still argue that the injury kept you from substantially all of your usual activities for 90 of the first 180 days. A lawsuit filed after it has eight categories to work with.
Trial courts have already read that date two ways. A Westchester County judge wrote in June 2026 that the 90/180 category no longer exists as of May 26, in a case filed in 2025.[5] A Broome County judge applied the reform's commenced-on-or-after language in September and kept the category for a case filed in 2024.[6] The statute's text supports the second reading, and an opposition in an older case should say so.
The reform also has the jury decide fault before it decides whether the injury is serious,[7] and CPLR § 1411(b) now bars recovery for a motor vehicle claimant found more at fault than the defendant. The summary judgment standard still comes from the Court of Appeals decisions the reform did not touch. Our page on the eight categories left after the 2026 reform walks through each one.
How Long Do You Have to Appeal a Threshold Dismissal in New York?
"The notice of appeal is due 30 days after the order is served with notice of entry."
An order granting the motion can be appealed to the Appellate Division. The notice of appeal has to be taken within 30 days after a copy of the order is served with written notice of its entry, with extra days added when that notice arrives by mail or overnight delivery.[8] The clock runs from that service, which can come days or weeks after the judge signs.
Two motions run on related clocks. Reargument asks the court to correct facts or law it overlooked or misapprehended in the papers already submitted, and it is due within 30 days after the same service; it cannot add facts that were never offered. Renewal rests on new facts that would change the result, or on a change in the law, and it has to give a reasonable justification for not presenting those facts the first time.[9]
Appeals from Queens, Brooklyn, and Staten Island go to the Appellate Division's Second Department, and appeals from Manhattan and the Bronx go to the First Department.
Once those 30 days pass without a notice of appeal, the order stands, and a claim dismissed on the merits generally cannot be revived by starting a new lawsuit.
What a Threshold Dismissal Leaves Standing in a Car Accident Case
Insurance Law § 5104(a) bars recovery for non-economic loss without a serious injury, and for basic economic loss, in a suit between covered persons.[7] Several claims sit outside those words.
- Economic loss beyond no-fault's limits. Basic economic loss is capped at $50,000, and lost earnings within it at $2,000 a month for three years. Wages and other economic loss above those limits can still be claimed against the at-fault driver.
- Your no-fault benefits. They are owed by the vehicle's insurer as the loss is incurred, with their own denial and arbitration rules, which our page on no-fault benefits after a carrier cuts them off walks through.
- A motorcyclist's claim. A motorcycle is not a motor vehicle under Article 51, and an appellate court has held that an injured rider is not a covered person who has to meet the threshold.[10] Our page on a New York rider's injury claim covers what that rider gives up in exchange.
If the motion is granted, find out which of these remain before deciding whether to appeal, because a surviving claim for lost wages changes what the case is still worth.
What a Second Lawyer Can Change After a Threshold Order Is Entered
You can ask another lawyer to look at the case at any point, including while the motion is pending or after the order is entered. That review starts with the papers: the defense motion, your opposition, the reply, and the order itself.
- File the notice of appeal inside the 30 days. It preserves the right to appeal while the merits are worked out.
- Renew with evidence that was missing. Only with a reasonable justification for not offering it on the original motion.
- Take over the file. The change is made with a consent to change attorney, signed by the outgoing lawyer and signed and acknowledged by you, filed with the clerk, or by court order.[11] The outgoing lawyer's charging lien stays attached to the claim and any recovery.[12]
Reargument is limited to what was already before the court, so new medical proof belongs on a motion to renew. A deadline that has passed without a notice of appeal does not reopen because the client changes lawyers.
The first thing we check on a threshold order is the date on the notice of entry. Then we read the judge's reasons, because they say which proof the court did not find, and that tells us whether an appeal or a renewal has anything to work with.
Don Worley has been admitted in New York since 2005, and the firm's working office is at 32-56 Steinway Street in Astoria, so a second look happens with a New York lawyer reading New York papers. Our page on changing injury lawyers in the middle of a case covers the switch itself.
What Your Treatment Record Should Show Before a Threshold Motion Is Filed
If the motion has not been filed yet, ordinary good care is still building the record.
Doctors chart to treat patients. A threshold motion reads the same chart for a different purpose, and most of our work on the opposition is closing the distance between the two.
Measured findings at the visits that matter. Range of motion recorded in degrees and compared with normal, or a doctor's specific description of what the body part can no longer do.
Imaging tied to symptoms. An MRI finding linked to the limitation it causes and to how long it has lasted.
A causation opinion that faces the history. If there was an earlier injury or a degenerative finding, the doctor addresses it in the report, so the defense is not the only one describing it.
A reason for any break in treatment. Written down when it happens. The Court of Appeals has accepted a doctor's conclusion that more therapy would only have been palliative as a reason to stop.
Each one is harder to supply after the defense has filed.