New York Personal Injury Articles & FAQ

Below you will find a collection of articles that answer your most pressing questions about the personal injury claim process in New York. I of course invite you to contact me anytime for a free consultation, during which I will answer any specific questions you have about your case.

May 15, 2020 | By Anthony Ferrante

How long does it take to settle a personal injury claim?

How long will my personal injury case take to settle or resolve at trial? This is one of the questions that New York accident lawyers field more than any other. The truth is there really is no one answer, and the best estimate is that a case can last anywhere between 6 months and 6 years. Every case is completely different. It is important to remember that at the center of every claim for personal injuries is a real person who is now forced to live with the effects of those injuries on a daily basis. And a big component of the “value” of this claim comes from how well that person recovers from the injury. So before you can settle any claim, it is in the injured person’s best interest that they have a good handle on their prognosis, which is the likelihood of recovery. Every injury case is completely different, and depending on who and where you must sue, the statute of limitations must be kept in mind. As long as these time limits are followed, a case can be resolved early on in the process, deep in the litigation, or at points along the way. Typical Timeline of a Personal Injury Case While every case differs in how long it takes to settle, the timeline for a personal injury case is usually the same. It generally goes as follows. After an Accident, Seek Medical Treatment After any accident, you must seek medical attention as soon as possible. Even if you do not think you have been harmed, some injuries may not be evident right away. Receiving medical treatment not only helps your wellbeing but also provides evidence to be used for your personal injury case. Consult with a New York Personal Injury Attorney Meeting with an attorney gives you a chance to ask questions and get all of the information you need. This also allows the attorney to learn about your case to provide you with the best legal advice. If your attorney feels you have a strong case, you may proceed with a representation agreement and start working on your case right away. Your Lawyer Prepares and Files Your Personal Injury Lawsuit Your attorney will draft and file a formal complaint and submit it to the court. The defendant will then be served with the paperwork and has a limited amount of time to file an answer to your complaint. Discovery Begins After you file your lawsuit, both parties begin the discovery process. Discovery allows both parties to investigate the other side’s legal claims. The discovery process includes: Interrogatories, Depositions, and Requests for documents. The time discovery takes can vary depending on the type of case and how much information is sought. Mediation Once all discovery has concluded, both parties may attempt to settle. This typically leads to mediation, where both parties meet with a mediator to try to reach an agreeable settlement. The mediator goes back and forth between both parties until you reach a settlement. If both parties agree, the settlement will be put in writing and presented to the court to conclude the case. If you don’t reach an agreement, your case will go to trial. Trial At trial, all of the information gathered during discovery will be presented to a jury. The jury will then deliberate and decide on an award amount. After the trial, your case will be concluded. Cases Resolved in Claim Some cases can be resolved in claim, which is early on in the process and before a lawsuit is started. Even these cases can take at a minimum 6 months up to 1 year or more to settle because, as discussed above, you must have a good idea about the injured person’s recovery. It is often difficult to settle a case in claim because either the insurance carrier will make smaller, nuisance value offers of settlement or the injured person has not yet completed their course of treatment. Cases Settled During Litigation Other cases are settled during litigation. A “litigated” case is one that has gone through the court process: the opening “pleadings,” document discovery, depositions and motion practice, and up to trial. It is not uncommon that an insurance company will refuse to make any reasonable offers of settlement until you’ve gone deep into this process. A case that is litigated will last, on average, between 3-4 years, perhaps longer. Car accident lawsuits usually fit into the 3-4 year window depending on the County where the case is pending. More complicated matters, including any kind of premises matter – a trip and fall or slip and fall accident case – or construction site accidents, can extend longer. But it is also true that each of these types of cases can be resolved within 1-2 years. The length of a case depends on many different factors including: How extensive the injuries are; The amount of the insurance policy; The insurance carrier; The defendant’s attorneys; and The court you are in. For this reason the only answer to this question is that every case is different. Settlement Delays Usually, there are three main reasons why your personal injury settlement may be delayed: Your claim involves a large amount of damages and compensation; There are legal or factual issues with your case; or You have not reached maximum medical improvement. Maximum medical improvement simply means you have improved as much as you’re going to improve from injuries sustained during the incident. Achieving maximum medical improvement is imperative, as it allows your attorney to truly valuate your medical expenses and damages. What Should I Do If My Case Isn’t Receiving Adequate Attention? If you feel your current attorney is not giving your case the attention it deserves, reach out to your attorney and discuss this with them. If you still feel unsure, get a second opinion from a different attorney. Personal Injury in New York? Reach Out to Anthony Ferrante 24/7 for a Free Case Review Free Case Review ...

