Frequently Asked Questions on Personal Injury by Birnbaum & Associates, P.C.

NY Law: Summary

Q: I was injured in an accident. How are damages computed?
I was injured in an accident. How are damages computed?

A: In a personal injury case, compensatory damages typically can cover all economic losses caused by the injury, including past and probable future medical expenses, loss of the earnings that you would have earned "but for" the injury, and, if the disability is permanent, the loss of future earnings through retirement. For children and persons without an earning history, courts often take into account probable earning capacity. In addition to economic loss, you may also be entitled to be compensated for non-economic losses, such as pain and suffering, emotional anguish, and loss of enjoyment of life.

Courts award damages in a single lump sum. The portion of the award that relates to potential future income and future medical expenses is often "discounted" to take into account the interest income that could be expected to be earned on the sum. Depending on the state you are in, the potential of future inflation, and the tax-free nature of compensatory damages may also be taken into account.

Q: New York Car Accident Law
New York Car Accident Law

A: In New York, a person must prove two main issues in any car accident claim. Most attorneys and insurance adjusters call these two issues "liability" and "damages."

Liability, or who was at fault; and the damages or amount of the loss; are the two most important factors in evaluating a potential auto case. The person must show that another party was negligent in the operation of their motor vehicle. Negligence is generally defined as a "failure to use reasonable care". In New York you must show that the damages you have sustained are great enough to meet the statutory requirements outlined below.

Q: Have I sustained a "serious injury" under NY Law or not?
Have I sustained a "serious injury" under NY Law or not?

A: The answers to this and other questions are even more complicated than they seem. Because the legislature has left all these terms in such an ambiguous state, the Courts have attempted to define all these terms through what is referred to as "case law" or judicial rulings. In other words, your attorney might be able to find a case that shows that because you missed work for more than eighty days, you have sustained a "serious injury"; or a case that shows that when you fractured or dislocated your shoulder and were diagnosed with a permanent loss in its range of motion, that your injury meets the "threshold".

Much of the analysis focuses around your medical diagnosis. An attorney will typically request an affidavit from a doctor or present your medical records in order to prove that you have sustained a "serious injury". Your case, however, will require a complicated legal argument. In these types of cases, you should always refer to an attorney in order to determine whether your claim is worth pursuing.

Q: The Right Automobile Insurance to Have
What Auto Insurance to Buy?

A: Every car in New York state is required to be registered and insured. The requirements of an insurance policy vary from state to state and you have many options available. In New York, the minimum bodily injury policy amount is $25,000 per person/$50,000 per occurrence. This means if you purchase insurance in this amount and you are sued, you are covered up to $25,000 for each person in the accident but only for a total of $50,000. Of course, you can purchase insurance with greater liability protection but as explained below when you do make sure that you purchase equivalent Uninsured/Underinsured Motorist coverage.

Another portion of your insurance policy is the Uninsured/Underinsured Motorist (UM/SUM) provision. This portion of the policy is often misunderstood and when you purchase the insurance your agent or broker does not inform you about this portion for one reason -- it costs them money! All policies contain the mandatory minimum of $25,000 per person/$50,000 per occurrence Uninsured/Underinsured Motorist Coverage. This portion of your insurance policy is designed to protect you and your family in the event you sustain injury as a result of an automobile accident where the party at fault has no insurance or is unknown. In such a case your insurance company will assume the role of paying your medical bills and pain & suffering award up to the $25,000.00 per person/$50,000.00 per occurrence limit.

If you presently maintain an insurance policy with liability limits greater than the minimum $25,000.00/$50,000.00 (i.e.., $50,000.00/$100.000.00 or higher) contact your insurance company immediately to check that your UM/SUM limits are equal to your liability limits. Many times when you purchase your policy you are not told that for just a few dollars extra on your premium you can protect yourself and your family with additional UM/SUM limits up to the amounts of your bodily injury limits. Therefore, if you have $50,000 per person/$100,000 per occurrence (or higher) bodily injury coverage you must ask you insurance agent for $50,000 per person/$100,000 per occurrence UM/SUM coverage. In the event you have higher liability coverage you should always have the UM/SUM coverage equal the liability limits of your policy.

It cannot be stated how important it is to confirm with your insurance company that your UM/SUM policy limits match your bodily injury policy limits. After reading this I would encourage you to review the declarations page of your insurance policy. If you want more information about your insurance coverage, click here or call us at 212-684-5050

Q: How long do I have to start a lawsuit in New York if I have been injured?
How long do I have to start a lawsuit in New York if I have been injured?

