How a Pre-Existing Condition Can Affect Your Car Accident Settlement in New York

Short answer: Yes, you can still recover in New York if a crash worsened a condition you already had. New York’s eggshell plaintiff rule means a driver takes you as they find you. What changed is the proof. A May 26, 2026 amendment to Insurance Law § 5102(d) removed the 90/180-day category from the serious injury definition, which leaves fewer ways to qualify and puts more weight on medical evidence that separates the old problem from the new one. Because case value depends on venue, records, and expert proof, please speak with an attorney about your specific situation.

In New York City, traffic deaths hit a record low in 2025 at 205, down 19% from 253 the year before, according to NYC DOT. But serious injuries barely moved. They fell only 2.8%, from 3,031 to 2,947. Total injuries dropped 7.7%, from 51,540 to 47,557.

Those roughly 2,950 seriously injured people are the ones whose claims get fought over. And if you had a bad back, an old shoulder, or arthritis before the crash, the fight usually starts with your MRI. We’ve seen this pattern often enough at the Law Offices of Norman Gershon that we wanted to lay out what the courts have actually been doing, rather than repeat the general advice already floating around. If your claim has already been questioned because of a prior injury, a car accident lawyer in Westchester County can tell you quickly whether your records support the causation argument or leave a hole in it.

What Changed on May 26, 2026 and Why It Hits Pre-Existing Condition Claims Hardest

Four changes took effect for actions commenced on or after May 26, 2026. All four are confirmed in New York Department of Financial Services Insurance Circular Letter No. 3 (2026), issued July 1, 2026.

Change	What it means	Statute
90/180 category deleted	The non-permanent injury category, which covered people kept from usual daily activities for 90 of the 180 days after a crash, is gone	Ins. Law § 5102(d)
Fault decided first	The trier of fact must determine fault before liability for non-economic loss can attach, and serious injury must be established	Ins. Law § 5104(a)
$100,000 non-economic cap for some at-fault drivers	Applies to drivers of uninsured vehicles they were responsible for insuring (with a narrow exception for lapses under 30 days), and to certain impaired or felony-related convictions. Does not apply where injuries result in death	Ins. Law § 5104(d)
Modified comparative negligence	A claimant whose culpable conduct is greater than the defendants’ combined culpable conduct is barred from recovery	CPLR § 1411(b)

Here’s why this lands hardest on people with prior conditions. The 90/180 category was the fallback lane for injuries that were real and disabling but hard to prove as permanent. That is exactly the profile of someone with degenerative discs or old arthritis. Their imaging looks cluttered, so permanency gets contested, even though they genuinely lost months of work and function.

That lane is closed. Every claim now has to survive under the remaining categories, which are the same categories where the “it’s just degeneration” defense is strongest.

The state described the change as improving statutory definitions so pain and suffering damages go to those able to objectively demonstrate a serious injury. Governor Hochul framed the package as a response to outdated laws and loopholes that pushed New York premiums to some of the highest in the country, with average annual rates above $4,000, close to $1,500 over the national average. Assemblymember David Weprin offered the counterweight, saying the reforms keep safeguards so legitimately injured New Yorkers can still access coverage and compensation.

One more detail tells you what adjusters are being told. DFS added a new Exhibit TR-1 Automobile Tort Reform Calculation and directed insurers to amend pending motor vehicle rate filings to include projected savings from the reforms by August 31, 2026. Carriers are pricing in fewer paid claims. That is part of what you may be feeling on the phone.

To be precise, since a lot of coverage has been loose about this: the reforms did not eliminate recovery for aggravated pre-existing conditions. They removed one qualifying category and changed fault sequencing.

The Eggshell Plaintiff Rule Still Protects You in New York

The controlling principle has not moved. A defendant takes the plaintiff as found.

In Bartolone v. Jeckovich, 103 A.D.2d 632 (4th Dept 1984), a plaintiff in a four-car chain reaction suffered whiplash and cervical and lower back strain, treated with muscle relaxants and physical therapy, no hospitalization. He then suffered an acute psychotic breakdown. The theory tried was that the accident aggravated a pre-existing paranoid schizophrenic condition. The jury awarded $500,000, and the Appellate Division reinstated that verdict.

Two pattern jury instructions carry this into the courtroom:

• PJI 2:282 (Aggravation of Pre-Existing Injury): the plaintiff recovers for increased disability or pain resulting from the aggravation, where the accident caused it.
• PJI 2:283 (Increased Susceptibility): a physical or mental condition that makes someone more susceptible to injury than a healthy person does not relieve a defendant of liability.

