If you suffer injuries or monetary losses as a result of a third party’s actions (negligent or otherwise), you can bring a tort claim against them with the help of an NYC personal injury attorney and seek damages. The process of recovering damages through a New York City personal injury lawsuit generally involves several steps – each of which has its own procedural requirements. With the help of an experienced attorney, you can expedite the process to a great extent and recover the compensation you deserve.
Steps Involved in a New York Personal Injury Case
Filing a Summons and Complaint
This is the very first step in filing a personal injury lawsuit in New York City. In this step, the personal injury attorney who represents you will file a summons and complaint with the court on your behalf.
The complaint generally contains the name and date of the accident, the injuries you suffered, the legal basis for your claim, and other relevant facts. The summons informs the defendant (the person who caused the accident) why they are being sued and notifies them that they must respond to your complaint within 30 days.
The purpose of filing a summons and complaint is to inform the defendant and the court what your lawsuit is all about. Once it is filed, the court will assign an index number to your case. It is a unique number which can be used to track your case.
Serving the Summons and Complaint to the Defendant
After filing the summons and complaint with the court, your attorney will serve a copy of the same to the defendant, so that they can respond to it. The case papers can be served in three ways.
In Person Delivery – The complaint papers are personally handed to the defendant.
Substituted Delivery – The complaint papers are handed to a third party who can hand them to the defendant.
Conspicuous Delivery – The complaint papers are left in a place where they are most likely to be found by the defendant. A copy of the complaint is also mailed to the defendant’s address.
Under New York law, a summons and complaint can be served by a process server or by any third party who is over the age of 18. It should be noted that anyone who is a party to the lawsuit is prohibited from serving the papers to the defendant. They are, however, allowed to accompany the person who serves the papers.
If the papers are not served to the defendant in a timely manner or if they are not served in the right way (as mentioned above), the defendant can cite it as a reason – commonly referred to as bad service – and request the court to dismiss your case. If it happens, you have to start the process all over again. So, it’s fundamental to make sure your case papers are served in compliance with the law.
The Answer to the Complaint
Once the defendant receives the summons and complaint, they are required to respond to it within a period of time (usually 30 days). In their response – commonly referred to as the answer – the defendant will deny the allegations against them and state why they should not be held accountable for your injuries.
In some cases, instead of responding to the complaint, the defendant might choose to request the court to dismiss the case – if they believe that there is a legal basis to do so.
If the defendant does not ask the court to dismiss your case and fails to respond to your complaint within the stipulated period of time, your attorney can file a request with the court to obtain a default judgment. A default judgment can be issued in favor of the plaintiff (the injured party) in the absence of the defendant – if the latter fails to respond to the summons served to them.
In rare cases, the defendant might respond to your complaint with what is called a counterclaim. A counterclaim – as the term indicates – contains claims against you – made by the defendant. It is essentially a reversal of the situation where the defendant accuses you of negligent or wrongful action. If you are served with a counterclaim by the defendant, you can respond to it – just like the defendant responded to your complaint – with the help of your NYC personal injury attorney.
This is a key step in the litigation process where your side and the other side can exchange information which is relevant to the case so that you both know what you are up against. This is done to make sure one side does not blindside or ambush the other at the trial by producing a surprise witness or submitting hidden evidence which can stack the odds in their favor.
Generally, there are four ways in which one side can get the information they want from the other side. These include:
Interrogatories are a set of questions that one side can send to the other side to get the information they need. The other side is required to respond to the questions in writing and under oath. The other side can also do the same to get the information they need.
2. Requests for Production
One side can request the other side to produce copies of documents that are relevant to the case.
3. Requests for Admission
One side can ask the other side to admit or deny a claim, allegation, or material fact related to the case.
A deposition is a process where the attorney representing a party can question the other party or the witnesses on their side in the presence of a court reporter. The person who answers the questions must do so under oath. The person who is being questioned has the right to object if they believe a question is improper or irrelevant to the case.
How Your Social Media Posts Can Impact Your Case
It is important to note that the defendant’s side will be carefully monitoring your social media accounts right from the day you file the claim. Even if you make your accounts private, the defendant’s side can still ask you to allow them to access your social media feed – if they believe that the information you have posted could be useful to the case.
If you upload anything – pictures, videos, or posts – that contradicts your official statements regarding the accident and the injuries you suffered, the defendant’s side can use it against you and question the veracity of your claims against the defendant.