A: New York sets strict time limits to begin a lawsuit after you have been hurt. Each limitations period is different based upon the facts of your case, but it is in some situations you may have as little as ninety (90) days. It is important to contact us immediately so we may protect your interests.

Q: I was seriously hurt in an accident, but I can’t come to your office because of my injuries. Can I still bring a lawsuit?
I was seriously hurt in an accident, but I can’t come to your office because of my injuries. Can I still bring a lawsuit?

A: If you are not able to come to our office, we will gladly come to you to discuss your case. If you contact us not only will you speak to an attorney, one of the partners will come to meet with you personally at your earliest convenience.

Q: How do I know if I have a case?
How do I know if I have a case?

A: Simply contact us and ask. We are always willing to take the time to discuss any situation which you feel you have a legal remedy. We will let you know if you have a case, who it is against, and we will conduct all necessary investigation so you may prove your case in court.

Q: What are the requirements for motor vehicle liability insurance in NY State?
What are the requirements for motor vehicle liability insurance in NY State?

A: A motor vehicle registered in NYS must have liability insurance. Insurance coverage must be a minimum of $25,000/50,000 for injury, $50,000/100,000 for death, and $10,000 for property damage caused by any one accident. New York State is a no-fault state. The liability coverage must remain in effect while the registration is valid, even if the vehicle is not used (except motorcycles).

1.The liability coverage must be NYS insurance coverage, issued by a company authorized to do business in NYS and licensed by the NYS Insurance Department. Out-of-state insurance coverage of any type is NEVER acceptable or valid. If your vehicle is registered in NYS, the liability insurance coverage must be NYS insurance coverage.

2.Liability coverage must be issued in the name of the registrant and must remain in the name of the registrant at all times. A change on the insurance to a name different from the registrant causes a lapse in insurance coverage, and the driver license of the registrant and the registration is suspended.

3.You must show a NYS Insurance Identification Card when you apply for a vehicle registration. If a police officer requests your proof of insurance, you must show your Insurance Identification Card. The DMV does not accept any out-of-state insurance documents. The Insurance Identification Card must have the same name as the registration application and must have a barcode. The Insurance Identification Card can be a copy or a fix, but the barcode must be readable by a DMV barcode reader. The Insurance Identification Card must be presented within 45 days of the effective date of the insurance coverage. The insurance company must also file an electronic notice of insurance coverage with the DMV to verify the liability coverage. (The agent or broker cannot file this notice.) Your Insurance Identification Card and the electronic notice of insurance coverage together verify your insurance coverage. An Insurance Identification Card only does not prove liability coverage.

Q: Injury on someone else's property.
I fell down and injured myself on someone else's property. I don't feel well. Should I wait to see if I feel better before doing anything?

A: No, you should see your primary care physician or another medical doctor, since your injuries may be more severe than you think. You may also want to consult with an attorney to determine if you have a claim against the landowner.

You should also be aware that floor or ground conditions may change, and you may need to preserve or record the condition that caused your injury (typically with a photograph or videotape). In addition, every state has a "statute of limitations" which limits the time you have to act. Some states require you to give notice to certain types of landowners, such as municipalities, within as little as 30 to 90 days of the incident. If you do not give the required notice, or sometimes file a claim or lawsuit within the time set by law of the state in which the injury occurred, you lose your ability to recover from the landowner. If your injuries turn out to be more severe than they first appear, you'd be in trouble.

If you have a valid claim against the landowner for your injuries, delay may be fatal to your claim. You should act quickly to evaluate your options.

Q: What happens if I injured myself at my friend's house?
What happens if I injured myself at my friend's house?

A: If your friends are homeowners, they probably have homeowners insurance to protect them if someone is injured on their property. If they are renters, they may have renters insurance, or some type of umbrella coverage, for the same reason. Also, if they are renters, the land owner probably has insurance coverage for claims filed on the property.

Q: What steps should I take following a car accident?
Steps to Take After the Automobile Accident

A: Every day hundreds of people in New York are injured in car accidents. Unfortunately, many people do not know what to do when they have been involved in a car accident to protect their legal rights. The following will assist you if you or someone you know is involved in an accident.

1. Determine the medical needs of all persons involved and remove yourself from immediate danger.

2. Call for medical attention as needed.

3. Call the police and insist upon the completion of a police accident report.

4. Exchange personal information with all drivers involved in the accident.

5. Always take down the color, make, model, State of registration, and license plate number of all cars in the accident, in case information exchanged between drivers is incorrect. We will contact the Department of Motor Vehicles and confirm all information.

