Can You Still Recover Compensation If You Were Partly at Fault for a Car Accident in New York?

Updated August 2026. New York changed its car accident fault rule on May 26, 2026. This page reflects the current law.

Short answer: Yes, but only if your share of the blame is not greater than the other side’s. New York changed this rule on May 26, 2026. Before that date, a driver could be found 99% at fault and still collect something. That is no longer how it works for car accident lawsuits filed on or after May 26, 2026.

If you have been reading articles about this online, there is a good chance you read the old rule. Most pages on the subject have not been updated since the change, which is why so many people call us with the wrong information in their heads.

We are the Law Offices of Norman Gershon, and we have been handling crash cases in this state for more than 35 years. Below is what the law actually says right now, where it is still unsettled, and what it means if an insurance adjuster has already told you the wreck was your fault. If your crash happened north of the city, our page for a car accident lawyer in Westchester County covers how we handle those claims.

What Changed in New York on May 26, 2026?

New York moved from pure comparative negligence to modified comparative negligence for car accident injury cases only.

Here is the plain-English version of each term:

• Comparative negligence is the rule that splits blame between everyone involved in a crash, by percentage.
• Culpable conduct is the legal phrase for the part of your own behavior that helped cause the crash or the injury.
• Pure comparative fault meant any percentage of blame still left you with a claim.
• Modified comparative fault means there is now a cutoff.

The change came through Part EE of Chapter 58 of the Laws of 2026, part of the state budget. It added a new subsection to CPLR § 1411. You can read the statute yourself at nysenate.gov.

The New York State Department of Financial Services summarized it in Insurance Circular Letter No. 3 (2026), dated July 1, 2026. In that letter, DFS confirms the amendments took effect May 26, 2026 and apply to all actions and proceedings commenced on or after that date.

Before and After: A Side-by-Side Look

Question	Case filed before May 26, 2026	Case filed on or after May 26, 2026
Rule for car accident injury claims	Pure comparative fault, CPLR § 1411	Modified comparative fault, CPLR § 1411(b)
Recovery if you are 40% at fault	Yes, reduced by 40%	Yes, reduced by 40%
Recovery if you are 51% at fault	Yes, reduced by 51%	Barred
90/180-day serious injury category	Available	Removed from Insurance Law § 5102(d)
Order of jury questions	Injury and fault weighed together	Fault decided first, then serious injury
Slip and fall, premises, construction cases	Pure comparative fault	Unchanged, still pure comparative fault

The thing most people miss: the rule is triggered by the date the lawsuit is filed, not the date of the crash.

Does the New Rule Apply If My Accident Happened Before May 2026?

It can, yes. The trigger is when the action is commenced.

New York generally gives you three years from the crash to file a personal injury lawsuit under CPLR § 214. So a collision from 2024 that has not been filed yet would be commenced today, which puts it under the 2026 rules.

That is the part almost nobody explains. People assume the law that existed on the day of their wreck follows their case. Whether your particular claim falls on one side of that line or the other is a legal question, and it depends on facts a lawyer needs to look at. Please do not assume either way.

What Is the 51 Percent Rule, and What Exactly Do You Lose?

Under CPLR § 1411(b), your claim is barred if your culpable conduct is greater than the culpable conduct of the person you are suing, or greater than the combined culpable conduct of the people you are suing.

Read that word “combined” twice. It matters more than anything else in this article.

Example of how the math works:

• You are 40% at fault. Driver B is 60% at fault. You recover, reduced by 40%.
• You are 40% at fault. Driver B is 30% and a delivery company is 30%. Their combined share is 60%. You still recover.
• You are 55% at fault. Driver B is 45%. You are barred.

So identifying every party who contributed can move a case from barred to viable. That could be a second driver, a vehicle owner, a trucking or delivery company, a contractor running a work zone, or a public agency responsible for the road.

Here is where the law is honestly unsettled. Legal analysts who defend insurance companies have published different readings of subsection (b). Some read it as ending the case entirely once a jury crosses that line. Others read it as limiting pain and suffering damages. No New York court has ruled on the question yet. Anyone who tells you they know for certain how a judge will apply it is guessing.

We are not going to guess in a blog post. If your fault percentage is anywhere near half, that is a conversation to have with a trial attorney, not something to settle by reading.

Is New York Still a Pure Comparative Negligence State?

For most injury cases, yes. For car accident cases, no.

CPLR § 1411(a) still applies the old rule to personal injury, property damage, and wrongful death claims in general. The new bar in subsection (b) only reaches personal injury actions subject to Article 51 of the Insurance Law, which is the no-fault framework covering motor vehicle claims.

That creates something New York has never had before: one crash can be split across two standards. Your injury claim may sit under the new bar while your property damage claim stays under the old rule. Claims for injuries resulting in death sit outside the new bar as well.

