You do not expect to have to learn about personal injury suits, or medical malpractice. You do not wake up one morning and say, today I am going to be sitting in a car that is struck from behind by another car at 50 mph. You do not expect that your medical provider will misread a positive biopsy test. But these things happen. When they do, life changes, in an instant, and you need answers to many things – right away. Below are some of the questions that our clients have asked us over the years:

How does a personal injury claim work?

The Five Steps of a New York Personal Injury Action: As a personal injury attorney, clients often ask me how their case will progress through the initial event through trial and final resolution. This video explains that process. The complexity, severity and type of a personal injury case can differ, but the five steps remain the same.

Why do some cases settle?

In New York personal injury cases, it is up to the injured party’s attorney to push the case to get to trial. Without such forward movement, the case can stall, delaying the injured party’s recovery. We discuss below how the personal injury attorney meeting deadlines in the case prevents such delay, and assists the client.

Can I Still Bring a Personal Injury Case If I Have Other Injuries or Health Conditions?

Yes you can. New York law allows recovery for any loss or harm that you suffered from the negligence of another person or entity. This law applies to everyone, not just an 18-year-old in perfect health. So, for example, what happens when a 45-year-old construction worker falls from a defective scaffold and re-injures an old back injury? Or a 62-year-old schoolteacher with arthritis with no symptoms gets rear ended from a distracted driver? New York law allows recovery for three types of harm in this case.

If the negligent event aggravated an existing injury that you had, then you can recover from the negligent party the damages and loss caused by that aggravation. Aggravation means “to make worse.”

If the negligent event precipitated the onset of your pre-existing asymptomatic condition, you can recover for that. Precipitation means to accelerate a dormant condition. It also means to bring on a new condition which you may not have developed for many years. So, let’s use arthritis as an example. Most of us at a certain age develop arthritis in our spines, knees, or hips. That doesn’t mean that we feel that. We work and enjoy a full life. Many people don’t know they have arthritis. A sudden crash, fall, or other traumatic event caused by negligence, can change this. These events can jar, move, or damage joints. This can bring on arthritis symptoms or an arthritic condition, that would not have presented at this time in our lives, but for that negligent event. The law allows for your damages and loss from this precipitation.

Finally, if the negligent event caused a new injury, you can recover for that. For example, let’s assume that you injured your left knee playing high school sports. You then fully recover and return to all activities. Fifteen years later a driver face timing his buddies smashes into your car. You suffer a dashboard left knee injury requiring surgery. The law considers this a new injury. The fact that you injured your knee in high school does not prevent you from recovering for this new injury.

What does the law not allow? Claims for only the earlier or other condition. For example, assume a person has a disabling low back condition causing 8 out 10 pain. That person suffers a negligent event but continues with the same symptoms. Assume further that the person does not suffer any new injuries such as a fracture, torn or damaged muscles, ligaments or tendons. In this case, there is no injury to compensate. The person has not suffered a new injury, the low back condition has not been precipitated, and it has not been aggravated. A jury considering this case would find that the person suffered no damages. We would decline that case after explaining the above to this person.

As you might expect, whether an injury is new, precipitated, or aggravated is a medical legal question. If you do suffer injury, we secure all relevant medical records, research the medicine, and meet with your treating physicians. We then determine if any of these three conditions present, and secure full compensation for you if they do.

When trying these cases to juries, we explain how and why the negligent event aggravated, precipitated or caused your injuries. We have 35 years of experience trying these types of cases. We know that the defendants and the insurance companies will quickly blame your negligent event injuries on anything but the negligent event.

Therefore, we start preparing your case on these issue at our first visit with you. That is what we need to do to get full compensation for your injuries. If you have questions, please call us at 518-489-1098 or contact the Law Offices of Patrick J. Higgins online.

Why It Doesn’t End For Injured People When They Get A Settlement

This week a judge approved a settlement for a client that I was fortunate to represent. The settlement exceeded a million dollars. Most people would think this is a lot of money — it isn’t for the injuries suffered. Some people would think that the infant and her parents are celebrating and have hit that proverbial jackpot. They aren’t. A few people might wish that they had received this settlement. They shouldn’t.