Here’s the honest limit, and any page that leaves it out is not being straight with you. PJI 2:282 also says the plaintiff recovers only for damage caused by the aggravation, not for the underlying condition itself.

Aggravation of a pre-existing condition is the legal claim that a crash made an existing medical problem measurably worse. Under New York’s pattern jury instructions, the injured person recovers for the worsening, not for the condition they already had.

The Rule That Creates the Actual Risk

Pommells v. Perez, 4 N.Y.3d 566 (2005) is the case defense adjusters work from. The Court of Appeals held that even where objective medical proof exists, additional contributory factors that interrupt the chain of causation, such as a gap in treatment, an intervening medical problem, or a pre-existing condition, can make summary dismissal appropriate.

So both things are true at once. The eggshell rule protects you. Pommells means you can still lose before a jury hears anything if your medical proof doesn’t affirmatively separate old from new.

Why a “Degenerative” MRI Proves Far Less Than the Adjuster Suggests

This is the most useful evidence in the whole conversation, and it’s peer-reviewed.

Brinjikji and colleagues reviewed 33 studies covering 3,110 people with no symptoms at all (AJNR Am J Neuroradiol, 2015;36(4):811-816). Their findings:

• Disc degeneration in asymptomatic people rose from 37% of 20-year-olds to 96% of 80-year-olds
• Disc bulge prevalence rose from 30% at age 20 to 84% at age 80
• Disc protrusion rose from 29% to 43%
• Annular fissures rose from 19% to 29%

The authors concluded that degenerative imaging findings are common in people without symptoms, increase with age, are likely part of normal aging, and have to be read in the context of the patient’s clinical condition.

An MRI showing degenerative changes does not tell you whether a person was in pain before the crash. Nearly a third of symptom-free 20-year-olds already have a disc bulge. The finding on the film is common. What is not common is the day your pain started.

New York’s highest court has said something close to this. In Perl v. Meher, 18 N.Y.3d 208 (2011), the Court accepted a radiologist’s affidavit explaining that while some MRI findings are consistent with degenerative disease, a single MRI cannot rule out that soft tissue findings came from a specific trauma, and that this is a question best judged by the treating physician. Perl also rejected a rigid requirement that contemporaneous reports contain quantitative measurements, noting a case shouldn’t be lost because a treating doctor was focused on treating.

Context worth holding onto: CDC’s Preventing Chronic Disease (2025) reports diagnosed arthritis in 27.9% of US adults aged 20 and older, about 67.1 million people, with osteoarthritis the most common subtype at 49.6%. Roughly one in four adults already carries something an insurer can label pre-existing. Having one is normal.

What New York Appellate Courts Actually Did in 2025 and 2026

We pulled the recent decisions rather than rely on general principles. The pattern is clearer than you’d expect.

Case	Outcome	What decided it
Fernandez v. Sukhdeep, 2026 NY Slip Op 00422 (1st Dept, Jan. 29, 2026)	Dismissed	Doctors gave causation opinions without reviewing 2013 accident records; treatment stopped after 4 visits
Harvey v. New York Foundling Hosp., 2026 NY Slip Op 02601 (1st Dept, Apr. 28, 2026)	Dismissed	Plaintiff’s expert never addressed a prior motor vehicle accident
Krmic v. Corrie (1st Dept, 2025)	Dismissed	Defense radiologist tied positive imaging findings to non-traumatic causes, unrebutted
Lofton v. Colon (4th Dept, July 25, 2025)	Reinstated	Defense physician reviewed no pre-accident records or imaging
Paulson v. Irmgard (2d Dept, Sept. 2025)	Reinstated	Defense never addressed the exacerbation claim pleaded in the bill of particulars
Carter v. Pace (4th Dept)	Reinstated	Defense expert ignored evidence of no pain complaints before the crash

The Four Mistakes That Sank Fernandez

Fernandez is worth studying because the plaintiff had real surgery, a shoulder procedure and a cervical discectomy, and still lost.

1. Believing you recovered is not evidence. His only proof on that point was his own subjective belief he had recovered from a 2013 accident. The Court called that not competent evidence.
2. Treating doctors who never opened the old file. His physicians’ causation opinions came without any acknowledgment of the prior accident or review of those records.
3. Range of motion findings don’t fix causation. His doctor’s spinal ROM deficits were held irrelevant to the causation question.
4. Stopping treatment. Four visits over four months, then nothing until an exam nearly three years later, contradicted by records that kept recommending continued care.

