Personal Injury

Negligence: the legal theory behind almost every claim

To recover money in a New York personal injury case, you generally must prove four things: the defendant owed you a duty of care, the defendant breached that duty, the breach caused your injury, and you suffered actual damages. Drivers owe a duty to operate safely, property owners owe a duty to maintain reasonably safe premises, and doctors owe a duty to meet the accepted standard of care in their specialty.

Breach and causation are where most cases are won or lost. Insurance adjusters routinely concede that an accident happened while disputing that their insured's conduct caused it, or that your injuries stem from that specific incident rather than a prior condition. Building a clear causal chain with medical records, photographs, and witness statements early is what defeats that argument.

New York's pure comparative negligence rule

New York follows pure comparative negligence under CPLR § 1411. If you are found partly at fault for your own injury, your damages are reduced by your percentage of fault rather than eliminated. Even a plaintiff found 80 percent at fault can still recover the remaining 20 percent of their damages.

Insurance companies know this rule and use it aggressively, arguing you were distracted, not looking where you were walking, or ignored a posted warning, specifically to inflate your assigned percentage of fault and shrink the payout. An attorney who documents the scene and challenges those claims early prevents that percentage from ballooning unfairly.

Statutes of limitations you cannot afford to miss

Most personal injury claims in New York must be filed within three years of the date of injury under CPLR § 214. Claims against a city, county, or state agency are different: you generally must serve a notice of claim within 90 days of the incident and commence suit within one year and 90 days, under General Municipal Law § 50-e and § 50-i.

Medical malpractice claims run 2 years and 6 months, wrongful death claims run 2 years from the date of death, and claims involving a minor are tolled until the child turns 18. Missing any of these windows can permanently bar an otherwise strong case, which is why early legal advice matters even if you are unsure whether you want to pursue a claim.

• 3 years, general negligence (CPLR 214)
• 90-day notice of claim against government entities
• 2 years 6 months, medical malpractice
• 2 years, wrongful death
• Tolled for minors until age 18
• 1 year, certain intentional torts

New York's no-fault system for car accidents

If your injury comes from a motor vehicle accident, New York's No-Fault Law (Insurance Law Article 51) requires your own auto insurer to pay your first $50,000 in medical bills and lost wages regardless of who caused the crash. You must file a no-fault application within 30 days of the accident.

To step outside no-fault and sue the at-fault driver for pain and suffering, you must meet the 'serious injury' threshold defined in Insurance Law § 5102(d), which includes fractures, permanent limitation of use, significant disfigurement, or a disability lasting 90 of the first 180 days after the accident. Insurers dispute this threshold constantly, so thorough, consistent medical documentation is essential.

How damages are calculated

Economic damages, medical bills, lost wages, future earning capacity, and out-of-pocket costs, are calculated from bills, pay stubs, tax returns, and, in serious cases, testimony from a vocational economist. Non-economic damages, pain and suffering, loss of enjoyment of life, and disfigurement, are harder to quantify and depend heavily on the severity, permanence, and visibility of the injury.

In wrongful death cases, New York's Estates, Powers and Trusts Law § 5-4.1 limits recovery to the pecuniary (financial) loss suffered by distributees, such as lost income and support, rather than compensating the family's grief directly, which surprises many clients until we walk them through how the calculation actually works.

Common defense tactics and how we counter them

Insurance defense counsel routinely argues pre-existing conditions, gaps in treatment, minor property damage as proof of minor injury, and surveillance footage suggesting you are exaggerating your limitations. Each of these arguments has a standard, evidence-based rebuttal that a prepared plaintiff's attorney builds into the file from the start.

Recorded statements taken by an adjuster shortly after the incident are a favorite tool, phrased casually but designed to lock in language that can later be used to argue you admitted fault or downplayed your injuries. Refusing that recorded statement and directing all communication through counsel closes off one of the defense's easiest openings.

Settlement negotiation and the demand package

Most personal injury cases resolve through negotiation rather than trial. A strong demand package includes a narrative of liability, complete medical records and bills, wage-loss documentation, and, where appropriate, a life-care plan or vocational assessment. Insurers value cases based on the strength of the liability evidence as much as the size of the medical bills.

We do not send a lowball-friendly demand just to get an offer on the table quickly. Cases that are prepared for trial from the outset, with witnesses located, experts retained, and records organized, consistently settle for more than cases that are packaged for a fast, easy resolution.

What to expect if the case goes to litigation

If a fair settlement is not offered, we file suit and move into discovery: exchanging medical records, written interrogatories, and depositions of the parties and key witnesses. Cases can also involve independent medical examinations (IMEs) requested by the defense, which we prepare clients for carefully.

Litigation in New York courts typically takes 1 to 3 years depending on the county and complexity, though most cases still settle before a jury is ever selected, often once a trial date is firmly set and both sides recognize the case is truly ready to be tried.