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
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
7. Permanent consequential limitation of use of a body organ
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.