In New York State, a party alleging negligence in a motor vehicle accident may only recover damages for pain and suffering if they have suffered a "serious injury" pursuant to Insurance Law § 5102(d) (see Ins. Law § 5104[a]; Pommells v. Perez, 4 NY3d 566, 830 N.E.2d 278, 797 N.Y.S.2d 380 ).
A serious injury is defined as follows:
A personal injury which results in 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; significant limitation of use of a body function or system; or a medically determined injury or impairment of a 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.
Ins. Law § 5102[d]. Subjective accounts of pain may not be the basis for a serious injury (Scheer v. Koubek, 70 NY2d 678, 512 N.E.2d 309, 518 N.Y.S.2d 788 ).