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What Is Personal Injury?

Personal injury is a legal term that describes a physical or emotional injury. A personal injury lawsuit seeks to hold another person, company, or entity responsible for your injury. Personal injury doesn’t include property damage. However, many lawsuits also demand compensation for property damage arising from the same incident that caused you harm.

What You Should Know About Personal Injury Claims in New York

You don’t need to learn all the laws related to personal injury claims. The area of law governing personal injury claims is known as tort law. We’re here to explain which laws are relevant and how they impact your case.

There are many personal injury laws in any jurisdiction, which is an area that has its own court system. New York has many statutes that apply to personal injury claims. They can be found in New York’s Consolidated Laws. The state also has case law that is relevant to personal injury cases. Case laws are laws that come from judicial opinions in lawsuits.

Negligence in New York Personal Injury Cases

Negligence is a major concept in the law. Negligence basically means someone was careless and caused another person harm. It does not mean someone intentionally hurt another person.

Personal injury claims are typically based on the allegation that the other person was negligent. To be negligent means a person failed to uphold their duty to act as a reasonable and prudent person. Their failure to act carefully then caused an accident, which resulted in another person getting hurt. In some cases, you might claim the other person was grossly negligent, which is more significant bad behavior. Gross negligence is like recklessness.


Negligence is a failure to uphold a duty of care. Most people, in most circumstances, are required to maintain the duty of ordinary care. They have to act like reasonably prudent people would under the same or similar circumstances. In other words, they have to be careful and avoid hurting someone. When someone is negligent, it means they failed to uphold this duty. It doesn’t mean they tried to hurt someone or acted maliciously.


Another important element of negligence is causation. To hold someone responsible for your personal injury based on negligence, you have to prove a proximate cause. You must prove that were it not for the accident, you would not have been hurt. You also have to prove that your injuries were a foreseeable risk of the other person’s negligent behavior. Causation can get tricky in a personal injury suit if multiple other people might be to blame for your injuries.

Liability in New York Personal Injury Cases

Liability is the legal concept of responsibility for paying for another person’s injuries, which are also known as damages.

You shouldn’t confuse fault and liability. The person who is at fault for your injuries is the person whose negligence caused the accident. The at-fault person might be liable too. But other parties also might be liable, even if they did not directly cause the accident. In many personal injury cases, the negligent person is not the party who ends up paying for damages. We thoroughly investigate personal injury claims and look for any liable parties.

Parties in New York Personal Injury Cases

There are two types of parties in personal injury lawsuits: plaintiffs and defendants.


Plaintiffs are the injured parties and their loved ones. They try to hold the defendants liable for their damages. They are responsible for proving the defendants are responsible. In other words, they have the burden of proof. There can be one or many plaintiffs. When there are dozens, hundreds, or thousands of plaintiffs, it might be a class action or mass tort claim. During a class action, all of the plaintiffs are certified as a class and represented in one lawsuit. But in a mass tort, each plaintiff brings their own lawsuit, though they often share knowledge and resources.


The defendants are the people who allegedly caused the plaintiffs’ harm. There can be one or many defendants. Defendants can put up a defense on their own or with the help of lawyers. They are not required to prove they did not cause the accident. However, defendants benefit from providing evidence that supports their lack of liability and creates doubt.

New York Personal Injury Claims & Lawsuit Process

We are here to guide you through the personal injury claim and litigation process in New York, including:

The Pre-Litigation Claims Process

  • Retaining a Lawyer
  • Gathering Evidence
  • Calculating the Value of the Case
  • Sending a Demand Letter
  • Communicating with the Insurer

The Lawsuit Process

  • Filing the Personal Injury Complaint
  • Serving the Defendants
  • Receiving the Defendant’s Response
  • Utilizing Discovery
  • Retaining Expert Opinions
  • Going Through Mediation
  • Attempting to Reach a Settlement
  • Resolving the Case or Going to Trial
  • Receiving the Verdict
  • Filing an Appeal

Proving a Personal Injury Claim

When you file a personal injury lawsuit, you have to prove the defendant is liable. You have to present enough facts to convince the jury.

In personal injury cases, the burden of proof (the standard you have to meet) is “by a preponderance of the evidence.” This means you have to present enough evidence that the jury believes it is more likely than not that the defendant is responsible. Proving a personal injury claim requires gathering a great deal of evidence that you can show the jury. This can include photos, videos, audio recordings, police reports, medical records, business records, diagrams, re-enactments, witness testimony, and expert witness testimony.

How Is an Injury Claim Valued?

After an accident, most people wonder “what is my NYC personal injury claim worth?” Many factors influence the value of a case, including the severity of your injuries, the amount of medical treatment you need, how long you are out of work, and whether you suffered a disability that has left you unable to work. We take everything into account when we calculate the value of your case.

Economic Damages (Special Damages)

Your lawyer will begin to calculate the value of your claim by adding up your accident and injury-related expenses, including medical bills, transportation to medical care, at-home care, medical supplies and equipment, prescriptions, and lost income. We also will calculate your likely future medical expenses and wage loss.

Non-Economic Damages (General Damages)

In many personal injury cases, you also can demand compensation for your physical and emotional injuries. We have years of experience placing value of non-economic injuries, like disfigurement or physical limitation, pain and suffering, and mental anguish.

