|Robert Alan Saasto, Esq.||41
Woodbury, NY 11797
Tel: 631.223.1780 | Fax: 631.223.1701
New York Car Accident Law
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
New York Threshold for Damages
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:
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.
Have I sustained a "serious injury" under
NY Law or not?
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.
"Basic Economic Loss" Under New York Law
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.
NY Law: Summary
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.