The 90/180-Day Category: A Preventable Loss and a Reliable Win

The 90/180-day category of serious injury under Insurance Law § 5102(d) presents a paradox for the defense bar. It is both the category most often lost by default and the category most reliably won on the merits. Defense attorneys lose it by failing to address the relevant time period in their expert reports. But when they do address it, plaintiffs rarely clear the high bar the statute sets. This post covers both sides of that coin.

Your Expert Said Nothing About the First 180 Days

The 90/180-day category is the one defense attorneys most often lose by default. Not because the law is against them, but because their expert reports say nothing about the relevant time period. Three recent appellate decisions illustrate just how reliably this oversight sinks an otherwise viable motion.

A Thorough Report That Skips the Only Period That Matters

The pattern is remarkably consistent. The defense retains an expert who examines the plaintiff months or years after the accident. The expert measures range of motion, reviews imaging, and opines on the plaintiff's current condition. The report says nothing about what the plaintiff could or could not do in the 180 days following the accident. The motion fails on the 90/180-day category as a matter of law.

In Diaz v. Nightingale Bakery & Beverage Distrib., Inc. (2d Dept 2025), the Second Department reversed summary judgment because the defense experts "did not specifically relate any of their findings to this category of serious injury for the relevant period of time following the accident." The court held that the plaintiff's deposition testimony, standing alone, was also "insufficient to meet their burden of proving that the plaintiff had no injury under the 90/180-day category." And because the defense failed to establish its prima facie case on the 90/180-day claim, the court never reached the other categories at all. The entire motion was denied.

The Third Department reached the same result in Tesiero v. Castor (3d Dept 2025), a case involving extensive preexisting injuries. The defense expert, Dr. Seigel, compiled a detailed history of the plaintiff's prior accidents and treatments. He examined the plaintiff, measured diminished range of motion, and recorded a positive FABER test. But despite all that work, he "failed to adequately address [the plaintiff's] condition or limitations within the first 180 days following the accident, which was necessary to foreclose the 90/180-day category of serious injury." The court was blunt: this omission, combined with a failure to address the plaintiff's testimony about his usual activities before and after the accident, was fatal to the motion.

Making matters worse, Dr. Seigel's own findings cut against the defense. The court observed that his recorded diminished range of motion and positive FABER test "actually serve[d] to support" the plaintiff's serious injury claim. He also incorrectly stated that the plaintiff had not complained of lower back pain at either emergency department visit, which "is contradicted on the first page of the notes for each visit."

Anderson v. Baker (3d Dept 2025) may be the most instructive case of the three. The defense expert, Dr. Feldman, examined the plaintiff 16 months after the accident and concluded the plaintiff's abdominal hematoma had resolved. His report "did not offer any opinion as to Anderson's condition or limitations within the first 180 days following the accident, which is necessary to foreclose the 90/180-day category."

The defense argued that the plaintiff's own medical records and deposition testimony filled the gap. The court disagreed, finding that those records actually confirmed the plaintiff's claim: she had sustained a large abdominal hematoma, was told not to do anything for a week, and did not report having "no pain" until more than 90 days after the accident. Her husband testified that she was "pretty much incapacitated at home" for at least two months. The court held this proof was not "sufficiently complete" to establish the absence of a serious injury under the 90/180-day category.

What makes Anderson particularly notable for defense practitioners is that the defense succeeded on two other categories. The court granted summary judgment dismissing the permanent consequential limitation and significant limitation of use claims. But because the expert report said nothing about the 90/180-day window, the motion failed on that category, and the case survived.

When You Address It, Plaintiffs Rarely Clear the Bar

Part 1 covered how defenses lose the 90/180-day category by ignoring it. But when the defense does engage with the category, the results are striking. The 90/180-day claim is often the easiest one to dismiss, even in cases where the rest of the motion fails. The reason is the statute's demanding language: the plaintiff must show an injury that prevented the performance of "substantially all" of their usual and customary daily activities for not less than 90 of the first 180 days. That is a high bar, and plaintiffs routinely fail to clear it.

Pain and Reduced Capacity Are Not Enough

The 90/180-day category is not about pain. It is not about reduced capacity. The plaintiff must prove that an injury, medically determined, prevented them from performing substantially all of their customary daily activities for at least 90 days within the statutory window. Courts have consistently held that evidence of continued daily functioning, even limited or painful functioning, defeats this claim.

The Fourth Department put it simply in Totaro v. Malinowski (4th Dept 2025): the defendant submitted "competent evidence establishing that plaintiff's activities were not curtailed to a great extent and that [she] therefore did not sustain a serious injury under the 90/180[-day] category of serious injury." The plaintiff failed to raise a triable issue of fact.