Punitive Damages (Exemplary Damages)

Separate from economic and non-economic, which are known as compensatory damages, are punitive damages. These are meant to punish the wrongdoer, not compensate you for a physical, emotional, or financial injury. Punitive damages are not given in most negligence-based cases. You must prove gross negligence, wanton recklessness, malice, or other egregious behavior to win punitive damages.

Common Defenses to Injury Claims

When you file a personal injury claim, expect the defendant to fight back. The defendant doesn’t want to be held responsible for your damages. Their insurance company doesn’t want to pay out on the claim. You need to work with an experienced New York personal injury to provide a strong argument and overcome the defenses.

Comparative Negligence

The defendant might claim that you or another party was also negligent. They might argue that someone else was mostly negligent. This argument can be very effective in reducing the defendant’s liability based on New York’s pure comparative negligence law. Under this rule, each party involved is assigned a percentage of fault. For example, the jury might decide the defendant was 80% responsible, and you were 20% at fault. The defendant is then only responsible for 80% of the damages. Your compensation is reduced by 20%.

Superseding Cause

The defendant might argue that another person’s conduct was more significant than their own and is the real cause of your injuries. When you prove cause in a negligence claim, you are saying that there is a straight line from Event A to Event B. For example, there is a straight line from a driver running a red light to you being hurt in the resulting intersection collision. But when multiple people are involved, there might be intervening causes. An intervening cause doesn’t always break the chain of events, but it could be such a significant event that it becomes the primary cause of your injuries.

Insurance Issues in Personal Injury Cases

Most personal injury claims settle without going to trial. But many insurance issues can get in the way between you and a fair settlement. Working with a seasoned lawyer can help you overcome these issues and resolve your claim in your favor.

Common insurance issues we deal with include:

  • Negligent party lacks insurance coverage.
  • Navigating between primary and secondary insurance coverage.
  • Insurance company denies its policyholder is liable.
  • Insurance company acts in bad faith or unlawfully.
  • Insurance company refuses to negotiate a settlement in good faith.
  • Insurance policy limit is less than the value of your claim.

The New York Statute of Limitations

Every jurisdiction places a time limit on how long you have to file civil lawsuits. According to New York law, you have three years from the date of the accident to file a personal injury lawsuit. The amount of time differs for other types of lawsuits, such as medical malpractice.

Statutes of limitations seem straightforward. But calculating your deadline to file can be complicated. You should talk with an experienced personal injury attorney about how long you have to file. Certain issues can delay the start of the clock. Other issues can pause the clock, giving you more time to file. Another issue depends on the liable party. If your claim is against a local or state government agency, then you have a lot less time to file your claim. In addition, when filing a lawsuit against a municipality, plaintiffs are required to first file a Notice of Claim shortly after the accident.

We Are Knowledgeable in Many Areas of Personal Injury Law

Personal injury cases include an array of different practice areas, including:

Our law office can handle any serious injury case, and we will guide you to obtain the best possible outcome. You should not suffer as an injured person due to no-fault of your own.

Talk with us About Personal Injury Law Today

We are here to explain personal injury law to you and how to move forward with your claim. You do not have to navigate the complexities of New York tort law yourself. Please do not hesitate to reach out for a free consultation with the personal injury lawyers at Hecht, Kleeger & Damashek, P.C. through our online form or by calling (212) 490-5700 with your questions about personal injury laws.


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“I had the opportunity to work with Jon Damashek and had an amazing experience. I have known Jon for many years and always felt very comfortable relying on his expertise, knowledge of the law, and more importantly – his ability…

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I had the opportunity of having this amazing team of lawyers work on my case. When I first met with Jordan Hecht and Michael Kusz, I really liked their energy and the spunk that they had, it meant business and…

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I cannot recommend Jon Damashek highly enough. I attribute the favorable outcome to my case to his consummate and tireless dedication and tenacity. Just as important, he was truly there with me every step of the way. He was very…

5 Stars Review 5
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I had the opportunity to work with Jon Damashek and had an amazing experience. I have known Jon for many years and always felt very comfortable relying on his expertise and knowledge of the law and more importantly his ability…

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I have worked with countless attorneys over the years and Jon Damashek stands out among them. I have seen first hand him advocate for his clients vigorously. He fights for the rights of the seriously injured, does not back down…

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I know all three named partners at this firm and highly recommend them. They are very professional and tireless advocates for their clients. If you need a personal injury attorney, you cannot do better than Hecht, Kleeger & Damashek.

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After meeting with Jon Damashek I knew immediately he was the right attorney for me. I had met with other attorneys in the past, but Jon’s experience, knowledge, and track record were most impressive. I highly recommend Jon Damashek and…

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After meeting a half dozen lawyers at different firms, I decided to go to Hecht, Kleeger and Damashek. As soon as I met Jon Damashek, I knew I had to look no further. Mr. Damashek made me feel at ease…

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I retained Hecht, Kleeger & Damashek for a serious personal injury case. They were very professional and managed to obtain a settlement for me that far exceeded my expectations. I would strongly recommend this firm for anyone’s legal needs.

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