As in anything else, the facts control. This was a sixteen year old girl walking in a parking lot when she was run down and over without reason by a 100% at fault driver. No question. Case closed. As a result of the driver’s negligence, this unfortunate teenager suffered fractures throughout her body, underwent seven surgeries in six days, and now has steel hardware, screws and plates throughout her body for the rest of her expected 81 year old life. She has scarring from the surgeries and the injury event. Her body aches at injury sites, not a good sign for the future.

I am worried that she is too young to understand that while my part of the case may be over as to this group of defendants, her reality of living with this injury is just beginning. How much did any of us understand at sixteen or seventeen? What will she be like at 30, if she has children, or 40, or 50, or 60? I don’t know anyone who is the same at 60 as they are at 16. Permanent, traumatic, bone shattering injuries do not age well.

I also worry that while this teenager should be worrying about the usual teenage things, she will shortly need to make adult, tough decisions, that she should not have to make at such an early age.

So it is not over for this teenager. It is just beginning, and that is why I am worried for her. I hope and pray that she finds the wisdom to live with this injury and make the right and hard decisions necessary for her to live a meaningful life with these injuries.

How New York Attorneys And Juries Evaluate Your Medical Malpractice Case

As a medical malpractice lawyer in New York, people often ask me why I accept some cases but not others. Or, friends and family ask me why a jury in one medical malpractice case compensated an injured patient with a large verdict, while another jury turned away an injured patient with no recovery. My answer to these questions? There are certain factors, among others, that medical malpractice attorneys analyze when accepting or declining a medical malpractice case. Juries decide New York medical malpractice cases in a similar way. Once these factors are understood, it is easier to see why certain malpractice cases are accepted or declined, or win or lose in a courtroom.
1. Has a New York medical provider deviated from the standard of care?
In medical malpractice cases, the jury will determine whether a standard of care exists for a medical treatment – such as diagnosing skin cancer – and then whether a doctor breached that standard of care. The standard of care is what the average person means when she says, “I think the doctor did something wrong” or the doctor was “negligent” or “the doctor didn’t do what he was supposed to do.” The legal standard is whether the medical provider’s treatment complied with the good and accepted way of practicing medicine that other providers in the medical community employed at the time of the treatment. The jury’s verdict sheet will therefore ask the jury to answer the question “did doctor X deviate from the standard of care in his treatment of patient Y?” Medical experts from both sides will testify for the jury about the standard of care, and whether the medical provider breached the standard of care. (The jury in a New York medical malpractice case can accept or reject expert testimony as it sees fit.) If the jury answers no, the case is over. So, in evaluating a medical malpractice case, I first evaluate whether a medical provider deviated from the standard of care when treating the injured patient. If the answer to this question is yes, then I will evaluate the second major factor – causation – as will the jury at trial.
2. Did the deviation from the standard of care cause the harm or injuries alleged?
A medical provider may deviate from the standard of care. But if that deviation did not cause the injuries that the injured patient claims in the lawsuit, then that patient will lose the lawsuit. For example, if an orthopedic doctor did not cast a patient’s broken ankle for three weeks, then he may have deviated from the standard of care. But if that delay did not cause the toe amputation for which the injured patient is suing, then the jury will answer no to the question “did the deviation of the standard of care of doctor Y cause the toe amputation to patient X,” and the patient will lose the case. Note that this is true even though the jury may have found that the failure to cast the ankle deviated from the standard of care.
This therefore would be a case that I and most other medical malpractice attorneys would decline.
3. Are the damages in the case too limited to allow an attorney to accept the case?
If the jury answers questions 1 and 2 above “yes” on its verdict sheet, the jury will then turn to the next page on the verdict sheet. That page will contain spaces to fill in dollar amounts for medical expenses, lost wages, home health care expenses, and pain and suffering from the date of the injury to the date of the verdict, and from the date of the verdict to the end of the injured patient’s expected life. The injured patient must prove that he or she suffered these damages. If the jury finds that the injured patient did not suffer damages in a category, it must state “none” in the space for that category. The jury could also fix damages by filling in the spaces with dollar amounts, or some combination of the above. The jury decides what or how much to fill in, including large or small amounts.
Attorneys must determine the damages that could be awarded at trial when evaluating a medical malpractice case. That is because bringing a medical malpractice case to trial is time consuming and expensive. In most cases, attorneys will advance $50,000 to $75,000 in costs through trial to pay for the hiring of experts, depositions, video transcripts, medical records, filing fees, demonstrative exhibits, and other costs. They also will generally put about $150,000 of attorney time into a medical malpractice case. The client is always responsible for the $50-$75,000 in advanced costs, and pays the attorney a sliding scale contingency fee based on the amount of the net recovery. So, if the jury in a medical malpractice case was expected to return a small damages verdict – such as $100,000 – economic realities would likely prevent a medical malpractice attorney from taking that case. The client would reimburse the attorney for $75,000 in costs, and then pay 30% of the remaining $25,000 for attorney’s fees, resulting in a net recovery of $17,500.00. And that is before she may have to pay back Medicare, Medicaid, or a health insurer for the malpractice injury related medical care. A medical malpractice attorney accepting that case would have invested $150,000 of attorney’s time for a $7,500 fee, and would have advanced $75,000 in case disbursements for 3 years. Therefore, most medical malpractice attorneys would not accept this case, even though they wanted to, and even though the case had clear merit. I have been in this position, and I decline such cases. I show the potential client these numbers, explain why I cannot afford to take the case, and suggest that she call other attorneys who might feel differently.