May 14, 2020 | By Anthony Ferrante

The Statute of Limitations for Personal Injury Cases in New York

How long do I have to bring a personal injury claim in the state of New York? A statute of limitations puts a time limit on filing a lawsuit. This time clock usually begins to run on the date of the incident for which you are seeking damages for your injuries. This deadline applies to almost all types of personal injury cases, including negligence and intentional torts. If you are involved in an auto collision with a privately owned and operated vehicle in New York, the statute of limitations is three (3) years from the date of the accident. In other words, if your accident occurred on January 1, 2020, you would have until January 1, 2023 to file your lawsuit. Exceptions to the NY Statute of Limitations There are certain exceptions to the typical three-year statute of limitations. These exceptions may delay, pause, or shorten the time limitation imposed for personal injury cases. Legal Disabilities If the injured person looking to file a personal injury lawsuit is a minor under the age of 18 or of unsound mind, they are under a legal disability. In these cases, the three-year time clock will not begin to run until all disabilities are lifted. The clock will then start to run when a minor turns 18 or a person of unsound mind is declared sane. Defendant Leaves the State of New York If the defendant, or person who caused the injury, leaves the State of New York after the injury occurred but before the lawsuit is filed, and is gone for four months or longer, the time clock will not begin to run until after this person has returned. The Discovery Rule Under this rule, the statute of limitations will not begin to run until the injured person has discovered or should have discovered the injury. This can extend the statute of limitations when the injury or harm is not open and obvious. Municipalities This time frame is different when bringing a case against a municipality. A municipality is any local government entity. So, for example, if you are involved in a crash with a City of New York Department of Sanitation truck, a New York City Parks Department pick-up truck, or a New York City Transit Authority bus the statute is different – and shorter. All of these municipal entities are protected by stronger laws that shorten that statute of limitations. In most of these scenarios, you have ninety (90) days from the date of the accident to file a Notice of Claim. Certain Public Authorities, including the Port Authority of New York and New Jersey and the Long Island Railroad, have different and shorter statutes. After filing a Notice of Claim, you must appear for a hearing and a medical exam, if requested. Only after you pass those hurdles, called “conditions precedent” to bringing a lawsuit, will you be allowed to sue the municipality. These rules hold true not only for the City of New York and New York City Transit Authority, but for all municipal entities inside and outside of the City of New York, as well as Towns and Villages in the surrounding counties of Nassau, Suffolk, and Westchester. Speak with an Attorney Right Away to Prevent Missing the Statute of Limitations Deadline If the three-year statute of limitations has run and you file your personal injury lawsuit, the other side, or defendant, will file a “motion to dismiss.” A motion to dismiss is filed when either party believes that the opposing party’s claim is legally invalid. In this case, the defendant would file a motion to dismiss, pointing out to the court that the statute of limitations has run. In most cases, this will end in your case being dismissed, and you will no longer have a chance to seek damages for your injuries. If you have been injured, it is wise to seek legal counsel as soon as possible. The sooner you contact a personal injury attorney, the sooner they can begin working on your case, ensuring your claim is filed timely. Injured in a New York? Reach Out to Anthony Ferrante 24/7 for a Free Case Review Free Case Review

