New York Personal Injury Lawsuits – A Timeline

If you suffer an injury or the tragic loss of a loved one, you should meet with a lawyer as soon as you are ready. You have to protect your legal rights.

Your initial consultation should be timely, free and confidential. The lawyer will want to learn more about your case. You should be prepared to provide basic information about what happened, where it happened and who was involved.

You should also use this consultation to learn more about the lawyer. For instance, you should feel free to ask questions about the lawyer’s experience and reputation and about the firm’s resources.

You should also gauge the firm’s treatment of its clients. For instance, is this a firm that answers client’s calls and keeps them regularly updated about the status of their case?

The initial consultation typically is followed by the lawyer conducting an initial investigation of your case. The goal is to determine whether, in the lawyer’s view, pursuing a personal injury lawsuit would be in your best interests.

For example, the lawyer will want to determine who was at fault for your injuries and the extent of the harm you have suffered. An investigation will also depend on the type of case. For instance, the attorney will try to determine:

• Car accident – Whether your accident resulted in losses exceeding $50,000 or caused a “serious injury,” allowing for a recovery beyond personal injury protection (PIP) benefits
• Construction accident – Whether New York’s labor laws apply to your case, allowing for a recovery beyond workers’ compensation benefits.
• Medical malpractice – Whether your injury resulted from a medical professional’s failure to meet the applicable standard of care, and whether your harm resulted from this failure.

Your ability to recover compensation will depend on available insurance coverage. So, another critical part of the initial investigation will be a review of all relevant insurance policies.

The lawyer should present the results of the initial investigation. If you and the lawyer agree to move forward, you will enter into an agreement.

In most cases, Powers & Santola, LLP, will enter into a contingency fee agreement. This means that you will pay no costs or attorney fees unless our firm obtains a settlement or verdict on your behalf.

Most cases require the filing of a lawsuit. Your lawyer must file this lawsuit within a certain period of time after an injury occurs. This is called the statute of limitations. The time periods, under New York law, that commonly apply in personal injury cases are:

• Car accident 3 years from the date of the accident
• Construction accident 3 years from the date of the accident
• Product liability 3 years from the date of the accident
• Medical malpractice  2 years and 6 months (30 months) from the date of the act (or failure to act) or end of continuous treatment
• Wrongful death 2 years from the date of the victim’s death.

Exceptions may apply that delay the start of the time period running. For instance, an exception may apply if the victim was a child or if there was a delay in discovering the injury.

Other deadlines may also need to be met. For instance, if you need to file a claim for medical expenses with your insurer after a car accident, you must do so within 45 days after the crash (and within 90 days if it is a claim for lost income). If you file a claim against a state agency, you must give notice within 90 days of the accident and file a claim within one year and 90 days (15 months).

After a lawsuit is filed, you and the other parties in your case – for example, the other driver, construction site owner or hospital – will exchange information in a formal process called discovery.
This involves each side asking questions about basic facts of the case (interrogatories), seeking documents, requesting medical examinations (in some cases) and taking sworn statements (depositions and affidavits).

In some instances, a party may refuse to comply with discovery requests. As a result, your lawyer may need to file a motion with the court to compel the other side to comply.

Before a case goes to trial, an effort will be made to resolve the case through a settlement. A settlement is an agreement in which one side agrees to pay compensation that is demanded, and in exchange, the other side agrees to release that party from any further legal responsibility, or liability.
Your lawyer starts the process by making a demand. The other side will either agree to those terms or submit a different offer. The sides may go back-and-forth in negotiations. A mediator – a neutral party – may also be brought in to try to get both sides to agree on a settlement.

Ideally, the other party (or parties) involved in your case will agree to a settlement that fully compensates you for your physical, emotional and financial damages. Your attorney will guide you through the process of finalizing the settlement, including the signing of the release and the disbursement of settlement funds. For a variety of reasons, many personal injury cases are resolved at this stage.

A case will go to court if a settlement cannot be reached by the trial date. However, settlement talks may actually continue through trial and even after a verdict is returned.

During trial, each side will present evidence. The evidence typically includes documents, photos, video, illustrations and, in some cases, computer animation showing how an accident or injury occurred. Witnesses also will testify, including eyewitnesses to an accident, friends or family members and experts.

At the close of all evidence, the jury will deliberate and return its verdict.

A trial typically is broken into two parts: The first part determines liability. If liability is found by the jury, the second part involves the determination of how much damages you should recover (and whether those damages should be reduced based on your own fault). In some cases, a party may admit liability. So, a trial will focus only on damages.

After the jury returns its verdict, the court will enter a judgment. You or the other party may file a post-trial motion or file an appeal. An appeal would be to the next highest court, or Appellate Division. A further appeal would go to the Court of Appeals, which is New York’s highest court.

Once all appeals and post-trial matters conclude, the judgment in your case will be considered “final.” If you are entitled to a recovery, your attorney would take actions to collect the judgment and proceed with disbursing funds similar to a settlement.

Keep in mind: If some of your damages (such as medical expenses or lost income) were paid by another source while your case was pending – for instance, by health insurance or workers’ compensation – you may have liens on your recovery. Your lawyer would work to resolve those liens with the goal of maximizing the amount you receive.