6. Get the names, addresses and phone numbers of any witnesses at the accident scene. This office will contact the witnesses and obtain statements on your behalf.

7. Photograph the damage to your vehicle prior to repairs being made. Our investigators will obtain photographs of the accident scene on your behalf.

8. Do not talk with anyone about the accident other than your doctor or lawyer.

9. If you are the driver or owner of one of the vehicles involved immediately contact your insurance company to report the accident. After reporting the accident the insurance company may send you papers or ask you to give a statement about the accident. Do not sign any papers from an insurance company or talk with them about the accident without first consulting a lawyer, but do not delay as the law imposes strict time limitations which we will explain to you upon our initial meeting.

10. Visit our insurance information FAQ page for more information about your insurance policy and make sure your policy is best suited to protect you and your family.

If you have been injured in a car accident and you wish to contact an attorney click here or call us at 212-684-5050.

Q: How is the value of damages determined?
How is the value of damages determined?

A: Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Generally, an injured party may recover for the loss or harm - both present and prospective - which are the natural, necessary or reasonable result of such damage.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages.

With respect to punitive damages, the amount is often determined after an inquiry reveals the wealth of the wrong-doer. For example, punitive damages in the amount of $10,000 is typically sufficient to deter similar acts or omissions for most people - but if the wrong-doer is a multi-millionaire, a $10,000 punitive damage award may be an insufficient deterrence. An award of damages that is the result of passion or prejudice on the part of a jury - meaning that the award is not supported by the evidence or that it does not bear any correlation to the amount of actual damages suffered - can be set aside by a judge upon review.

Q: What kinds of damages are recoverable for Slip & Fall injury?
What kinds of damages are recoverable for Slip & Fall injury?

A: This depends on the jurisdiction and the facts of your particular case (an attorney can help you with this). In general, the following damages may be recoverable:

(1) medical bills and expenses incurred as a result of the incident

(2) lost income for time from work to recover

(3) the fair value of any clothing damaged in the incident

(4) compensation for pain and suffering as a result of the incident and

(5) general damages.

Q: Are movie, theater, and restaurant reviews protected from defamation suits?
Are movie, theater, and restaurant reviews protected from defamation suits?

A: A fair critique of a restaurant, movie, TV show, or theater play is not libelous, even though the comments or criticism are disparaging and may result in a loss of business or reputation.

Q: Can negligence depend on who was doing what?
Can negligence depend on who was doing what?

A: Yes. Distinctions often are made based upon a person's knowledge, experience and background, i.e. - certified public accountants have a greater standard of care to act with respect to financial data, attorneys have a greater degree of care when acting on behalf of a client, and physicians have a greater degree of care when treating patients than a person who tries to give first aid.

Q: What is ‘comparative negligence?’
What is ‘comparative negligence?’

A: Comparative negligence comes into play when it is contended that two or more parties failed to perform at the standard of the "ordinary reasonable person". For example, suppose one person was driving too fast in a patch of dense fog on the highway and hit a car -- but the car that was hit did not have its lights on as it should have.

In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person(s) is reduced by the others' degree of negligence. For example suppose a jury decides that the driver going too fast in the fog was 60% responsible for the accident, while the driver without vehicle lights on is 40% responsible. If the driver who didn't have his lights on would have recovered $10,000, his recovery would be reduced to $6,000 because of his 40% contributory negligence. Whether the speeding driver would recover anything will depend on state law -- in some states the driver who bears over 50% of the responsibility would recover nothing, not the 40% of his damages.

Q: What is a ‘slip and fall’?
What is a ‘slip and fall’?

A: A "slip and fall" or "trip and fall" is the generic term for an injury which occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else's property. It includes falls as a result of water, ice or snow, as well as abrupt changes in flooring, poor lighting, or a hidden hazard, such as a gap or hard to see hole in the ground.

If you are on someone else's property and injure yourself as a result of a dangerous condition on the property, the land owner or business proprietor may be liable for your injuries. If you are a property owner and someone injures himself on your land, you may find yourself legally responsible for his or her injuries.

Q: I was bitten by a dog. Can I sue?
I was bitten by a dog at a rental unit where I was treating an invasion of ants. The landlord let me in without the tenant's permission. I ended up going to the hospital for treatment. Can I sue?

A: In dog bite cases usually the homeowners insurance will cover the liability for damages to the victim. Where a renter is involved, there may not be coverage for that renter. However, the landlord let you in and surely the building is covered for injuries caused by the negligence of the owner. However, we recommend getting into touch with an attorney from your state to determine what your rights are regarding compensation for your injuries.

Q: What is the basis for product liability?
What is the basis for product liability?