May 10, 2020 | By Anthony Ferrante

New York’s No-Fault Insurance System

Is New York a No-Fault Insurance State? What Does that Mean? Yes. New York is a No-Fault state. This means that we have a system of rules in place to make sure that people injured in car accidents have medical, lost wage and out of pocket insurance coverage. The term “No fault” has proven to be a bit confusing to people who have never dealt with this type of claim, however. The important thing to know is that it does NOT mean that nobody can be held at fault for a car crash, nor does it mean that you get money for injuries even if you caused the accident. No fault is simply medical insurance coverage for persons injured in a car crash. No-fault coverage is almost counter-intuitive. The reason is because if you are in an accident and it’s not your fault, then it doesn’t make sense that your own insurance company is going to be paying for your medical bills. But that is the rule. The purpose is to make sure that people who are injured and need treatment can get the treatment. Doctors who did not know how they were going to be paid would refuse to offer treat. No fault was designed to provide certainty to those who are injured and the doctors who treat them. So who pays no-fault after an accident? If you were driving a car or a passenger in a car, that car’s auto insurance is the no-fault carrier; If you were a pedestrian struck by a car, the auto insurance for the car who struck you is the no-fault carrier; If you were riding a bicycle and were struck by a car, the auto insurance for the car who struck you is the no-fault carrier; If you were a passenger on a bus, then your own household car insurance is the no-fault carrier. If neither you nor any household family members own a car, then the bus is responsible to provide no-fault coverage; Our no-fault system is intricate and has highly specialized rules. The most important rules to be aware of involve filing and submission deadlines, as they are hard deadlines and almost always unforgiving. A no-fault application must be filed with the appropriate no-fault provider within 30 days of an accident. All medical bills must be submitted to the no-fault carrier within 45 days of the treatment. Other expenses, such as out of pocket costs for transportation and prescriptions, lost wages or household help must be submitted within 90 days of being incurred. This is only the tip of the proverbial iceberg when it comes to no-fault, but provides an outline of what no-fault is here in New York.

