New York personal injury law FAQs
Straight answers about New York law, organized by the kind of case. If your question isn’t here, call us; the first conversation is free.
01What is a Public Health Law § 2801-d claim, and how is it different from an ordinary negligence case?
Section 2801-d of the New York Public Health Law lets a nursing home resident (or the resident’s estate) sue when the facility deprives the resident of a right or benefit created by a contract, statute, or regulation, including the state and federal nursing home rules. The resident does not have to prove a classic malpractice case. The statute sets a minimum award for each day the injury exists, allows punitive damages when the violation was willful or in reckless disregard of the resident’s rights, and lets the court award attorney’s fees. The facility can defend by proving it exercised all care reasonably necessary to prevent the injury.
02Does § 2801-d apply to assisted living?
Generally, no. Section 2801-d covers residential health care facilities, which in practice means licensed nursing homes. Injuries in assisted living residences and adult homes are usually pursued as negligence claims, often alongside the state regulations that govern those facilities. Which rules apply depends on how the facility is licensed, so we confirm the license early.
03How long do we have to bring a nursing home case?
It depends on the claim. Negligence and § 2801-d claims are generally subject to a three-year limit (CPLR 214). Claims that sound in medical malpractice are generally subject to two and a half years (CPLR 214-a). If the resident has died, a wrongful death claim must generally be started within two years of the date of death (EPTL 5-4.1). Because different clocks can run at once, call promptly.
04The admission papers included an arbitration agreement. Does that mean we can’t go to court?
Not necessarily. Under the federal requirements for nursing homes that take Medicare or Medicaid, a facility may not require a resident to sign an arbitration agreement as a condition of admission, and the resident has a right to rescind within 30 calendar days of signing (42 C.F.R. § 483.70, citation to be confirmed). Whether a particular agreement is enforceable depends on how and when it was signed, and by whom. Send us the full admission packet.
05What records should a family get, and how?
The full chart: physician orders, nursing notes, care plans, MDS assessments, medication and treatment administration records, ADL flow sheets, skin and wound assessments, weights, incident reports, and the hospital transfer records. A resident or the resident’s legal representative can request records under Public Health Law § 18. The records request letter generator walks through the request. Staffing data and internal reports usually come later, in discovery.
01How long do I have to file a medical malpractice case in New York?
Generally two and a half years from the malpractice, or from the end of continuous treatment for the same condition (CPLR 214-a). For a failure to diagnose cancer or a malignant tumor, the period generally runs from when the patient knew or should have known of the negligence, subject to an outside limit of seven years. Claims against public hospitals, including NYC Health + Hospitals facilities, require a notice of claim within 90 days and suit within one year and 90 days. Some of these deadlines are short; call right away.
02What has to be proven?
That the doctor, nurse, or hospital departed from accepted medical practice, and that the departure was a substantial factor in causing the injury. Both points almost always require testimony from a qualified medical expert. A bad outcome alone is not malpractice.
03Do you need a doctor to review the case before filing?
Yes. New York requires the attorney to file a certificate of merit stating that the case was reviewed with a physician who concluded there is a reasonable basis for the suit (CPLR 3012-a). We have records reviewed by physicians in the right specialty before we file.
04How are attorney’s fees calculated in a medical malpractice case?
New York sets a sliding scale for contingency fees in medical, dental, and podiatric malpractice cases (Judiciary Law § 474-a): 30% of the first $250,000, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000, and 10% of anything over $1.25 million. Your retainer agreement spells out how case expenses are handled.
05What if I was never told about the risk that caused my injury?
That can be a separate claim for lack of informed consent (Public Health Law § 2805-d). It requires showing that a reasonable person, properly informed of the risks and alternatives, would not have gone ahead, and that the procedure caused the injury.
01What is the Scaffold Law, Labor Law § 240(1)?
It requires owners and general contractors to provide proper protection, such as scaffolds, ladders, harnesses, and hoists, against elevation-related hazards. When the failure to provide proper protection causes a worker’s fall from a height, or causes a falling object to strike the worker, the owner and contractor are liable even if they did not supervise the work, and the worker’s own carelessness is not a defense. Liability does not attach if the worker’s own conduct was the sole proximate cause of the accident (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280 (2003)).
02What about injuries that aren’t falls, under Labor Law § 241(6)?
Section 241(6) makes owners and contractors responsible for violations of specific safety rules in the state Industrial Code (12 NYCRR Part 23), such as rules on tripping hazards, slippery surfaces, and machinery. The claim must rest on a concrete, specific Industrial Code provision, not a general safety standard (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993)). The worker’s comparative fault can reduce, but does not bar, recovery.