Even something as innocuous as posting a picture of yourself in a happy mood with the caption ‘feeling great’ can be used by the defendant’s attorney to question whether you are really as injured as you claim to be. This is one of the important reasons why New York City personal injury attorneys generally ask their clients to stay away from social media until their case is settled or a verdict is delivered.
Objecting to Discovery
Under New York law, both the plaintiff and the defendant have the right to object to the discovery demands of each other – if they believe that the other side’s question or request is irrelevant to the case or asks for too much information, which they are not under obligation to provide.
Demanding Response from the Other Side
In case the defendant does not respond to a legitimate discovery demand from your side, your attorney can request the court to order the defendant to respond to your query. The court will – depending on the legitimacy of your discovery demand – order the defendant’s side to respond within a certain amount of time. If the defendant’s side fails to respond to your query even after being ordered by the court, your attorney will file a motion to hold the defendant in contempt of court.
The defendant’s side too can do the same if you fail to respond to their queries during the discovery process.
During the course of the discovery process, you might be asked to undergo a physical examination by a doctor of the defendant’s choosing. The purpose of this examination is to find out whether you are really injured and whether your injuries are as serious as you claim to be.
Since the doctor who examines you will be looking for reasons to reject or reduce the value of your claim, you should avoid discussing the details of the accident with them. You should only tell them about the injuries you sustained or the physical and mental conditions you have developed as a result of the accident.
Before your case goes to trial, your attorney and the defendant’s attorney will try to reach an out-of-court settlement. This is because the trial process can be expensive and time-consuming for all the parties involved. So, they will negotiate with each other and see if it is possible to find a middle ground regarding the outcome of the case.
If your side and the defendant’s side manage to reach an agreement, the case can be settled without a trial. Your attorney – along with the defendant’s attorney – will prepare what is called a ‘stipulation of settlement’ – which both parties have to sign.
It should be noted that the settlement agreement is legally binding on both parties. The defendant has to pay you the sum of money that they agreed to pay you during the pre-trial negotiations. Similarly, you have to voluntarily give up your right to sue the defendant for damages in the future.
If the defendant fails to pay you the compensation even after signing the settlement agreement, your attorney will file a request with the court to make the defendant comply with the terms of the agreement.
If your attorney and the defendant’s attorney fail to reach an agreement, your case will proceed to trial.
At the start of the trial, your attorney and the defendant’s attorney will be given the opportunity to make their opening statements. In their opening statement, your attorney will tell your side of the story, state relevant facts that can support your claim, and explain why you are suing the other party and why you deserve to be compensated. Similarly, the defendant’s attorney will tell their side of the story and explain why they cannot be held liable for your injuries.
After making their opening statements, both attorneys will present the documentary evidence they have and call the witnesses to testify. The attorneys have the right to question each other’s witnesses.
Once all the evidence is submitted before the jury, the attorneys will be given the opportunity to make their closing arguments. In their closing argument, your attorney will tell the jury about what happened to you as a result of the defendant’s negligence, how your injuries will continue to impact your life, and why you deserve the compensation you are asking for.
In their closing argument, the defendant’s attorney will defend their client and tell the jury why their client cannot be held liable for their injuries.
Once the closing arguments are made, the jury will deliberate for a period of time – which can be anywhere from a few minutes to a few days – after which they will deliver a verdict. If the verdict is in your favor, the jury will specify the amount to be paid as compensation by the defendant. If it is in the defendant’s favor, your lawsuit will be dismissed.
If the losing side believes that there were factors at work that prevented them from getting a fair trial, they can file a motion with the court for a new trial. Similarly, if they do not agree with the verdict, they have the right to approach the appellate court and request to change or overturn the verdict issued by the lower court.
NYC Personal Injury Claim – Why Your Legal Representation Matters
As you can see, filing a claim against an at-fault party and recovering damages from them can be a tedious and time-consuming process. Even the slightest mistake or procedural lapse on your part can greatly affect your chances of recovering compensation. So, it’a critical to hire a skilled and accomplished NYC personal injury attorney who can accurately guide you through the litigation process and help you get the right amount of compensation you are entitled to.
To learn more, call Rosenberg, Minc, Falkoff & Wolff, LLP today at 1-800-660-2264 or contact us online for a free and confidential consultation.
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