A: While the laws applicable to defective product cases varies from state to state, there are three legal theories common to all jurisdictions which may form the basis of a successful product liability case:

(1) Manufacturing defect. In such cases the injury was caused as a result of defect in the manufacture of the product. An example would be a bicycle which was built with a small crack in the frame, which breaks when used, causing an injury to the rider.

(2) Design defect. In these cases the injury was caused by a poor design (even though there may be no defect in the individual product itself). An common example would be a piece of industrial machinery which was built without a proper safety or protection devices, and as a result a worker is injured as result while using the machine.

(3) Failure to warn, or "inadequate warning". These cases refer to injuries caused as a result of a product known to be potentially dangerous which was sold without a proper warning to the consumer. An example would be an over the counter drug sold without a warning of the hazards of use with certain other drugs, or excessive consumption, or possible side effects from its use.

If you or a family member has been injured because of what you believe is a product defect, you should consult an attorney familiar with product liability / defective product cases at the earliest opportunity to protect you right of recovery.

Q: Can I sue someone who says or writes something defamatory about me?
Can I sue someone who says or writes something defamatory about me?

A: In order to prove defamation, you have to be able to prove that what was said or written about you was false. If the information is true, or if you consented to publication of the material, you will not have a case. However, you may bring an defamatory action if the comments are so reprehensible and false that they effect your reputation in the community or cast aspersions on you.

Q: Can I sue for libel my former employer?
My former employer is sabotaging my job efforts by giving negative job references to prospective employers. Can I sue for libel?

A: Generally, statements made by a former employer to inquiries from a prospective employer can be made without fear of being sued later. However, protection will be lost if there are any ancillary suggestions, inferences, innuendoes, etc. that lead a prospective employer to attach a different meaning to what is said or to believe something misleading or untruthful about the employee. The difficulty is proving that the statements were inaccurate and wrong.

Q: Can I sue for defamatory statements made by a witness under oath in a judicial proceeding?
Can I sue for defamatory statements made by a witness under oath in a judicial proceeding?

A: Statements in a judicial proceeding are privileged. A judge, juror, lawyers, witnesses, or other parties are absolutely protected. For example, you are involved in an employment dispute with your former employer who lets it be known to everyone that you are a drunk and a thief, knowing that it is untrue. Your former employer can make this defamatory statement without being sued by you afterwards.

Also protected are the remarks made by federal or state legislators in committee hearings or floor debates.

Q: What is ‘defamation’?
What is ‘defamation’?

A: Defamation, sometimes called "defamation of character", is spoken or written words that falsely and negatively reflect on a living person's reputation.

If a person or the news media says or writes something about you that is understood to lower your reputation, or that keeps people from associating with you, defamation has occurred. Slander and libel are two forms of defamation.

Q: What about ‘accidents’ resulting from defective products?
What about ‘accidents’ resulting from defective products?

A: Other than tobacco companies, few manufacturers set off intentionally to create and sell an inherently dangerous product and conceal its dangers. Yet there are many products that do injure people, despite reputable manufacturer’s efforts to create good products, and all sorts of government regulations designed to make products safe and well labeled.

If you use a knife to slice a bagel, and cut your hand in the process, neither the manufacturer of the knife, nor the bagel bakery, will likely be held responsible. But if the knife snaps and injures you because of a defect in manufacture, the manufacturer and possibly the distributor and the store that sold it to you will be liable. Similarly if the bagel contains impurities that make you very ill, the bakery may be liable.

If the products do not meet the standards set by the government, or if required government clearance of a product (such as a new drug) was obtained by suppressing negative test results, there will clearly be liability on the part of the manufacturer. A lawyer can assess the facts and circumstances, and also candidly evaluate what a likely recovery might be.

Q: What is meant by the term ‘defective product’?
What is meant by the term ‘defective product’?

A: A "defective product" is one that causes some injury or damage to person as a result of a person because of some defect in the product or its labeling or the way the product was used. The manufacturer, and others involved in the chain of commerce involving the products that caused the injury, are often liable for injuries defective products cause.

All states allow some form of recovery to persons injured by "defective products". "Product liability" cases run from the obvious (a car sold without operational brakes, a mislabeled product that causes injury) to the not-so obvious (injury from exposure to tobacco, or harmful side effects from an improperly tested drug).

Q: What is ‘negligence’?
What is ‘negligence’?

A: A person is negligent when he or she fails to act like the standard "ordinary reasonable person". Of course the critical issue in many cases is just how an "ordinary, reasonable person" was expected to act in the particular situation that caused the injury.