May 9, 2020 | By Anthony Ferrante

Understanding How Much a Personal Injury Lawyer Will Charge

How much will a personal injury lawyer charge me for their services? Generally, New York personal injury lawyers work on a contingency basis. This is the case whether you were involved in a car accident in Brooklyn or a trip and fall in the Bronx. This means that your personal injury lawyer does not earn a fee until the case has resolved and there was a positive money recovery. In other words in order for an injury lawyer to actually get paid, the client will be walking away from the case with money via settlement or verdict. Here in New York the accident lawyer’s fee is almost always one third (1/3) of the sum recovered, or 33.33%. The most notable exception to the 1/3 fee is in a medical malpractice case where there is a sliding scale, which is not covered here. A recent change in New York personal injury law has created two separate options for how the 1/3 contingency fee is calculated, both of which we will go over, but the important thing to remember is that the personal injury attorney’s fee will be 1/3 (33.33%) regardless of which option you choose. This will always be consistent. Payment Option 1: Percentage of Net Recovery Under the first option the case expenses are taken off of the top, meaning they are subtracted from the full personal injury settlement amount. The 1/3 contingency fee is taken from what remains. This option can also be described as 1/3 of the net recovery or 1/3 of the profit of the case. In this scenario the client retains some risk because if the case is not successful the attorney will have the right to charge the client for the expenses, which are usually paid out of pocket by the attorney. So this means that if the case is lost, then the attorney has the right to send a bill for whatever money was spent to move the case forward. In reality this “risk” is not a very significant one as (1) the vast majority of accepted cases are settled; and (2) most firms would never send a bill to a client after they’ve lost their case. That would really be kicking someone while they are down (but the attorney does the right to do so under this option). In return for taking this risk the client will see a small savings at the end of the case. The fee is calculated after the expenses are taken off of the top so the accident attorney shares in paying the expenses in this scenario. It amounts to a savings of 1/3 of the expenses, meaning that if the expenses were $1,500.00 on your case, you would get $500.00 more at the end under Option 1. Injured in New York? Reach Out to Anthony Ferrante 24/7 for a Free Case Review Free Case Review Payment Option 2: Percentage of Total Recovery The second option changes the equation a little bit. The 1/3 fee is taken from the total recovery instead the net recovery. This means that the injury attorney’s fee is 1/3 of the full settlement amount. And from the remainder the client is responsible to repay the attorney for the case expenses. Under this option there is no risk that the client will receive a bill for the case expenses if you lose. The trade-off is that the client will see a little bit less money if you win. Here, as the expenses are paid out of your portion of the settlement proceeds the attorney doesn’t share in the ultimate cost. So you are losing out on the 1/3 contribution towards expenses that you would get under Option 1. As described above, if the expenses on your case were $1,500.00, you would see $500.00 less under Option 2. How Expenses are Covered The expenses in a case are generally advanced by the personal injury lawyer handling the case. In order to move the case forward money must be spent to investigate the incident, hire investigators and/or an engineer, gather medical records, file a lawsuit, serve the defendants, pay court filing fees, take depositions, create demonstrative evidence and prepare the case for trial. All of these expenses must be ultimately repaid at the conclusion of the case. It is essentially a zero-interest loan. The average expenses in personal injury case varies depending on the type of case and how far it was pushed. Obviously the expenses on a simple car accident case that was settled within 6 months will be much less than the expenses on a complex construction site accident case that has been fully litigated for 4 years. Examples of Personal Injury Lawyer Fees Client A was involved in a rear-end car accident. She suffered a herniated disc in her neck and a torn meniscus in her knee. The insurance company did not agree that her injuries were serious under New York law and offered no money. A lawsuit was started against the owner and driver of the vehicle, the defendants were served and the case was litigated through depositions. After pushing the case close to trial a reasonable settlement offer was made and accepted. The expenses in this case may range between approximately $1,000.00 – $1,500.00. Client B was caused to trip and fall over a raised sidewalk in Manhattan. She fractured or broke her wrist and required an open reduction internal fixation (ORIF) surgery. An engineer was hired to investigate the accident location and offer an opinion on the dangerous sidewalk. The case was litigated against the owner of the building, the management company, the ground floor tenant and a contractor who previously performed work in that area. A lawsuit was started, the defendants were served, depositions of all of these parties were held and then the case was settled at a mediation. The expenses in this case may range between $3,500.00 – $5,000.00. These are only examples and every case is completely different.

Oct 11, 2018 | By Anthony Ferrante

What is expected of a personal injury client throughout the course of a case?

The most important thing that a personal injury client must do is focus on getting better. Address your medical issues, see the appropriate doctors, make sure to keep your appointments and undergo the objective tests that are recommended. In the process of getting better, you will establish your case. The focus should be on your health and not on the case – especially at the outset. Aside from that, a personal injury client is expected to communicate with their attorney and staff. Let us know if you found a new doctor or are getting a different test. Let us know if the doctor has discharged you. Getting bills at home? Please let us know. The more information your accident lawyer has, the better. If your case is going through the litigation process you will be required to come in for a deposition, a medical exam with at least one doctor on behalf of the defendants and the trial. A deposition is a question and answer session where the defendant’s lawyers will question you about your background, employment, the day of the incident, your injuries and treatment history, and how you are feeling today. This is usually completed in 2-4 hours. Your injury lawyer will prepare you for questioning and sit with you for the duration. You will then be required to appear for medical exam (or exams) by a doctor (or multiple doctors) chosen by the defendants. If your case goes to trial, you will be expected to be present in the courtroom for the duration. The trial can take anywhere from 3 days to 3 weeks or more. These are the obligations of a personal injury client whose case has been fully litigated. Of course, any case can resolve early in the process which would lessen this involvement, but there could also be additional times where an attorney must speak to the client, or set an in person meeting. The client should make themselves available for that as well.

