The End of 90/180: What the Repeal of New York's Most Contested Threshold Category Means in Practice

Kenney Shelton Liptak Nowak LLP | Civil Litigation Update

Karl E. Daniel, Esq. | Partner

Patrick S. Kenney, Esq. | Managing Partner

Wednesday, June 3, 2026

Of the several changes enacted in New York's 2026 tort reform package, the repeal of the 90/180-day serious injury category under Insurance Law § 5102(d) is the one that will be felt most immediately in day-to-day litigation. It eliminates an entire avenue of threshold recovery, which is one that defense practitioners have challenged for decades and that plaintiffs' counsel have routinely pleaded as a fallback to more serious injury categories. 

All civil practitioners should understand what the repeal actually does, and what it does not do, when preparing cases filed on or after May 26, 2026.

What the 90/180 Category Was

New York's no-fault law bars plaintiffs from suing for non-economic damages (like pain and suffering) unless they sustained a "serious injury" within the meaning of Insurance Law § 5102(d). The statute defines serious injury through nine categories, including death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of a body organ or member, permanent consequential limitation of use, significant limitation of use, and until now, the 90/180 category.

The 90/180 category allowed a plaintiff to establish serious injury by demonstrating a medically determined injury or impairment that prevented performance of substantially all daily activities for at least 90 of the first 180 days following the accident. Unlike the permanent injury categories, it did not require a showing of lasting harm. A soft-tissue injury, like a cervical sprain or lumbar strain, supported by a physician's attestation could qualify a plaintiff for non-economic damages even where no permanent functional limitation could be demonstrated.

That issue made the category a persistent source of conflict. Defense practitioners argued, with considerable force, that the combination of a broad "substantially all daily activities" standard and treating-physician attestations invited claims that were difficult to challenge on summary judgment and easy to plead as insurance against the risk that more serious categories would not survive threshold motion. 

Insurers pointed to the category as a driver of soft-tissue litigation volume and inflated settlement demands. The Governor's office accepted that analysis and proposed outright repeal, which the legislature ultimately enacted.

What the Repeal Does

For cases commenced on or after May 26, 2026, the 90/180 category no longer exists. A plaintiff who cannot establish one of the eight remaining categories of serious injury, principally the permanent loss, permanent consequential limitation, and significant limitation categories, cannot recover non-economic damages. The no-fault framework provides the exclusive remedy.

The most direct consequence is on summary judgment practice. Under prior law, defendants moving on threshold grounds often faced the tactical problem that a plaintiff who could not sustain the significant limitation or permanent consequential limitation categories could pivot to 90/180, supported by a treating physician's narrative affidavit. That pivot is no longer available. A defense motion now needs to address only the categories a plaintiff can actually plead and support, and the 90/180 fallback is gone.

The change will also affect case intake and early valuation. Soft-tissue claims that previously had settlement values specifically because of the 90/180 option (where a plaintiff's injuries were resolved but were temporarily severe enough to qualify) now face a harder threshold question from the outset. Cases that survive only on a 90/180 theory, without a credible permanent limitation claim, are effectively non-viable for non-economic damages under the new law.

What the Repeal Does Not Do

Precision matters here. The repeal eliminates the 90/180 category. It does not narrow the remaining eight categories of serious injury, and it does not alter the evidentiary standards for establishing permanent loss of use, permanent consequential limitation, or significant limitation. A plaintiff with a documented permanent cervical or lumbar limitation supported by objective medical evidence, like MRI findings, range-of-motion measurements, or specialist opinions, still has a viable threshold claim under the existing categories.

One analytical subtlety deserves attention. Prior to the reform, plaintiffs frequently pleaded 90/180 in combination with permanent limitation categories. In many of those cases, the 90/180 claim served as a litigation hedge rather than the primary theory. The repeal strips away that hedge, but the underlying permanent limitation claims in those cases are unaffected. Defense teams should not assume that the repeal renders pending or newly filed cases non-viable on threshold grounds without examining what other categories are in play.

Similarly, the repeal does not affect claims for economic loss. Lost wages and medical expenses recoverable beyond no-fault limits are governed by separate provisions and are not conditioned on a serious injury finding.

Implications for Summary Judgment Strategy

The procedural consequence of the repeal is likely to be an increase in the success rate of defense threshold motions in soft-tissue cases. Courts had grown accustomed to denying or narrowing threshold motions where a 90/180 issue remained for the jury even after permanent limitation categories were resolved against the plaintiff on papers. That escape valve is closed.

Defense counsel should review their threshold motion practice with the new framework in mind. The structure of the motion changes: rather than addressing the 90/180 category as a separate prong, the analysis can focus exclusively on the remaining categories. Expert affidavits, surveillance evidence, and medical records should be marshaled to challenge the objective basis for any permanent limitation claim, which was always the harder question and is now the only question.

Plaintiffs' counsel, for their part, will need to front-load their objective medical evidence. Cases that relied on treating-physician narrative affidavits to sustain a 90/180 claim, rather than documented objective findings, will be more vulnerable on threshold motion than they were before May 26, 2026.

The Broader Takeaway

The 90/180 repeal is not a minor procedural adjustment. It closes a category of recovery that, for decades, allowed plaintiffs with nonpermanent injuries to pursue non-economic damages in circumstances where the more demanding permanent limitation categories were unavailable. Its practical effects will be felt in settlement negotiations, motion practice, and trial case selection. Defense practitioners should treat it as a structural change to how threshold cases are built and litigated, not simply a reduction in the menu of plaintiff options.

Kenney Shelton Liptak Nowak LLP represents insurers, municipalities, and businesses in motor vehicle threshold litigation throughout New York. For questions about how the 90/180 repeal affects pending or future matters, contact our civil litigation team.