4. Do intangibles exist in a case potentially impacting the verdict?

Juries in New York medical malpractice cases are like juries anywhere else. They are human and thus, emotional beings, with likes and dislikes, feelings, and prejudices. To ask them to put these things aside is not realistic, as they are encoded into the jurors’ DNA. So, when I evaluate a medical malpractice case, I must evaluate how the expected jury pool will react to the potential client. I also need to evaluate how I feel about the potential client. What is my gut reaction? Do I like this person? Will a jury like this person? Do the medical records support the client’s statements? If not, will the jury believe the client over a physician? I also must evaluate the potential client’s prior life story, which may include negative facts. These negative facts might turn the jury away from the client, and predispose the case to a negative result. (Before trial we would move to exclude irrelevant prejudicial matters to prevent the jury from needlessly hearing about them, but nothing is guaranteed). The bottom line is that if I don’t feel comfortable with a potential client, and my gut tells me that the jury would feel the same way, then I may decline the case. It may be that another lawyer would feel differently and better represent the client.
Another intangible that I must assess is whether the client is suing the only doctor or hospital in town, or a well-respected medical institution in a community. I may also be looking at a jury pool that has historically decided against injured patients suing medical providers. Conversely, there may be factors that would cause a jury to side against a hospital or medical provider. Often, none of these factors present, and I am looking at a neutral playing field. In any event, however, I must determine whether these factors present in a particular case, and to what extent. It shouldn’t be that way, but in our imperfect world, it is.

CONCLUSION
There are definite reasons why medical malpractice cases win or fail at trial, or if you have a case, why medical malpractice attorneys will either accept or decline your case. The above factors, although by no means complete, should help explain how juries and attorneys arrive at these outcomes.

Why Is My Personal Injury Attorney Asking Me About Injuries Happening Years Before I Got Hurt

Because he or she knows that the defendant’s attorney will. And when the case goes to trial, if you are injured, your doctor must know about your prior injuries before he or she testifies about your injuries caused by something like a car crash, or medical malpractice.

I know that many people think that the justice system is a windfall system or a lottery, and that facts and rules of law do not control. But they do. In 33 years of practice I have never represented a client who received a large compensatory verdict unless they were hurt so bad they would have given that money away in a millisecond to return to the life they once lived. There is no free lunch in the justice system or anywhere else. (Please let me know if you find that).

But back to the issues of earlier medical records and treatment. Defendant — i.e. the person that is claimed to be negligent — has the right to prove that the injured party — that is the plaintiff — is claiming injuries that were suffered earlier, or resulted from normal aging, and are otherwise the reason that the plaintiff cannot return to work, help around the house, or do the hobbies that make life enjoyable. The defendant also can hire doctors to examine the plaintiff and testify at trial as to their findings. And yes, not surprisingly, these doctors often present opinions to the jury that favor the defendant.

Defendants often also argue that more general chronic conditions, such as obesity, smoking, heart disease, and diabetes will decrease the life expectancy of an injured plaintiff and thus should reduce any jury award because the plaintiff is not going to live that long, or work until normal retirement age.