03Can I sue my employer?
Usually not directly. Workers’ compensation is generally the exclusive remedy against your own employer (Workers’ Compensation Law § 11). But you can sue the property owner, general contractor, and other subcontractors, and those claims are where the Labor Law protections apply.
04Can I collect workers’ compensation and also bring a lawsuit?
Yes. Workers’ compensation pays medical bills and part of lost wages regardless of fault. A third-party lawsuit can recover full lost earnings and pain and suffering. The compensation carrier has a lien on the lawsuit recovery for what it paid (Workers’ Compensation Law § 29), which is addressed at settlement.
05How long do I have to file?
Generally three years from the accident for a personal injury lawsuit (CPLR 214). If a public entity owns the site, a notice of claim may be due within 90 days. Report the accident and file for workers’ compensation promptly; that system has its own deadlines.
Car, truck, e-bike & pedestrian accidents
More on car, truck, e-bike & pedestrian accidents01What is no-fault insurance, and what does it cover?
New York is a no-fault state. After a crash, your own policy (or, for a pedestrian, the policy of the vehicle that struck you) pays basic economic loss, such as medical bills and part of lost wages, up to $50,000, regardless of who caused the accident (Insurance Law § 5102). File the no-fault application within 30 days of the accident.
02When can I sue for pain and suffering?
Only if you sustained a “serious injury” as the law defines it, such as a fracture, significant disfigurement, a permanent or significant limitation of use of a body part, or an injury that kept you from most of your usual activities for 90 of the first 180 days (Insurance Law § 5102(d)). Medical documentation is what proves it, so consistent treatment matters.
03How long do I have to bring a case?
Generally three years from the accident (CPLR 214). If a City vehicle, MTA bus, or other public entity is involved, a notice of claim is generally due within 90 days, and the lawsuit within one year and 90 days. These short deadlines are the most common way good claims are lost.
04What if I was partly at fault?
New York uses pure comparative fault (CPLR 1411). Your recovery is reduced by your share of fault, but it is not barred.
05I was hurt on an e-bike or e-scooter. Do the same rules apply?
Many do, but coverage questions are different and depend on the device’s classification and who was involved. If a car or truck struck you, that vehicle’s insurance is usually the starting point. If a defective battery, scooter, or road condition caused the crash, the claim may run against a manufacturer, rental company, or property owner. We sort out coverage first.
Slip and falls, negligent security & dog bites
More on slip and falls, negligent security & dog bites01What must I prove in a slip, trip, or fall case?
That a dangerous condition existed and that the property owner created it or knew, or should have known, about it long enough to fix it (Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986)). Photographs of the condition, witness names, and incident reports made at the time are often decisive.
02Who is responsible for a broken sidewalk in New York City?
In most cases, the owner of the property next to the sidewalk (NYC Administrative Code § 7-210). Owner-occupied one-, two-, and three-family homes are an exception, and the City can be liable in limited circumstances, generally only with prior written notice of the defect. A notice of claim against the City is due within 90 days.
03I fell on snow or ice. Does it matter when the storm ended?
Yes. Under the storm-in-progress rule, an owner generally has no duty to clear snow or ice until a reasonable time after the storm ends (Solazzo v. N.Y. City Tr. Auth., 6 N.Y.3d 734 (2005)). Weather records and the timeline of the fall are central to these cases.
04Can a property owner be responsible for a crime committed by someone else?
Yes, when the crime was reasonably foreseeable, usually because of prior similar crimes at or near the property, and the owner failed to take minimal security precautions, such as working locks, lighting, or guards, that would likely have prevented it (Jacqueline S. v. City of New York, 81 N.Y.2d 288 (1993)).
05What do I have to prove after a dog bite?
Generally, that the owner knew or should have known the dog had vicious propensities, such as prior bites, growling, or lunging (Collier v. Zambito, 1 N.Y.3d 444 (2004)). New York does not generally allow an ordinary negligence claim against a dog’s owner (Bard v. Jahnke, 6 N.Y.3d 592 (2006)), with limited exceptions. If the dog was previously found to be dangerous, the owner is strictly liable for medical costs (Agriculture and Markets Law § 123(10)).
01What makes a product “defective” under New York law?
There are three kinds of defect: a manufacturing defect (the item departed from its intended design), a design defect (the design was not reasonably safe, weighing its risks against its usefulness and feasible safer alternatives, Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983)), and a failure to warn of known risks. Manufacturers, distributors, and sellers can all be responsible.