Oct 11, 2018 | By Anthony Ferrante

Can I fire my personal injury lawyer?

The straight answer is yes – you can fire your current personal injury attorney. You can let them go for any reason or for no reason at all. But think long and hard before you make that decision. Most clients who are unhappy with their attorney cite a lack of communication as the main reason. People want to know where their case is heading and what their accident lawyer is doing to move it forward. My experience is that many of these issues can be resolved during a sit down face to face meeting with the injury attorney handling the case. When you chose your injury attorney, you did so for a good reason. Whether it was through a referral from a trusted colleague or friend or through your own research. The personal injury lawyer you initially hired had the opportunity to investigate it from the outset putting them in a good position to move the case forward. Not to say that you should never fire your accident lawyer, but before you do that it is usually in your best interests to at least try to reconcile whatever problems you are having with their office. If you can’t even have that sit down meeting, then chances are that your decision to find a new accident lawyer to handle your injury case is made for you. In that scenario, the process of hiring a new personal injury attorney is quite simple really. You will not need to speak to your old lawyer again. You will select your new accident attorney with whom you feel comfortable. Then that new attorney will inform the old accident lawyer that they are no longer working on the case. Your personal injury file will then be forwarded to your new file after paying for costs and disbursements. One important thing to note is that if you do decide to hire a new attorney, you would not have to pay two separate attorneys’ fees. The same 1/3 contingency would be split between the accident lawyers who worked on the case and the overall cost for you would not change.

Oct 11, 2018 | By Anthony Ferrante

The most critical questions to ask your personal injury lawyer

Asking questions during the initial call or meeting is the best way to make sure that you learn a little bit about the accident attorney who you intend to hire. The most important thing to come away with is a level of comfort and trust in your personal injury attorney. Without trust, the relationship will not work. Some questions you should ask: Do you have any experience handling cases like this? You want to be sure that the personal injury attorney has seen this type of case before. It is important to have experience with similar fact patterns so that potential issues can be addressed before they arise, not after. Also, an accident lawyer who has handled similar cases may have experience with the insurance adjusters or the attorneys on the other side. Sometimes those relationships allow the case to be moved a little faster and smoother. Who is going to handle my case? Who in your office will be assigned to my case? Will it be a paralegal? Will it be an attorney? Will it be a team of people? The reason for that is because you want to have a constant point of contact. You want your attorney and his/her team to be informed and up to date with respect to your recovery. Also as a client, you want to be kept to date as to the case status. How will the attorney get paid? Attorneys who handle these types of cases are generally paid on a contingency basis. If you’ve never dealt with this type of arrangement, you should have it explained. Potential clients should also know what to expect regarding expenses. It is beneficial for both sides to explore these issues at the outset. Many people will want to know “How long is my case going to take?” or “How much am I going to get?” The truth of the matter is that any personal injury lawyer who is worth their salt is not going to be able to answer that question because on day one, when you’re signing a case up, you’re just unable to really forecast the future. And it’s best not to guess.

Apr 23, 2017 | By Anthony Ferrante

Can I get compensation for minor injuries?

A wise person once told me that a minor injury is an injury that happens to somebody else. That aside, you can get compensation for injuries even if they are not so significant as to require a surgical procedure, casting, or something more significant. You must still prove that your injuries are “serious” under our law, but that can be accomplished with consistent medical care. For the most part, all you need to do is try to get better. In the process of trying to heal yourself, and trying to get the treatment that you need to help your body recover from the injuries that you sustained in the accident, you are documenting your injuries. An injury that didn’t exist before an accident that is now causing you limitations, even if they are not so significant as to prevent you from going to work, can be serious under our law. If it affects your day to day life, forces you to take medication or think twice about bending down to tie your shoes, it may be compensable under our law. The way that you go about trying to prove it is with this consistent medical care, objective proof of an injury, and a doctor who will stand behind you.

Personal Injury FAQ