So that is why your personal injury attorney will ask you when you first talk to him or her about your medical condition and injuries occurring before you were hurt. You can help with an accurate and complete medical history. Don’t worry that it will hurt your case. What will hurt your case is the jury learning about these earlier medical conditions or injuries from the defendant — and thus thinking that you were trying to hide something. So don’t worry — share.

Why Should I Stay Off Social Media If I Am Involved In A Personal Injury Lawsuit In New York?

We live on social media and cell phones — Facebook, Snapchat, Instagram, texts, Twitter, cell phone messages. We believe that these are private communications. And they may be. Until you are involved in a personal injury lawsuit. Then the rules change — at the speed of light. A few months ago, New York’s highest court, the Court of Appeals, ruled that social media communications were subject to the same rules for disclosure in a personal injury suit as any other piece of information. If it is relevant to an issue in the case, the chances are that it will need to be produced. The case for those interested is Forman v. Henkin, (30 NY3d 656 [2018]).

Why does this matter to you? Well consider this. A driver is texting and smashes into the back of a car. That text message and the time of that text message will be admitted at trial to show the person was texting. Or perhaps a driver is looking away and smashes into the back of a car. She then texts to her boyfriend, “OMG I was looking at [you fill it in] and when I looked back I couldn’t stop in time, I am in big trouble.” That text will likely be exhibit one for the injured party at trial.

It also, however, works both ways. An injured party claims that he can no longer leave the house because of a crippling injury. Two days later he posts on Facebook a picture of him hiking in the Adirondacks. Not a good day for that injured party. That will be the first trial exhibit for the defendant.

The takeaway is that if you are involved with a personal injury lawsuit, including a medical malpractice lawsuit, discuss with your attorney that the rules for social media disclosure and privacy have changed, and learn what those rules are.

How Should I Dress When I Go To Court?

One of my clients suffered severe personal injuries in a car wreck last year.  Tonight I sat in a local traffic court when the responsible driver appeared on tickets issued for the wreck.  It was a full calendar, so I had plenty of time to watch other drivers appear before the court. I should know better, but my mouth was still dropping open.   Men came to court with  sandals, beachwear, ripped and dirty jeans, t-shirts highlighting abundant tattoos, and caked, muddy boots.  Women fared better but many still appeared with  nose rings, tank-tops, and the omnipresent ripped jeans.

People, it is not fair but accept that you are judged by your appearance.  I have nothing against any of the above clothing styles.   But this is a court, and it doesn’t matter whether it is a traffic court or the supreme court.  A disheveled,  sloppy, or attire challenged presentation will only emphasize the difference between the court and you, and diminish the chances of your legal arguments getting traction.

In a personal injury or medical malpractice action, your attorney will cover all of this on day one, among other things.  But if you go to court on your own, consider how you are presenting. Dress like you are interviewing for a job, or going to a house of worship, if you are religious. For men, this could mean khakis, dress shoes and a collared or polo shirt, clean and well pressed. For women, similar appropriate attire.  The point is that you want your appearance to help your legal position, not to hurt it.   Is this common sense?  Yes, it is or should be.    Tonight it was hard to stay in my seat.

Should I Email My Personal Injury Attorney From My Work Email?

I like hearing from my clients – except when they email me from work. Why?    Because that email may not be protected by the attorney client privilege, and therefore it may harm the client’s personal injury or medical malpractice case.

A bit of background.  In New York, communications between clients and their attorneys are generally protected by the attorney client privilege.  So, if a client tells me something in the context of the attorney client relationship, that information is confidential and neither my clients or I can be forced to disclose that communication.  (For my legal colleagues yes there are exceptions, but let’s set those aside for the moment.)   This helps clients communicate honestly and openly with attorneys such as me.

But if there is no “expectation of privacy” clients and attorneys can destroy that privilege.

And that brings us back to work, and the client’s “expectation of privacy” at work.  In short, at this point, in most workplaces, there is none. New York courts have found no expectation of privacy if the employee accepted an employer policy and procedure manual that stated that there was no email privacy, when the client emailed her attorney from the employer’s server, when  the client emailed the attorney using a work email, when third parties had rights and access to the email server,  and when the employer monitored emails and notified the employee of such monitoring.  (See Perenboom v. Marvel Entm’t LLC, 2016 NY Slip Op 31957[U],*6 [Sup Ct. New York County 2016]).