Why the Wins Won

Lofton is the mirror image. The defense physician said the 2018 crash caused only a minor exacerbation and the plaintiff was back to baseline. But he reviewed none of the pre-accident records or imaging and never addressed a January 2019 physical therapy discharge note showing reduced lumbar range of motion, even though he produced deficits in his own exam. The Court called the opinion speculative and conclusory.

The pattern across all six cases: the side that wins is the side whose doctor engaged with the complete record. Not the side with the cleaner MRI.

Paulson carries a practical point you can’t fix yourself. The defense lost because it failed to address the exacerbation claim set out in the bill of particulars. If that claim isn’t pleaded correctly at the start, the defense has no obligation to rebut it. That happens in the first weeks of a case.

If your claim also involves an argument about who caused the crash, our post on how fault gets sorted out after a New York collision covers the new 50% bar under CPLR § 1411(b) in detail.

Can the Insurance Company Get My Old Medical Records in New York?

Yes, for the same body part you’re claiming. This surprises most people.

In Brito v. Gomez, 33 N.Y.3d 1126 (2019), the Court of Appeals held that a plaintiff who alleged the accident caused difficulty walking and standing had affirmatively placed the condition of her knees in controversy. She waived physician-patient privilege as to prior knee treatment, and authorizations for that treatment were material and necessary to the defense.

The First Department below had drawn a narrower line, waiving privilege only for injuries affirmatively placed in controversy, and had declined to follow Second Department precedent treating broad injury and loss-of-enjoyment allegations as opening the entire medical picture. The Court of Appeals reversed.

In New York, your medical records are private until you sue. The moment you claim a crash caused a limitation, you open the door to prior treatment for that same body part. The version of your history the insurer eventually reads is almost never the version you volunteered.

This has local teeth. Westchester County sits in the Second Department. The Bronx and Manhattan sit in the First. Those departments have not always drawn the waiver line the same way, so venue affects what gets produced.

How a Missed 30-Day Deadline Becomes a Causation Defense

Most people treat no-fault paperwork and the pre-existing condition fight as separate problems. They are the same story, and here’s the chain.

Under Regulation 68, revised effective April 5, 2002, DFS shortened written notice of claim from 90 to 30 days, medical bill submission from 180 to 45 days, and required lost wage claims within 90 days. The 30-day clock starts the day after the accident, per DFS Office of General Counsel opinion. Under 11 NYCRR § 65-3.3(e), an insurer may deny a claim for late written notice absent written proof of clear and reasonable justification.

Follow what happens next:

Miss the 30-day notice → no-fault gets denied → you can’t afford to keep going to physical therapy → treatment stops → the Pommells gap-in-treatment defense opens → the insurer argues the pause proves you healed → your old degeneration becomes the whole explanation for your pain.

Coverage floors matter here too. DFS sets minimum third-party bodily injury limits at $25,000 per person and $50,000 per accident (or $50,000/$100,000 where injuries result in death), with $10,000 property damage. Minimum no-fault is $50,000 per person. Assembly Bill A5053 would raise those figures, but it has not been enacted. As of 2026, the existing limits still apply.

Also worth knowing: most New York personal injury actions carry a three-year statute of limitations under CPLR § 214, with much shorter and stricter deadlines for claims against municipalities and public entities.

If you’re inside that first month after a crash and your no-fault paperwork isn’t filed, that’s the call to make today. The Law Offices of Norman Gershon offers a free consultation at 914-290-5972, and we speak Spanish.

The Gershon Before-and-After Standard: Four Proofs a Pre-Existing Condition Claim Needs

This is drawn directly from what the 2025 and 2026 decisions above rewarded and punished.

1. BEFORE. Documented pre-crash function. Records, employment history, activity level, all establishing a baseline. In Lofton and Carter, the absence of prior complaints is what defeated the defense expert.
2. BREAK. Contemporaneous post-crash findings. Per Perl, they don’t have to be numeric, but they have to exist.
3. BRIDGE. A treating physician who has read the old records and explains the change. Fernandez died on exactly this defect.
4. CONTINUITY. Unbroken, explained treatment. Under Pommells and Fernandez, an unexplained stop severs causation.

Short version, if it helps you remember it: the film is old, but the pain has a date.

