I was driving my car and was struck by another car. The other vehicle blew through a stop sign. I have marks on my face and arm. What are my remies?

Before you can recover money for pain and suffering, you have to clear a hurdle that surprises most accident victims — the serious injury threshold. Insurance Law § 5104. This post walks through the process of the claims you have. You start by filing for no-fault benefits, then proving the other driver was at fault. Then you need to understand why the no-fault system blocks many lawsuits. Finally, you must know what it takes to prove a “significant disfigurement.” This is one of the categories that lets you sue for personal injuries.

Step One: File for No-Fault Benefits

Right after the crash, the first thing that happens has nothing to do with the other driver’s fault. Under New York’s no-fault system, your own auto insurer pays your initial medical bills and a portion of your lost wages — regardless of who caused the accident. Coverage runs up to $50,000 per person in basic economic loss.

There is a deadline: you generally must submit your no-fault application (the NF-2 form) to your insurer within 30 days of the accident.

This is why the very first call after an accident matters. You can lose no-fault benefits. No-fault benefits are not a favor from your insurer — they are your right under the policy. Think of No-fault benefits like a health insurance rider and disability policy attached to every car insurance policy. Therefore, your own car insurance will pay for no-fault benefits.

No-fault insurance will pay for medical care and partial lost wage reimbursement quickly without a fight over blame. But no-fault law comes with a tradeoff, which is the heart of this post.

Step Two: Proving the Other Driver Was at Fault

No-fault pays your bills no matter who was to blame. But suing the other driver for pain and suffering is a different matter — there, fault is everything.

In a stop-sign case, the law gives you a strong starting point. New York Vehicle and Traffic Law § 1172(a) requires every driver approaching a stop sign to come to a full stop and to yield the right of way before entering the intersection. A driver who rolls through the sign and into the intersection has violated that statute.

A violation of VTL § 1172(a) is powerful evidence of negligence. Proof of violation of the Vehicle and Traffic Law is proof of negligence. Combined with the physical facts of the crash — the point of impact, the damage to the vehicles, witness accounts, any traffic-camera or dashcam footage — a stop-sign case is often one of the more straightforward liability cases to prove.

But proving the other driver was careless is only half the battle. Even with liability locked down, New York law asks a second, separate question.

Step Three: The No-Fault System and Why It Blocks Many Lawsuits

Here is where many accident victims are caught off guard. New York Insurance Law § 5104 provides that in a motor vehicle case, you cannot sue the at-fault driver for pain and suffering unless your injuries meet the “serious injury” threshold defined in Insurance Law § 5102(d). Liability and the threshold are two separate fights. A driver can be completely at fault. If the injury does not qualify as “serious,” the Court will dismiss the case.

Section 5102(d) lists nine categories of serious injury. They include death, dismemberment, a fracture, permanent loss of use of a body organ or member, significant limitation of use of a body function or system, the so-called “90/180” category — and the one this post focuses on: significant disfigurement.

If your injury fits one of these categories, the door to a lawsuit opens, and you can pursue fair and just compensation for pain and suffering. If it does not, you are limited to your no-fault benefits, no matter how plainly the other driver was at fault.

So the scar from the stop-sign crash takes us to the key question: does it qualify as a significant disfigurement?

Step Four: What “Significant Disfigurement” Actually Requires

New York courts apply a specific test. An injury is disfiguring if it alters a person’s natural appearance for the worse. A disfigurement is significant if a reasonable person (not the victim themself) viewing the body in its altered state would regard the condition as unattractive, objectionable, or as the object of pity or scorn.

The test is objective, not subjective

What matters is how a reasonable person would view the injury — not how self-conscious or distressed the injured person feels about it. The jury’s finding must rest on the reaction of a reasonable observer, not on the plaintiff’s own assessment (Pecora v Lawrence, 41 AD3d 1212 (4th Dept 2007)). 

Whether a particular scar clears the “serious injury” bar is usually a question of fact for the jury, but courts draw lines. Some examples from the case law:

  • A permanent, visible seven-inch scar on the plaintiff’s head raised a triable question of significant disfigurement (Cushing v Seemann, 247 AD2d 891 (4th Dept 1998)).
  • A jury finding of no significant disfigurement was against the weight of the evidence where a roughly two-to-two-and-a-half-inch scar appeared on the forehead (Zulawski v Zulawski, 170 AD2d 979 (4th Dept 1991)).
  • If a one-and-a-half-inch scar on a woman’s knee was a significant disfigurement is a triable issue of fact for a jury (Lewis v General Elec. Co., 145 AD2d 728 (3d Dept 1988)).
  • By contrast, severe facial bruising that subsided within a few weeks of the accident did not qualify as a significant disfigurement (Wiegand v Schunck, 294 AD2d 839 (4th Dept 2002)).
  • A scar that was covered by a woman’s hair did not raise an issue of fact and the Court dismissed the case. (Mahar v Bartnick, 91 AD3d 1163 (3d Dept 2012)).
  • A small scar that was barely noticeable except when sunburned presented a question of fact for the jury (Prieston v Massaro, 107 AD2d 742 (2d Dept 1985)).

The lesson is that there is no magic formula. Location, visibility, and permanence of the mark all factor into how a reasonable person would react. For example, a scar on the face or another exposed area carries more weight than one hidden by clothing or hair. Courts have found triable issues over surgical scars on the spine, shoulder, foot, and ankle.

The disfigurement does not have to be permanent

This is the single most important practical point, and it is the reason timing matters so much. New York’s no-fault law does not require that a disfigurement be permanent to qualify as a serious injury (Caruso v. Hall, 101 AD2d 967, 968 (1984), affd 64 NY2d 843 (1985)). But the location and permanency of the scar will be a factor to determine if the injury was a “significant disfigurement.”

A wound that looks dramatic in the weeks after a crash but heals cleanly over time can still be a significant disfigurement. But you can only prove what you can document. Once a wound heals, the evidence of how disfiguring it was disappears with it. Moreover, a defense lawyer will happily point to a faded scar and argue there was never anything significant to see.

That is why, in cases like these, we photograph the injuries as early and as thoroughly as possible. Clear, well-lit, dated photographs taken in the days and weeks after the accident — before healing sets in — are often the most persuasive evidence of significant disfigurement a jury will ever see.

By James Santner, Esq.

Minchew & Santner, LLP represents injured people throughout New York and New Jersey. If you or a loved one was hurt in a motor vehicle accident, contact us for a free consultation. There is no fee unless we recover for you.