Important changes to New York automobile liability law were enacted effective May 26, 2026. These changes were initially proposed by Governor Hochul in an effort reduce the cost of automobile insurance in New York State, and after weeks of negotiations, these changes to automobile tort law were signed into law:
- Elimination of 90/180 as a “serious injury” threshold category under New York Insurance Law Section 5102(d) (“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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”).
- Imposes a narrow $100,000 pain-and-suffering cap for certain at-fault plaintiffs:
- Operating an uninsured vehicle that the driver was responsible for insuring (unless the lapse in insurance coverage was for fewer than 30 days);
- Operating 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.
- Applies only to claims of non-economic loss, and does not apply to wrongful death actions.
- Replaces pure comparative negligence with a modified comparative negligence rule in auto personal injury cases. New York follows a pure comparative negligence rule in negligence cases, meaning that a plaintiff’s recovery is to be reduced by his or her percentage of fault, but does not bar recovery entirely. There is now an exception for auto cases, but it is not as simple as providing that an auto plaintiff who is more than 50% at fault cannot recover. The statutory language is 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.”
How does this apply to multi-vehicle collisions, where plaintiff’s fault may be attributed to be greater than one tortfeasor, but less than another? Who can plaintiff recover from, and who absorbs the difference?
- Resolves a split in appellate departments on the issue of when “liability” is established for the purposes of interest accrual. It is now codified that “liability” is not established until there is a finding of both negligence and serious injury.
This act shall take effect immediately and shall be applicable to all actions and proceedings commenced on or after May 26, 2026.
The full text of these changes can be found under Bill No: A10008.
While well-intentioned, there are some ambiguities and uncertain pratical implications as drafted. Stay tuned for further developments and analysis.
By: V. Christopher Potenza, serves as Co-Chair of Hurwitz Fine’s Litigation Department and leads the transportation team. Brigette R. Whitmore, is a litigation associate in the firm’s Buffalo office focusing on automobile, trucking, and commercial transportation claims.
