The Court of Appeals has not revisited the area of the determination of what constitutes a “serious injury” as defined in Insurance Law §5102(d) since 2011. Then, in Perl v. Meher, 18 N.Y.3d 208, the court explicitly held that there is no requirement to prove quantitative measurements of range of motion contemporaneous to the accident although a contemporaneous medical report as to injuries is important proof of causation.

'Significant Disfigurement'

Since Perl, some noteworthy cases have been handed down by the Appellate Divisions clarifying the definition of “serious injury”. Regarding the proof of a “significant disfigurement” it seems clear that a photograph of the alleged scar is de rigueur in order to win a summary judgment motion. Forster v. Novic, 127 A.D.3d 605.

'Loss of a Fetus'

“Loss of a fetus,” a category added to the No-Fault Law in 1984, has been further defined. In Leach v. Ocean Black Car, 122 A.D.3d 587, the plaintiff suffered a placental abruption causing her son to be born prematurely and delivered by Caesarean section. The Supreme Court, Nassau County, reasoned “loss of fetus” included any termination of a pregnancy caused by an accident regardless of whether the fetus was born alive. The Second Department reversed and held that “loss of fetus” does not include premature birth of a living child and recovery is limited to cases where a viable pregnancy is terminated and the fetus is deceased.