S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7036
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 29, 2017
                                ___________
 
 Introduced  by  M.  of  A.  TITONE, LAVINE, ORTIZ, ROSENTHAL, BENEDETTO,
   RIVERA, WEPRIN, CYMBROWITZ, PEOPLES-STOKES, PAULIN,  DINOWITZ,  AUBRY,
   O'DONNELL, COLTON, ZEBROWSKI, MOYA, CAHILL, SIMOTAS, BRAUNSTEIN, WALK-
   ER,  CASTORINA,  SEPULVEDA -- Multi-Sponsored by -- M. of A. ABINANTI,
   ARROYO, CRESPO, CROUCH,  ENGLEBRIGHT,  FINCH,  GALEF,  GLICK,  HAWLEY,
   HOOPER,  JAFFEE, McKEVITT, MONTESANO, PERRY, PRETLOW, RA, RAIA -- 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
 ninety days during the one hundred eighty days immediately following the
 occurrence of the injury or impairment.  A  FINDING  OF  SERIOUS  INJURY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              
             
                          
                                                                            LBD05121-01-7
 A. 7036                             2
 
 UNDER ANY OF THE ABOVE ENUMERATED CATEGORIES IN THIS DEFINITION SHALL BE
 A SUFFICIENT BASIS FOR AN AWARD FOR PAST AND/OR FUTURE DAMAGES.
   §  2.  The  insurance law is amended by adding a new section 5102-a to
 read as follows:
   § 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.
   § 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.