For example, an ordinary, reasonable person can travel down the Interstate, which has a posted speed limit of 65 miles per hour, at 65 miles per hour. However, if dense fog is present, the same ordinary, reasonable person would be expected to reduce his/her speed of travel. Suppose someone plows into your car while she was driving at 55 or 45 or 35? Would that be what the standard "ordinary reasonable person" should have done?

The determination of whether a given person has met his/her "ordinary reasonable person" standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.

Q: New York Threshold for Damages
New York Threshold for Damages

A: The New York legislature enacted a No Fault statute in an attempt to control the amount of automobile crash lawsuits. According to that statute, you may only sue another driver for negligence for personal injuries suffered in a car accident when your expenses are in excess of $50,000 or when you have sustained "serious injury". The New York state legislature defines "serious injury" as a personal injury that results in any one of the following:

1. Death;
2. Dismemberment;
3. Significant disfigurement;
4. A fracture, Broken Bone;
5. Loss of a fetus, unborn child
6. Permanent loss of use of a body organ, member, function or system;
7. Permanent consequential limitation of use of a body organ or member;
8. Significant limitation of use of a body function or system;
9. 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.

Comment: As you can see from the terminology used in the statute, it is difficult to determine whether your injuries may fall within one of the specified sections above. While items one (1) through (5) are easily defined, items six (6) through (9) are very ambiguous. Typically, much litigation in New York Automobile liability cases revolves around what are referred to as "threshold" cases. In other words, attorneys and insurance companies will evaluate your case depending upon whether you have met the "threshold" requirement of a "serious injury" as defined by the New York statute.

Q: "Basic Economic Loss" Under New York Law
"Basic Economic Loss" Under New York Law

A: You cannot sue another driver for personal injuries suffered as the result of a car accident for what is referred to as "basic economic loss". The New York legislature defines the term "basic economic loss" as damages sustained in an amount less than $50,000 per person, per accident.

The following expenses may be used in determining whether you have sustained "basic economic loss" or expenses in an amount less than $50,000:

1. All necessary expenses incurred for: (i) medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.

2. Loss of earnings from work which the person would have performed had he not been injured, and reasonable and necessary expenses incurred by such person in obtaining services in lieu of those that he would have performed for income, up to two thousand dollars per month for not more than three years from the date of the accident causing the injury.

3. An employee who is entitled to receive monetary payments, pursuant to statute or contract with the employer, or who receives voluntary monetary benefits paid for by the employer, by reason of the employee`s inability to work because of personal injury arising out of the use or operation of a motor vehicle, is not entitled to receive first party benefits for "loss of earnings from work" to the extent that such monetary payments or benefits from the employer do not result in the employee suffering a reduction in income or a reduction in the employee`s level of future benefits arising from a subsequent illness or injury.

4. All other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury.

So, you may still have a case if you can show that the expenses as defined above exceed the amount of $50,000.

Q: NY Law: Summary
NY Law: Summary

A: In summary, following an accident, you may review one of the clearly defined subsections above to determine if you have sustained a "serious injury". If you or your family member has not suffered one of the clearly defined injuries (ie. death; dismemberment; significant disfigurement; a fracture; or loss of a fetus), you should consult an attorney who will be able to determine whether your injuries may fall within on of the other categories of "serious injury" above. If you have not sustained a "serious injury' in any of these categories, you may still have a case if you can show expenses or the potential for expenses to exceed $50,000. Either way, always consult an attorney who will be able to protect and enforce your legal rights.

Finally, you should be advised that you may not be entitled to pursue any action if you are subject to any of the following:

1. Intentionally causing your own injury;

2. Operating a motor vehicle while in an intoxicated condition or while your ability to operate such vehicle is impaired by the use of a drug within the meaning of section eleven hundred ninety-two of the vehicle and traffic law;

3. Are injured while: (i) committing an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer, or (ii) operating a motor vehicle in a race or speed test, or (iii) operating or occupying a motor vehicle known to him to be stolen, or (iv) operating or occupying any motor vehicle owned by such injured person with respect to which the coverage required by subsection (a) hereof is not in effect, or (v) a pedestrian, through being struck by any motor vehicle owned by such injured pedestrian with respect to which the coverage required by subsection (a) hereof is not in effect, or (vi) repairing, servicing or otherwise maintaining a motor vehicle if such conduct is within the course of a business of repairing, servicing or otherwise maintaining a motor vehicle and the injury occurs on the business premises.

The state of New York is very strict about enforcing these laws. As such, you may not have a case if any of the above circumstances apply to you.

We never let go until you get your money.