02How long do I have to bring a product liability claim?
Generally three years from the injury (CPLR 214). For injuries caused by exposure to a toxic substance, the three years generally runs from when the injury was discovered or should have been (CPLR 214-c). Breach of warranty claims have their own four-year limit that can run from the date of sale (UCC 2-725).
03What should I do with the product?
Keep it, along with the packaging, instructions, and receipt, and do not repair or alter it. The product itself is usually the most important evidence. If it is in someone else’s hands, let us know right away so we can ask that it be preserved.
04What is the difference between a mass tort and a class action?
In a class action, one case represents a group with similar claims and the recovery is shared. In a mass tort, each injured person keeps an individual case, often coordinated with others for efficiency, and damages are assessed for that person’s own injuries. Most serious drug and device injury claims proceed as individual cases.
01Who can bring a wrongful death case in New York?
Only the personal representative of the estate, meaning the executor named in a will or an administrator appointed by the Surrogate’s Court (EPTL 5-4.1). The recovery is distributed to the family members the law designates. If no one has been appointed, that is the first step, and we handle it.
02How long do we have?
Generally two years from the date of death (EPTL 5-4.1). Shorter notice deadlines apply when a public entity is involved, and the underlying injury claim may have its own earlier deadline.
03What can be recovered?
The wrongful death claim compensates the family’s financial losses: lost support and services, medical and funeral expenses, and similar losses (EPTL 5-4.3). A separate survival claim recovers for the person’s own conscious pain and suffering before death (EPTL 11-3.2). Current New York law does not compensate grief itself through the wrongful death claim.
04Does a court have to approve a settlement?
Yes. A wrongful death settlement requires court approval, typically from the Surrogate’s Court or the court where the case is pending, which also approves how the proceeds are allocated and distributed (EPTL 5-4.6).
01How long do I have to appeal to the Merit Systems Protection Board?
Generally 30 days after the effective date of the agency’s action, or 30 days after you receive the decision, whichever is later (5 C.F.R. § 1201.22(b)). The deadline is strictly enforced. If you are raising discrimination, the timing rules for the EEO process may also apply.
02What if I believe the action was discriminatory?
You generally must contact an agency EEO counselor within 45 days of the discriminatory act (29 C.F.R. § 1614.105). When the action is also appealable to the MSPB, such as a removal, it is a “mixed case,” and you must choose between the EEO and MSPB routes. That choice has consequences, so get advice before filing.
03How do whistleblower retaliation claims work?
If the action itself is not directly appealable, you generally file a complaint with the Office of Special Counsel first and may then bring an Individual Right of Action appeal to the MSPB (5 U.S.C. §§ 1214, 1221). You must show a protected disclosure was a contributing factor in the action; the agency must then prove by clear and convincing evidence it would have acted anyway.
04Can I recover attorney’s fees if I win?
The MSPB may order the agency to pay reasonable attorney’s fees to an employee who prevails, when warranted in the interest of justice (5 U.S.C. § 7701(g)). We discuss fee arrangements for federal employment matters at the first consultation.
01How do I prove my damages, such as medical expenses and lost wages?
To prove damages, the plaintiff will need to present evidence such as medical bills, pay stubs, and witness testimony. A personal injury lawyer can help gather and present this evidence to the court.
02Will I have to go to court?
Many personal injury cases are settled out of court, but some may require a trial. A personal injury lawyer can advise you on the likelihood of going to court and what to expect if your case does go to trial.
03What is your experience in handling similar cases?
Leitner Warywoda is a law firm with extensive experience in handling catastrophic injury cases. Catastrophic injury cases are legal claims that involve severe, life-altering injuries that have a significant impact on the victim's life and their family members. These types of injuries can occur in various situations, such as car accidents, construction accidents, medical malpractice, and more. Having an experienced, aggressive, and skilled attorney who can represent you in such cases is of utmost importance. Here’s why:
Experience matters. Experienced lawyers like those at Leitner Warywoda have been handling catastrophic injury cases for years. They understand the complexities of these cases, know how to investigate them thoroughly, and can help you navigate the legal system. An experienced attorney can fight for you and protect your legal rights. They know how to deal with insurance companies and defense lawyers, and they can help you achieve the best outcome possible.
Aggressive representation. An aggressive attorney can take a firm stance for you and advocate for your best interests. Leitner Warywoda has a reputation for being aggressive in representing its clients. We don't back down when it comes to fighting for what our clients deserve. With our extensive experience, we know how to put pressure on the other party and negotiate for the best possible settlement or take the case to trial if necessary.
