My mother was hit by another driver in New York and is in pain: whose claim it is, and what 'serious injury' has to do with it

Attorney Answer

The claim belongs to your mother, not to you — and in New York two separate things have to be sorted out for her: the medical and wage benefits paid regardless of who caused the crash, and a claim against the other driver for pain and suffering, which she can bring only if her injury clears the state's serious-injury threshold.

Helping a hurt parent make calls is normal, and nothing stops you from gathering records or sitting in on a consultation. But the injured person holds the claim, signs the retainer and gives the authorizations, and an insurer will generally speak only with her or with someone she has authorized in writing.

New York routes motor vehicle injuries through no-fault first. Under Insurance Law § 5102, basic economic loss benefits — medical treatment and a portion of lost earnings, within statutory limits — are paid through the applicable automobile policy without regard to who caused the collision, and Insurance Law § 5106(a) sets when they are late: "(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained." Those benefits require a written application to the insurer within a short period after the crash, so making that claim comes before the fault question is resolved.

Pain and suffering is gated separately. Insurance Law § 5104(a) provides: "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." Whether your mother can sue the other driver for what she is going through therefore depends on a defined threshold, not on how much pain she reports.

Has a lawsuit been filed yet? That date — not the date of the crash — decides which version of the threshold applies to her. Part EE of chapter 58 of the Laws of 2026 applies to actions commenced on or after May 26, 2026, so an action filed now is measured against the current 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." Eight categories, proved with medical evidence rather than with a description of the pain. For an action commenced before May 26, 2026, the former § 5102(d) applied and carried a ninth category as well. Fault splits on the same date: in a motor vehicle action commenced on or after May 26, 2026, CPLR 1411(b) bars a claimant whose culpable conduct is greater than the defendant's or than all defendants' combined, and Insurance Law § 5104(d) caps non-economic recovery at $100,000 for certain at-fault injured people; in an action commenced before that date, CPLR 1411 (former text) governs and a claimant's share only reduces the award.

What you can do

1. Make sure your mother has been seen and keeps being seen — the medical record made in the first weeks is what a threshold question is decided on later.

2. Ask her insurer for the no-fault application form, submit it, and keep a dated copy along with every bill and receipt.

3. Collect the police report, the other driver's insurance information, and photographs of both vehicles and the scene.

4. Have her write down what she can no longer do — work, driving, lifting, sleeping — with dates, and tell her doctors the same things so it reaches the records.

5. Ask her to sign a short written authorization if she wants you to deal with the insurer for her.

6. Have her speak with a New York attorney before giving a recorded statement to the other driver's insurer or signing any release.

⏱ Time limits apply. CPLR 214(5) gives three years to commence an action to recover damages for a personal injury, measured from the date of the collision, and the section carries its own statutory exceptions. The no-fault application deadline is far shorter and also runs from the accident. If a vehicle or party turns out to belong to a public corporation, much shorter periods apply instead. Whether a deadline has run on her facts is not something to take from a general page — a New York attorney should key each period to her own accident date.