Pain and Suffering After a Car Accident in New York: How It Is Valued
This page cannot give you a dollar figure for pain and suffering; it explains the legal rules that decide whether it can be recovered at all. First, New York law sets a threshold: in a lawsuit between covered persons over a motor vehicle accident in New York, pain and suffering can be recovered only for a serious injury. William Mattar, P.C. focuses on motor vehicle accident cases and offers a free case evaluation at (844) 444-4444.
Key facts
- Between covered persons, non-economic loss from a New York motor vehicle accident can be recovered only for a serious injury.
- For actions commenced on or after May 26, 2026, the 90/180-day category is no longer part of the serious injury definition.
- For actions commenced on or after May 26, 2026, a $100,000 cap on non-economic loss applies to certain at-fault injured people, except in an action for injuries resulting in death.
| Image for Blog PostImage to use (Envato). Envato Elements search for injured person resting at home Pick a photo with no recognizable people or readable license plates.Alt text to set on the image: Person resting at home while recovering from an injury |
When can you recover pain and suffering after a New York car accident?
Insurance Law 5102(c) defines non-economic loss as "pain and suffering and similar non-monetary detriment." Under Insurance Law 5104(a), in a lawsuit by or for a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in New York, there is no right to recover non-economic loss except in the case of a serious injury. Covered persons include owners, operators and occupants of insured motor vehicles and pedestrians injured through their use or operation, among others.
Under Insurance Law 5102(d), a serious injury is a personal injury that 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.
The Department of Financial Services states that the 2026 amendments deleted the category for a non-permanent injury that prevents substantially all usual and customary daily activities for at least 90 of the 180 days after the injury, for actions and proceedings commenced on or after May 26, 2026. In an action to recover non-economic loss under Article 51 of the Insurance Law, the trier of fact must now decide who was at fault before deciding whether an injury is a serious injury.
How does your share of fault affect what you can recover?
Under the general rule in CPLR 1411(a), a claimant's culpable conduct does not bar recovery; damages are reduced in proportion to the claimant's share of the culpable conduct that caused them. CPLR 1411(b) makes an exception for personal injury actions subject to Article 51 of the Insurance Law commenced on or after May 26, 2026: your culpable conduct bars recovery if it is greater than that of the person you are suing, or the combined culpable conduct of the people you are suing.
When is pain and suffering capped at $100,000?
For actions commenced on or after May 26, 2026, Insurance Law 5104(d) limits recovery for non-economic loss to $100,000 in a serious injury case brought by or for an injured person who is at fault, is not barred by CPLR 1411, and was:
- operating an uninsured motor vehicle they were responsible for insuring under Article 6 of the Vehicle and Traffic Law, unless the lapse in coverage was less than thirty days;
- operating a motor vehicle while impaired at the time of the accident, and convicted of that; or
- operating a motor vehicle in the commission of a felony, or immediate flight from one, at the time of the accident, and convicted of that felony.
The cap does not apply in an action for injuries resulting in death.
What affects how pain and suffering is valued?
Questions a lawyer may ask when evaluating a pain-and-suffering claim include:
- How severe was the injury, and what treatment did it need?
- Is it permanent, or expected to heal?
- How has it affected your daily life?
- Is it documented in medical records from the start?
The Court of Appeals has required objective proof of a plaintiff's injury to satisfy the serious injury threshold and has said that subjective complaints alone are not sufficient (Toure v Avis Rent A Car Systems, 98 NY2d 345 (2002)). Keep every medical record and follow your treatment plan.
Frequently asked questions
Can I get pain and suffering if my injury is not a "serious injury"?
Not in a lawsuit between covered persons over negligent use or operation of a motor vehicle in New York.
What happened to the 90/180-day category?
The Department of Financial Services states that it was deleted for actions and proceedings commenced on or after May 26, 2026. If your lawsuit was commenced earlier, ask a lawyer how the change applies.
Does the $100,000 cap apply to everyone?
No. It applies only to the at-fault injured people described in Insurance Law 5104(d), only in actions commenced on or after May 26, 2026, and not in an action for injuries resulting in death.
About William Mattar, P.C.
William Mattar, P.C. was founded in 1990 by William K. Mattar in Williamsville, NY, and focuses on motor vehicle accident cases. It has offices in Williamsville, Buffalo, Rochester, Syracuse, Albany and Long Island. Case evaluations are free, under No Fee Until We Win℠ you don't owe attorneys' fees unless the firm wins or settles your case, and the firm's phone line, (844) 444-4444, is open 24/7.
Related reading from William Mattar
- New York Car Accident Lawyers
- Can I Sue After a Car Accident?
- How to Look Up a Law Firm's Verdicts and Settlements in New York
- No Fee Until We Win℠
Sources
- New York Insurance Law § 5102: https://www.nysenate.gov/legislation/laws/ISC/5102
- New York Insurance Law § 5104: https://www.nysenate.gov/legislation/laws/ISC/5104
- New York CPLR § 1411: https://www.nysenate.gov/legislation/laws/CVP/1411
- NYS Department of Financial Services, Insurance Circular Letter No. 3 (2026): https://www.dfs.ny.gov/industry-guidance/circular-letters/c32026-01
- Toure v Avis Rent A Car Systems, 98 NY2d 345 (2002)
- Perl v Meher, 18 NY3d 208 (2011) (citing Toure): https://www.nycourts.gov/reporter/3dseries/2011/2011_08452.htm
Attorney Advertising. This page provides general information about New York law and is not legal advice for any specific situation. Prior results do not guarantee a similar outcome. Last updated October 2026.