Skilled in negotiations and litigation. A skilled attorney can help you navigate the complex legal process in a catastrophic injury case. Whether it involves negotiating with the insurance company or taking the case to trial, Leitner Warywoda has the necessary skills to represent you. We are well-versed in negotiations and can present your case convincingly in front of the judge and jury.
Proper legal advice. Having an experienced attorney on your side is also crucial for receiving proper advice. We can help you understand your rights, explain the potential outcomes of your case, and provide advice every step of the way. Our attorneys have handled different types of catastrophic injury cases, from car accidents to medical malpractice, and can advise you based on the specifics of your case.
If you or a loved one has suffered a catastrophic injury, it is crucial to have an experienced, aggressive, and skilled attorney by your side. Contact Leitner Warywoda for a confidential and free consultation to discuss your options and see how we can help.
04Is it important to meet and have access to the attorney who will be handling my case?
One of the most critical aspects of any legal case is the representation you have. You need the best possible professional help. However, it’s not just about finding an experienced attorney; it's equally important to have personal contact and access to them.
When we hire an attorney, we give them a great deal of trust and control over our case. It's crucial to establish a strong working relationship right from the start because the outcome of the case could depend on this. Meeting with your attorney, discussing the case, and having access to them throughout the process will create a more cohesive and supportive experience.
Additionally, personal interaction and open communication can help in gaining a better understanding of the legal proceedings and strategies used by your attorney. This understanding is vital as it enables you to make better and informed decisions regarding the case's direction and approach.
Meeting with your attorney in person can also help with building trust and understanding. You can get a sense of their experience, passion, expertise, and philosophy towards the case. This can be critical information before you commit to working with an attorney.
Lastly, having access to your attorney is crucial. A responsive attorney who keeps you informed about the case's progress builds trust further. Being able to reach out, ask questions, or discuss any concerns is crucial not just for the case, but for your peace of mind.
It's highly recommended to meet and have access to the attorney handling your case. Personal communication, open dialogue, and accessibility should be non-negotiable when selecting an attorney.
05How do I prove negligence or fault?
To prove negligence or fault, the plaintiff must show that the defendant had a duty to act in a certain way, that they failed to do so, and that this failure caused the plaintiff's injuries. This can be demonstrated through evidence such as witness testimony, accident reports, and expert testimony.
06What is the statute of limitations for my case?
The statute of limitations is the time period within which a personal injury lawsuit must be filed. The time period varies by state and type of injury, so it's important to consult with a personal injury lawyer to determine the statute of limitations for your case.
07How will you communicate with me about my case?
A personal injury lawyer should communicate with you regularly throughout the process, keeping you informed of any developments in your case. They should also be responsive to any questions or concerns you may have.
08How long does it take to resolve a personal injury case?
The time to resolve a personal injury case varies. Some settle in months, others take years, depending on complexity and court schedules. We’ll provide a realistic timeline based on your case.
09What is the process for bringing a civil lawsuit for injuries in New York?
A civil jury trial in New York follows a process similar to that of other states in the U.S. Here is an overview of how the process typically works:
- Filing a complaint: The first step in a civil jury trial is to file a complaint with the court. The complaint outlines the plaintiff's allegations against the defendant and the relief that the plaintiff is seeking.
- Serving the complaint: After the complaint is filed, it must be served on the defendant. This means that a copy of the complaint must be delivered to the defendant in a way that is authorized by law.
- Responding to the complaint: After being served with the complaint, the defendant has the opportunity to respond by filing an answer. The answer typically denies the allegations made in the complaint and may include counterclaims against the plaintiff.
- Discovery: The discovery process allows both parties to gather information about the case. This can include exchanging documents, taking depositions, and requesting answers to written questions.
- Pretrial motions: Either party can file pretrial motions to ask the court to make certain decisions before the trial begins. For example, a party might file a motion to dismiss the case or to exclude certain evidence.
- Trial: If the case is not resolved before trial, it will go to trial before a judge and a jury. The trial begins with opening statements by both sides, followed by the presentation of evidence and testimony by witnesses, including expert witnesses such as doctors, nurses, economic and vocational experts, and liability experts such as accident reconstructionists and engineers. The parties then give closing arguments, and the jury deliberates and reaches a verdict.
- Appeal: If either party is dissatisfied with the outcome of the trial, they may file an appeal to a higher court to have the decision reviewed.