Does Not Wearing a Seat Belt Count as Being at Fault?

No. Not in New York. This surprises people, and it is one of the more useful things to know right now.

In Spier v. Barker, 35 N.Y.2d 444 (1974), the New York Court of Appeals held that failing to use an available seat belt goes to the reduction of damages, not to liability. The court found no causal link between not buckling up and the crash itself, so it could not amount to contributory negligence. The burden sits with the defendant to prove that non-use actually made the injuries worse.

That distinction now carries real weight. If seat belt non-use is not culpable conduct, it does not push your percentage toward the 51% line. It is a damages argument, and a contested one.

Who Actually Decides Your Fault Percentage?

Not the adjuster. A jury does, or a judge, or the parties through settlement.

An insurance company’s internal determination is not binding if the case goes to trial. Comparative fault is an affirmative defense under CPLR § 1412, which means the other side has to plead it and prove it. You do not walk in owing anyone proof of your own innocence.

Three things get confused with a fault finding and are not one:

• A police report notation
• A DMV crash code
• A no-fault benefits decision

We wrote about this in more detail, including how a single crash code gets misread as blame, in our piece on what a “left roadway” code really means on your claim.

If an adjuster has already put a percentage on you, call us at 914-274-4812 before you respond to it in writing. Once fault decides whether you recover at all instead of just how much, an early recorded statement carries far more weight than it used to.

What Happened to the 90/180-Day Serious Injury Rule?

It was deleted from Insurance Law § 5102(d) by the same 2026 legislation.

That category used to let people qualify for pain and suffering damages by showing a non-permanent injury kept them from their usual daily activities for at least 90 of the 180 days after a crash. It is gone for actions commenced on or after May 26, 2026.

Eight categories remain in § 5102(d): death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, and significant limitation of use of a body function or system.

The people most affected are those with soft tissue and whiplash-type injuries that resolve over time. If the 90/180 category was the only route your medical records supported, the path is narrower now.

Your no-fault benefits are a separate matter. Basic economic loss coverage under Insurance Law § 5102 pays medical bills and a portion of lost wages regardless of who caused the crash, with a statutory floor of $50,000 per person. There are exclusions, including situations involving intoxication or intentional acts, and motorcyclists are treated differently. Check your own policy terms or ask an attorney.

One deadline we tell everyone about, immediately: written notice to the no-fault insurer is due within 30 days of the crash under 11 NYCRR 65-1.1. Health care bills are due within 45 days of treatment and lost earnings claims within 90 days, per the DFS Regulation 68 FAQ. Missing the 30-day notice can cost you benefits outright.

Why Did New York Change This Law?

Both sides of this argument are worth hearing, so here they are.

Governor Kathy Hochul signed the reforms as part of the FY27 budget. Her office described the goal as lowering auto insurance costs by targeting fraud, staged crashes, and litigation expenses. In the May 27, 2026 announcement, the Governor called the package “a win for every New Yorker who depends on a car.”

“These hardfought reforms are a win for every New Yorker who depends on a car to go to work or drop their kids at school.” Governor Kathy Hochul, Office of the Governor press release, May 27, 2026

The same release notes that New Yorkers’ insurance rates average slightly more than $4,000 a year, roughly $1,500 above the national average.

Assemblymember David Weprin, quoted in that release, said the reforms keep protections in place so New Yorkers who are legitimately injured can still access compensation.

The New York State Trial Lawyers Association opposed the package and described it as a “victim tax” that removes legal rights from crash victims for the benefit of insurers.

There is a measurable follow-up worth watching. DFS added a new Exhibit TR-1 Automobile Tort Reform Calculation to its rate filing checklist, requiring insurers to state the percentage decrease in expected claims and loss adjustment expenses from the reforms and explain how they calculated it. Pending filings had to be amended by August 31, 2026. In other words, injured New Yorkers gave up legal ground and insurers now have to show the state what that was worth.

Whether individual premiums actually fall has not been established. We are not going to promise you that they will.

Fewer Deaths, Same Number of Injuries, Higher Legal Bar

New York City recorded 205 traffic deaths in 2025, the fewest since record keeping began in 1910, according to the NYC Department of Transportation. That is a 19 percent drop from 253 in 2024 and 31 percent below the count when Vision Zero started in 2014.

Injuries tell a different story. As of December 15, 2025, total injuries were 47,557, down 7.7 percent from 51,540 the year before. Serious injuries were 2,947, down 2.8 percent from 3,031.

So tens of thousands of people are still getting hurt every year in the five boroughs, and they now face a tougher standard than they would have in May.