What makes Totaro notable is that the defense lost on everything else. The court reinstated the plaintiff's claims for permanent consequential limitation and significant limitation of use, finding the defendant had failed to meet his initial burden on those categories. But the 90/180-day claim was dismissed. The plaintiff was injured. She had preexisting conditions that may have been exacerbated. None of that mattered for the 90/180-day analysis, because the evidence showed her daily activities were not curtailed to the degree the statute requires.

Injured but Still Functioning

Zazulak v. Sarna (4th Dept 2025) followed the same trajectory. The defense moved for summary judgment on all categories and failed on two of them. The court denied the motion as to significant limitation and permanent consequential limitation, finding that the defense's own submissions established the plaintiff had sustained at least a cervical spine sprain/strain with limited range of motion. The defense also failed to eliminate issues of fact on causation, having not shown that the plaintiff's injuries were "entirely [preexisting] . . . and were not exacerbated by the accident in question."

But on the 90/180-day category, the court modified the order in the defense's favor. The decedent had submitted "competent evidence establishing that plaintiff's activities were not curtailed to a great extent," and the plaintiff failed to raise a triable issue of fact. Even in a case where the defense could not establish the absence of significant or permanent limitations, the court found that the plaintiff's daily activities were not curtailed enough to satisfy the 90/180-day standard.

The Deposition Question That Wins the Category

Perhaps the most practical lesson comes from Miller v. New York City Tr. Auth. (Sup Ct New York County 2025). In Miller, the plaintiff testified that he "was never confined, but I stopped doing a lot of things when I was first injured because I was in too much pain, so I stayed home a lot." That sounds, at first glance, like testimony that could support the 90/180-day claim. The plaintiff was in pain. He reduced his activities. He stayed home.

But when asked whether he went to work, the plaintiff answered: "Yes, I was still back and forth. Yes, I went to work." That was enough. The court cited the First Department's holding in Correa v. Saifuddin (95 AD3d 407 [1st Dept 2012]) that "[t]he ability to return to work may be said to support a legitimate inference that the plaintiff must have been able to perform at least most of his usual and customary daily activities."

Miller is also useful because it shows that the defense can establish its prima facie case on the 90/180-day category without medical evidence. The court relied on the plaintiff's own deposition testimony showing "that plaintiff did not claim to have been confined to bed or home for the requisite amount of time." The defense did not need an expert to address the 90/180-day window; the plaintiff's testimony did the work for them.

Two Problems, Two Fixes

The cases above point to two distinct problems and two distinct fixes.

The first problem is losing the 90/180-day category by default. As Diaz, Tesiero, and Anderson demonstrate, a defense expert who says nothing about the first 180 days after the accident cannot foreclose this category, no matter how thorough the rest of the report may be. The fix is to ensure the IME report affirmatively addresses the statutory window. The expert should review the medical records from the first six months, opine on the plaintiff's functional limitations during that period, and state whether the plaintiff's condition prevented substantially all of their usual and customary daily activities for 90 or more days. Without that, the court will not reach the merits.

The second problem is leaving an easy win on the table. The 90/180-day category is the most binary of the serious injury categories. The plaintiff either was prevented from performing substantially all of their daily activities for 90 days, or was not. Pain, discomfort, and reduced capacity are not enough. As Totaro, Zazulak, and Miller show, even plaintiffs with real injuries and legitimate claims under other categories regularly fail this one, because continued daily functioning defeats the claim.

The defense's best tool here is the deposition. Ask the plaintiff what they did during the first six months after the accident. Ask about work, household tasks, errands, childcare, exercise, and social activities. Any evidence of continued functioning undermines the claim. And as Miller demonstrates, the plaintiff's own testimony can be sufficient to establish the defense's prima facie case on this category without any medical evidence at all. If the plaintiff went back to work, that alone supports the inference that they could perform most of their daily activities.

Address the time period in your expert report. Mine the deposition for evidence of daily functioning. The 90/180-day category should be the easiest line item on your summary judgment motion.

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Cases Cited

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About This Research

I'm Tommy Eberle, CEO and co-founder of DocketDrafter. I'm not a lawyer. I compiled this analysis by:

• Downloading Insurance Law § 5102(d) serious injury decisions from the past year from CourtListener, covering both appellate and trial courts
• Using Claude Code to filter the results down to the 6 decisions that substantively addressed the 90/180-day category
• Using Claude Code to help draft the article, then manually verifying all quotes and citations against the original opinions

If you have comments or want to discuss the research process in detail, email me at tommy@docketdrafter.com.