You’ve been injured in an automobile accident, whether as a driver, passenger, or even a pedestrian. Maybe you’ve applied for insurance benefits, or maybe you aren’t even aware of what you’re entitled to under the “No-Fault Law.” Do you have grounds for a lawsuit, or is there another way to get the compensation you deserve?
Do I have a case?
In New York, the “No-Fault Law” requires that every vehicle owner have insurance that compensates injured persons regardless of fault for up to $50,000 of “basic economic loss,” chiefly medical expenses and lost earnings. To recover beyond what no-fault insurance provides, such as for disability, pain and suffering, you must bring a lawsuit.
In New York, however, persons injured in automobile accidents cannot sue for pain and suffering unless they have a “serious injury” as defined by New York’s Insurance Law. Section 5102(d) of the Insurance Law defines the injuries that qualify as a “serious injury.”
Some, like a fracture, disfigurement, death, or dismemberment, are objective and easy to determine. Three other definitions of “serious injury” are broader, but more subjective:
- Permanent consequential limitation of use of a body organ or member
- Significant limitation of use of a body function or system
- 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
Do I still have time to bring a lawsuit?
New York’s statutes of limitations impose time limits for bringing a lawsuit. A claim for personal injury, including claims under the Labor Law, must be commenced within three years. If you miss the statute of limitations deadline you cannot bring a claim, even if the facts are on your side.
If your case involves the state or a local government — for example, if a government employee on official business caused the accident — then you face additional deadlines.
Where the State may be liable, you have only ninety days to do one of two things: either start a lawsuit by filing a Claim; or file a Notice of Intention to File A Claim, which lets you start an action within two years from the treatment complained of.
Where a city or local government may be liable, you have ninety days to file a Notice of Claim. This does not start an action, but filing the Notice lets you start an action within one year and ninety days of the date of accident.
What happens after a consultation?
The first step in any automobile accident investigation, even before bringing a lawsuit, is to review any accident reports or other documentation of the accident. Typically injured parties may have copies of the accident report if the police responded to the accident. If not, we can obtain them.
Critically important is the injured person’s medical records. They will do a great deal to show whether the injuries meet the legal threshold. If the client doesn’t have those records, he or she can authorize us to obtain them from their treating physicians.
We then examine the records, and if we see a basis to claim a “serious injury” we are able to represent you in a lawsuit seeking monetary compensation for pain and suffering.
Once a case is begun, there is extensive pretrial discovery. This is where the parties exchange all relevant evidence. The parties will also have to appear for depositions, and answer questions under oath. These are usually done in a conference room rather than in court, but the transcripts of such depositions can be evidence at trial. Injured parties also usually have to appear for an examination by a physician hired by the defendants, who are entitled to confirm the injuries claimed.
Pursuing a personal injury action usually requires retaining expert medical witnesses who can and will support the plaintiff’s claims at trial.
At the end of discovery — which can run a year or more — the parties will get a trial date. That will likely be months away, during which the parties might reach an agreement to settle the case, or one party might prevail in a motion for summary judgment and win the case without going to trial.
While automobile accident cases may settle before trial, it has been our experience that the best way to achieve a satisfactory settlement for a client is to be fully prepared and ready to proceed to trial.
If you think you may have a claim after an automobile accident, contact the DelliCarpini Law Firm for a free consultation. We’ll answer all your questions and determine whether you have a claim. Contact us online or call us at 516.307.8818.