It's important to note that this is a general overview of the process and that the specific details of a civil jury trial can vary depending on the case and the court.
Do you have questions about filing a negligence lawsuit for injuries in New York? One of our experienced New York negligence attorneys can speak with you today about the possibility of filing a lawsuit and holding a negligent party accountable for injuries. Contact Leitner Warywoda PLLC to learn more about the services we provide.
10What are my legal options?
Accidents can happen at any time, and when they do, they can result in severe injuries and significant financial losses. If you have been injured in an accident due to someone else's negligence, you have legal options available to pursue justice and compensation.
Personal injury lawsuit. One of the most common and effective legal options available to you is to file a personal injury lawsuit. In a personal injury lawsuit, you can hold the responsible party accountable for their negligence and recover compensation for your losses. To win a personal injury lawsuit, you need to prove that the other party was negligent and that their negligence caused your injuries.
Filing an insurance claim. Another option is to file an insurance claim with the other party's insurance company. This option may be appropriate if the other party has insurance coverage for their negligence. You can file this claim on your own, or with the help of a personal injury attorney, who can negotiate with the insurance company on your behalf.
Workers' compensation claim. If you were injured while at work, you may be eligible for workers' compensation benefits. Workers' compensation benefits are designed to cover medical expenses, lost wages, and other expenses related to the injury. Your employer is required to carry workers’ compensation insurance, and you may be entitled to these benefits even if the accident was your fault.
Negotiated settlement. In some cases, you may be able to reach a settlement outside of court with the responsible party. A settlement is an agreement between you and the other party, where they agree to pay you a certain amount of compensation in exchange for dropping any legal action against them.
Each option comes with its unique advantages and challenges, and you should consider hiring a personal injury attorney to help guide you through the process and maximize your chances of a successful outcome.
11What happens with my case after a lawsuit is filed?
Although there are variations, depending on where your lawsuit is filed, you can generally expect the following:
- We will hire a private process server to hand-deliver a copy of your lawsuit to each defendant in your case along with interrogatories and a request for production of documents.
- We will prepare a written “request for production of documents” (a device which allows us to get important documents and photographs from the defendant together with answers to certain key questions by his or her lawyer and insurance company).
- Typically, the defendant’s insurance company will hire a lawyer to represent the defendant. Within 30 days of being served with our complaint, this lawyer will file an “answer” to our lawsuit and will send it to us along with their own “request for production of documents” to which we must respond. We will work with you to answer the defendant’s requests in the form of a “Bill of Particulars” (a document in which we describe our allegations against the defendant more specifically). After consulting with you, we will prepare a response to each of the defendant’s requests for production of documents.
- Once written discovery is completed, the parties will take “depositions.” Depositions are interviews conducted in a lawyer’s office, under oath, with a court reporter present to record all of the questions and answers. We always meet with our clients before their depositions take place. Shortly thereafter, we will depose the defendant and other witnesses relevant to our claims.
- Once written discovery and all depositions have been completed, we file a document with the court called a “Note of Issue,” which includes a “Certificate of Readiness.” This document advises the court that all discovery is complete and we are ready to be placed on the trial calendar. As we await a trial date, the attorneys involved often explore settlement by talking among themselves, or by agreeing to use Alternative Dispute Resolution such as mediation, where a neutral mediator hears all arguments and helps the parties reach a fair settlement. Although we prepare all of our cases with trial in mind, once it becomes clear that a case will not settle, we will prepare accordingly for trial.
12What determines the value of your personal injury case?
The value of your personal injury case depends on factors like the severity of your injuries, how they affect your daily life, and the strength of the evidence. We’ll carefully review your case to provide a clear estimate of its potential value.
13Do you handle cases throughout New York and Long Island?
Yes. We represent injured clients across New York City, all five boroughs, and Long Island. In some matters, we also handle cases beyond the local area, depending on the type of claim. If you are unsure whether we can help, contact us and we will let you know right away.
14What happens during your free consultation?
During your free consultation, we listen to what happened, review the facts and available documents, and explain your legal options. You will get a clear, honest assessment of your case and what the next steps may look like. There is no obligation to move forward.
15What should you bring to your free consultation?
Bring any documents that help explain what happened, such as accident reports, photos, medical records, bills, insurance letters, pay stubs, or correspondence from your employer or insurer. If you do not have everything, that is fine. We can still review your situation and tell you what to do next.
General information about New York law as of 2026, not legal advice for a specific situation. Deadlines and rules have exceptions that depend on the facts. Contacting the firm does not create an attorney–client relationship.