Imagine that as a plaintiff’s attorney you are required to prove the violation of a statute. Imagine further that the jury returns a verdict in your favor. Finally, imagine that an appellate court dismisses your case because you failed to prove an element that is contained in neither the statute nor the jury instructions. A recent decision by the Appellate Division, Second Department, makes this possibility a reality for lawyers prosecuting motor vehicle “threshold” cases.
New York’s No-Fault Law,1 enacted in 1973, provides that individuals injured in motor vehicle accidents may be compensated for their economic losses without regard to fault or negligence. In exchange for the prompt payment of “basic economic loss,”2 the law restricts the right to sue to cases where the plaintiff has sustained a statutorily defined “serious injury.”3
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