I was hit by a speeding car while on foot in New York — what has to be proved before I can recover for pain and suffering?

Attorney Answer

A driver who speeds into a person on foot can be responsible for that person's losses — but in New York, before you can recover anything for pain and suffering from a motor-vehicle collision, your injury has to meet a statutory definition called "serious injury." Almost nobody uses that phrase when they describe what happened to them, and it is the single thing that decides most of these claims.

The bar is set by Insurance Law § 5104(a):

Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.

A pedestrian struck by an insured vehicle is generally a covered person too, so this applies to you. "Non-economic loss" is pain and suffering. "Basic economic loss" is the medical bills and lost earnings that your no-fault first-party benefits are meant to pay instead — those benefits are payable as the loss is incurred and, under Insurance Law § 5106(a), are overdue if they are not paid within thirty days after you supply proof of the fact and amount of the loss.

Have you already started a lawsuit? That question, not the date of the crash, decides which version of the definition applies to you. Part EE of chapter 58 of the Laws of 2026 applies to actions commenced on or after May 26, 2026. If you have not filed yet, you would be filing under the current text of Insurance Law § 5102(d):

(d) "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; or significant limitation of use of a body function or system.

That is eight categories. For an action already on file before May 26, 2026, the former text governs instead, and it contained a ninth category covering a medically determined non-permanent injury that kept the person from substantially all of their usual daily activities for at least ninety of the first one hundred eighty days. That ninth category is not available to someone filing now.

The filing date also decides the fault rule. In a motor-vehicle personal-injury action commenced on or after May 26, 2026, CPLR 1411(b) bars recovery where the claimant's own culpable conduct is greater than that of the person sued, or greater than the combined culpable conduct of everyone sued — a 51% bar. In an action commenced before that date, CPLR 1411 (former text) applied pure comparative fault, and a share of blame only reduced the recovery. Insurance Law § 5104(d) also now caps non-economic recovery at $100,000 for certain at-fault injured drivers; it is written with exceptions and does not reach every claimant.

The driver's duty toward you is stated in Vehicle and Traffic Law § 1146(a):

Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.

What you can do

1. Gather every medical record from the collision forward, including imaging — the categories above turn on objective findings, not on how much it hurt.

2. Ask your treating doctors to describe limitations in function, measured and dated, rather than only pain.

3. Collect the police report, any camera or dash footage, and the names of witnesses to the speed.

4. Keep proof of every medical bill and every day of missed work you submitted to the no-fault carrier, along with the dates you submitted them.

5. Tell a New York attorney immediately whether any lawsuit has already been started on your behalf, and on what date.

⏱ Time limits apply. CPLR 214(5) gives three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215", measured from the date of the collision, and CPLR 208 can extend that period for someone under a disability when the claim accrued. Shorter deadlines apply if a public vehicle or a public corporation is involved. Because your collision is not recent, have a New York attorney review the dates for your own facts without delay — this page does not calculate them, and only an attorney who has your file can tell you what remains.