S T A T E   O F   N E W   Y O R K
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                                  4787

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 7, 2011
                               ___________

Introduced by M. of A. TITONE, LAVINE, ORTIZ, SPANO, ROSENTHAL, BENEDET-
  TO,  J. RIVERA, WEPRIN, MAISEL, SCHROEDER, CYMBROWITZ, PEOPLES-STOKES,
  PAULIN, LANCMAN, MILLMAN, MARKEY,  KELLNER,  DINOWITZ,  CASTRO,  MENG,
  AUBRY,  O'DONNELL,  COLTON, SCHIMEL, SCARBOROUGH, ZEBROWSKI, ROBINSON,
  JEFFRIES -- Multi-Sponsored by -- M. of A.  BING, BOYLAND, BROOK-KRAS-
  NY, BURLING, CALHOUN, CRESPO,  CROUCH,  DESTITO,  ENGLEBRIGHT,  GALEF,
  GIBSON,  GLICK, JAFFEE, MAYERSOHN, McENENY, McKEVITT, MONTESANO, PHEF-
  FER, PRETLOW, RAIA, RUSSELL, WRIGHT -- read once and referred  to  the
  Committee on Insurance

AN  ACT  to  amend  the  insurance law, in relation to the definition of
  serious injury and determining the sufficiency of  the  evidence  with
  respect thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subsection (d) of section 5102 of  the  insurance  law,  as
amended  by  chapter  955  of  the  laws  of 1984, is amended to read as
follows:
  (d) "Serious injury" means a personal injury which results  in  death;
dismemberment;  significant  disfigurement;  a  fracture;  A  PARTIAL OR
COMPLETE TEAR OR IMPINGEMENT OF A NERVE,  TENDON,  LIGAMENT,  MUSCLE  OR
CARTILAGE; INJURY TO ANY PART OF THE SPINAL COLUMN THAT RESULTS IN INJU-
RY  TO  AN  INTERVERTEBRAL  DISC; IMPINGEMENT OF THE SPINAL CORD, SPINAL
CANAL, NERVE, TENDON OR MUSCLE; loss of  a  fetus;  permanent  TOTAL  OR
PARTIAL  loss  of  use  of a body organ, member, function or system; ANY
INJURY RESULTING IN THE NEED FOR A  SURGICAL  PROCEDURE;  ANY  permanent
consequential  limitation  of use of a body organ [or], member, FUNCTION
OR SYSTEM; ANY significant limitation of use of a  body  ORGAN,  MEMBER,
function or system; or [a] ANY medically determined injury or impairment
of a PERMANENT OR non-permanent nature which prevents the injured person
from  performing substantially all of the material acts which constitute
such person's usual and customary daily activities  for  not  less  than

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03019-02-1
              

A. 4787                             2

ninety days during the one hundred eighty days immediately following the
occurrence  of  the  injury  or  impairment. A FINDING OF SERIOUS INJURY
UNDER ANY OF THE ABOVE ENUMERATED CATEGORIES IN THIS DEFINITION SHALL BE
A SUFFICIENT BASIS FOR AN AWARD FOR PAST AND/OR FUTURE DAMAGES.
  S  2.  The  insurance law is amended by adding a new section 5102-a to
read as follows:
  S 5102-A.  ISSUES OF FACT AND SUFFICIENCY OF THE EVIDENCE. WHETHER  AN
INJURY  QUALIFIES  AS  A  SERIOUS  INJURY  PURSUANT TO SUBSECTION (D) OF
SECTION FIVE THOUSAND ONE HUNDRED TWO OF THIS ARTICLE SHALL BE  A  QUES-
TION  OF  FACT.  WHERE  EVIDENCE  IS OFFERED AS TO (A) WHETHER AN INJURY
QUALIFIES AS A SERIOUS INJURY PURSUANT TO SUBSECTION (D) OF SECTION FIVE
THOUSAND ONE HUNDRED TWO OF THIS ARTICLE, OR (B) THE CAUSATION  OF  SUCH
AN INJURY, THE SUFFICIENCY AND WEIGHT OF EVIDENCE OFFERED, INCLUDING BUT
NOT  LIMITED  TO  THAT  PERTAINING  TO  QUALITATIVE  AND/OR QUANTITATIVE
ASSESSMENT OF INJURY, SHALL BE RESERVED FOR THE TRIER OF FACT.
  S 3. This act shall take effect immediately and  shall  be  applicable
to:  (i) all actions and proceedings commenced on or after the effective
date  of  this act; and (ii) all actions and proceedings commenced prior
to the effective date of this act and pending on the effective  date  of
this  act,  where  as of such date a trial of the issues thereon has not
yet commenced and a dispositive motion has not yet been filed.