Cases We’ve Handled Where a Prior Condition Was the Central Fight

Norman Gershon has tried injury cases in New York for more than 35 years, with over $100 million recovered across settlements and verdicts since 1991. A few results speak directly to this topic.

• Valliades v. Curtos, $600,000 verdict, Bronx Supreme. An elderly woman with severe pre-existing osteoarthritis, whose knee replacement came five years after the incident.
• Guzman v. 4030 Bronx Boulevard Associates, $675,000 settlement during trial, Bronx Supreme. An eleven-year-old with claimed cognitive deficits, a negative head CT, a prior head injury, and school records that didn’t support the deficits. Nearly every causation defense at once.
• Bouls v. NYCTA, $703,902 verdict, New York Supreme. A pedestrian struck by a bus who had worked as a cook for over twenty years, with carpal tunnel surgery and median nerve injury. The classic “it was your job, not our bus” argument.
• Yurkovic v. Cepin, $2,500,000 verdict, Westchester Supreme. Cervical disc herniations with fusion, tried in the county where many of our clients live.

Prior results do not guarantee or predict a similar outcome. These figures are not an estimate of value for any other case.

Talk to Someone Before the Insurer Builds Your Record for You

If an adjuster has already told you your injury was “already there,” you’re at the exact point where the next few decisions matter most. Whether the exacerbation claim gets pleaded properly, whether your treating doctor reviews your prior imaging, and whether your treatment continues without an unexplained gap will shape the case more than the MRI itself.

We can’t tell you what a claim is worth from a webpage, and anyone who does is guessing. What we can do is look at your records and tell you honestly where the causation proof is strong and where it needs work.

Call the Law Offices of Norman Gershon at 914-290-5972 for a free consultation. Offices at 1 Barker Avenue, White Plains, NY 10601 and 60 June Road, North Salem, NY 10560. Hablamos Español.

Frequently Asked Questions

I had arthritis before my accident. Can I still sue in New York? Yes. New York’s eggshell plaintiff rule holds that a defendant takes you as they find you, and PJI 2:283 states that a condition making you more susceptible to injury doesn’t relieve a defendant of liability. You recover for the worsening, not for the arthritis itself. Whether your case clears the serious injury threshold depends on your records.

My MRI says degenerative changes. Does that end my case? No, though it does mean the causation fight will be the center of the case. Peer-reviewed data (Brinjikji, AJNR 2015) found disc degeneration in 37% of symptom-free 20-year-olds and 96% of symptom-free 80-year-olds. Degeneration on a film is expected. In Perl v. Meher, the Court of Appeals accepted a radiologist’s opinion that a single MRI can’t rule out trauma as the cause of soft tissue findings.

Do I have to tell the insurance adjuster about my old injury? Speak with an attorney before making any statement. Once you file suit, Brito v. Gomez confirms you waive privilege over prior treatment to that same body part anyway, so the insurer will see it. What matters is how it’s framed and explained by your physicians, not whether you mentioned it first.

Was the 90/180 rule really eliminated in New York? Yes. Part EE of Chapter 58 of the Laws of 2026 deleted that category from Insurance Law § 5102(d), effective May 26, 2026, for actions commenced on or after that date. The remaining categories, including permanent consequential limitation and significant limitation of use, still apply.

I stopped physical therapy for a few months. Did I ruin my claim? Not automatically, but you need a documented explanation. Under Pommells v. Perez, an unexplained gap can support dismissal. In Fernandez, the plaintiff’s explanation failed because his own records kept recommending continued treatment. If your gap had a cause, insurance denial, job loss, or a doctor discharging you, that needs to be in the record.

How do doctors tell whether a herniated disc is new or old? There’s no single test that settles it. Radiologists look at features like disc hydration, endplate changes, and edema, but as Perl acknowledged, one MRI often can’t resolve it. That’s why the courts keep returning to the same thing: a treating physician who compared the pre-crash and post-crash pictures and can explain the difference.

What if I’m partly at fault for the crash? Under the amended CPLR § 1411(b), effective May 26, 2026, a claimant whose culpable conduct is greater than that of the parties they’re suing is barred from recovery in actions subject to Insurance Law Article 51. Fault is also now decided before the serious injury question under § 5104(a).

Reviewed by Norman Gershon, trial attorney, Law Offices of Norman Gershon. Last reviewed July 2026. Attorney advertising. This article is general information about New York law and is not legal advice for any specific situation. Prior results do not guarantee a similar outcome.