NYPD collision data for January 2025 shows driver inattention or distraction cited in 1,741 vehicles involved in injury and fatal crashes, ahead of failure to yield right of way at 469 and following too closely at 392. Those three findings are exactly what insurers reach for when they want to shift blame onto an injured driver.

Statewide, the New York State Department of Health reports that motor vehicle crashes are the leading cause of injury-related death, and that on average three New Yorkers die each day in a traffic crash.

The Gershon Fault-Line Review: Four Checks We Run on a Shared-Fault Case

This is the sequence we work through when someone comes to us worried they are too much at fault to have a case.

1. The date check. When will the action be commenced, and which version of CPLR § 1411 governs it? Filing timing is now a strategic question, not a clerical one.
2. The defendant check. Who else can properly be named? Because the bar compares your conduct against the combined conduct of everyone you sue, a second or third defendant can change the outcome entirely.
3. The conduct check. Which allegations against you are actually culpable conduct, and which are something else? Seat belt use under Spier, a crash code, or an adjuster’s opinion each get sorted differently.
4. The threshold check. With the 90/180-day category deleted, which of the remaining eight § 5102(d) categories does the medical record support, and what is missing from it?

We should also be straight with you about one open question. In Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), the Court of Appeals held that a plaintiff does not have to prove freedom from comparative fault to win partial summary judgment on liability. How that holding interacts with the new requirement that fault be decided first has not been addressed by any court yet.

A Shared-Fault Case From Our Own Files

Among the results listed on our verdicts and settlements page is Agustin v. Dependable Auto Shippers, Inc. et al, a $500,000 settlement reached during trial in New York Supreme Court. The fact pattern was a pedestrian dart out in traffic, with a comminuted ankle fracture requiring open reduction internal fixation and later hardware removal.

That is a case where the injured person’s own movement was squarely in dispute, and it still produced a recovery. It is the kind of file that gets settled by evidence and trial readiness rather than by an adjuster’s first opinion.

Prior results do not guarantee a similar outcome. Every case turns on its own facts.

Talk to Us Before You Accept Someone Else’s Version of the Crash

If the other side’s insurer has already decided you were mostly at fault, that number is now doing far more work than it used to. Under the old rule it shaved your recovery. Under the new one it can end the claim.

Evidence that settles fault percentages has become the whole ballgame. Vehicle data recorders, scene measurements, video, and reconstruction now decide outcomes, and that material does not stay available for long.

The Law Offices of Norman Gershon has recovered more than $100 million for clients since 1991, and Norman is the attorney other lawyers call when a case needs to be tried. We serve Westchester County and all five boroughs, with offices at 1 Barker Avenue in White Plains and 60 June Road in North Salem. Consultations are free, and we speak Spanish.

Call 914-274-4812 to have your crash reviewed under the current law, not the version still floating around the internet.

Frequently Asked Questions

I was told I could be 99% at fault and still recover. Is that wrong now? For a car accident lawsuit filed on or after May 26, 2026, yes, that is outdated. It remains accurate for most non-vehicle injury claims under CPLR § 1411(a), which was not changed.

Does this new rule apply to slip and fall or construction cases? No. The bar in CPLR § 1411(b) reaches only personal injury actions subject to Insurance Law Article 51. Other injury claims stay under pure comparative fault.

Can I still get my medical bills covered if the crash was mostly my fault? No-fault benefits pay basic economic loss regardless of fault, with a statutory floor of $50,000 per person under Insurance Law § 5102. Exclusions apply, including intoxication and intentional acts, and motorcyclists are treated differently. Verify your specific coverage with your insurer or an attorney.

What is the $100,000 cap I keep reading about? Insurance Law § 5104(d) caps non-economic damages at $100,000 for a narrow group of at-fault injured drivers: those operating uninsured vehicles they were responsible for insuring (with an exception for lapses under 30 days), those operating while impaired and convicted of that offense, and those operating during a felony or flight from one and convicted of it. It does not apply to actions for injuries resulting in death.

Does the new bar apply to wrongful death claims? The reforms apply to motor vehicle actions commenced on or after passage other than those involving death or property damage. If you lost a family member, the analysis is different and worth a direct conversation.

Should I tell the other driver’s insurance company my version of what happened? Speak with an attorney first. Fault statements now carry a different weight than they did in May, and a recorded statement is hard to walk back.

How long do I have to file a car accident lawsuit in New York? Generally three years from the crash under CPLR § 214, though shorter deadlines apply to claims against public entities. The no-fault notice deadline is far shorter at 30 days.

Do I need a lawyer if I was partly at fault? That is exactly the situation where it matters most. Fault allocation used to reduce a recovery. Now it can decide whether one exists.

This article is general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship. New York’s motor vehicle fault rules changed on May 26, 2026 and have not yet been interpreted by the courts, so the law in this area may develop further. Attorney advertising.