Author: Peter C. Bobchin

Big Changes to New York Auto Liability Law

Peter C. Bobchin

New York Governor Kathy Hochul has signed a new law, effective May 26, 2026 (Assembly Bill A10008C), which enacts significant changes to New York’s auto liability law. The law is applicable to all actions and proceedings commenced on or after the date the bill was signed.

Here are the three most significant changes.

  • The second prong of the serious injury threshold which allowed a party to sue for a non-permanent injury resulting in the inability to perform the usual and customary activities for 90 out of the first 180 days following an accident has been eliminated.
  • New York’s pure comparative law has been replaced by a 50-percent rule. If a plaintiff’s culpable conduct is greater than the culpable conduct of the defendant, or of all defendants combined if there are multiple defendants, plaintiff cannot recover. Thus, New York joins New Jersey and many other modified comparative negligence states.
  • A cap of $100,000 has now been placed on recovery of non-economic damages (other than in an action for damages for injuries resulting in death) where the  injured party is at fault and was (1) operating an uninsured motor vehicle he or she was responsible for insuring (unless the lapse was less than thirty days); (2) operating a motor vehicle while impaired and convicted of such; or (3) operating a motor vehicle in the commission of a felony, or immediate flight therefrom, at the time of the accident and has been convicted of such.  

The law also contains the following provision: 

No liability for non-economic loss shall be fixed unless and until the trier of fact has determined the existence of a serious injury. In any action to recover non-economic loss pursuant to this article, the trier of fact shall not determine the question of whether an injury is a serious injury until the trier of fact has determined the party or parties at fault.

This provision is significant because interest on judgment will not accrue until there is a finding of both fault and a serious injury.  This may also make moving for summary judgment on the serious injury threshold more challenging, with differing interpretations by the courts likely.

New Jersey’s First COVID-19 Era Jury Trial Stayed Over Jury Pool Concerns

Peter C. Bobchin

New Jersey commenced its first COVID-19 era criminal jury trial in September in Bergen County, and an emergent application to the Appellate Division was filed even before opening statements began. The criminal defense attorneys raised a concern as to whether the resulting jury pool represented a cross-section of the community at large. The outcome of the Appellate Division’s decision could impact civil jury trials as they also begin.

To comply with social distancing rules and to curb the chance of spreading the virus, the New Jersey courts implemented a virtual preliminary screening process for prospective jurors in civil and criminal cases. In the criminal case before the Appellate Division, defense lawyers argued that the process excludes those jurors who do not have access to a computer or the internet. The trial judge denied defendant’s motion, but the Appellate Division granted a stay of the trial until defense counsel’s emergent application could be heard. The matter is to be fully submitted to the court by October 7th.

The Association of Criminal Defense Lawyers of New Jersey was granted leave to file an amicus curiae brief. The court also invited the Office of the Public Defender to appear as amicus. The court has not yet decided whether to grant oral argument on the application.

The court’s decision could affect the jury selection process in both civil and criminal cases moving forward, especially if the court rules in favor of the defense. The decision may likely be followed in neighboring states, including New York. New Jersey has commenced limited jury trials in three counties. The five counties that make up New York City are advising attorneys that no civil jury trials will be being commenced until 2021, and possibly not until the summer.

We will follow this story and its implications on the jury selection process moving forward.

Of Course Unreimbursed Medical Expenses are Recoverable…Aren’t They?

Peter C. Bobchin

Traditionally, New Jersey’s no-fault statute was interpreted to allow a plaintiff in a personal injury suit to recover unreimbursed medical expenses that exceeded his PIP coverage.  This was not an issue when all policies carried a required $250,000 in PIP coverage.  Over the years, however, the state legislature tweaked the PIP requirements, allowing insureds to purchase automobile liability policies with lower PIP limits to combat the rising cost of policy premiums.  Today, insureds can designate their health insurer as their primary PIP carrier, or purchase auto policies with PIP coverage as low as $15,000.  The courts, however, continued to view any medical expenses exceeding an insured’s PIP coverage recoverable, except where those expenses were paid by a private health insurer.            

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