Because these factors are common in today’s workplace, as a client you should assume that any emails that you send to your attorney from your workplace are not privileged and can be accessed by opposing counsel with enough effort. The takeaway?  Simple.  Do not send emails to your attorney from work.  Wait to get home to send that email to us.

The takeaway for my professional colleagues?  If you have not done so already, consider advising your clients in writing to avoid work emails and put that in your retainer agreement.

Should You Have a Surgery Because Someone Tells You That It Will “Help” Your New York Personal Injury Case?

NO. Let me say that again NO.

Many well-intentioned injured clients over the years have asked me that question. For example, a client suffers injury in a car crash. He has intractable back pain. A spine surgeon recommends an elective surgery. But the surgery could fail, or even make things worse. The client is trying to figure it out. He calls me to let me know. The surgery is a major event for him.

He also tells me about his Uncle George. Uncle George thinks he is an expert on everything – including personal injury cases. Uncle George thinks that the client’s personal injury case will be worth more if the client has the surgery. This is because of the pain, suffering and disability from the surgery. Uncle George in his infinite wisdom tells the client that he should therefore have the surgery.

After many years representing injured clients, I am used to these calls. I am relieved and appreciative that my client has asked me this question – before doing anything.

The first thing I say is, “the case follows the medicine, the medicine does not follow the case.”

A personal injury case has only purpose – to restore to the client what has been lost from another party’s negligence. Expert doctors, economists and life care planners determine this. They educate us – and the jury — about the client’s medical condition, disability and financial losses. It is not the other way around. We are not doctors. We don’t give medical advice. Whether to have a surgery is a medical question – not one for a personal injury lawyer. That is why we always tell the clients “the case follows the medicine.”

A personal injury case also doesn’t create damages. It is only the vehicle that allows a jury to decide whether damages should be legally assessed, and if so to what extent. Therefore, an injured person’s medical treatment should not differ because the person has a personal injury case. In our clients’ cases, it doesn’t.

So what do we tell the client ? We advise the client that Uncle George is wrong. We advise the client to focus on getting better, and getting back to his pre-injury state, or a new normal. This means making the best medical decision for the client, and his family. Nothing else matters. The personal injury case doesn’t dictate the medical treatment – ever. That is not the purpose of a personal injury case.

We tell the client to talk to his family and medical team – not Uncle George — and understand the options. Then we get back to our job in a personal injury case — following the medicine.

How Arbitration Can Help Your Personal Injury Case In Upstate New York During The Covid 19 Pandemic

Not surprisingly, COVID 19 has significantly impacted many personal injury court cases.  It is harder to get trial dates.  When we start a trial, COVID 19 protocols make that trial harder and longer.  Vaccination issues can further complicate a trial (Spoiler Alert — stand by for my next article as to how vaccination status might impact a jury verdict).

So what can be done to keep personal injury cases moving during the COVID 19 pandemic?

Arbitration is one option. It is an existing alternative to a traditional personal injury court case.  Unlike such a case, arbitrations do not have full blown pre-trial proceedings, motions, and a jury trial.   Instead, the parties submit their dispute to a decision maker, usually a retired judge, practicing attorney, or professional arbitrator.  They also choose the rules for arbitration.  The arbitrator decides the case by reviewing the parties’ case records and summaries, and hearing their testimony.

This can make arbitration an attractive option for a personal injury case during COVID 19 for three primary reasons.

  1. Arbitration is quicker and can be done virtually

A personal injury arbitration is much quicker than a court case.  It is easy to set up. The arbitrator often hears testimony in a day or less.  He or she reviews the submitted records and usually issues a decision within a month.  If you have suffered lost wages, uncovered health care expenses, or unreimbursed damages because of your injuries, and you can’t wait for a COVID 19 trial date, this quicker resolution might appeal to you.

COVID 19 restrictions also do not impact arbitrations because the parties can agree to appear before the arbitrator virtually.

  1. Arbitration is usually final

The arbitration decision, except in rare circumstances, is final, without appeals.  If you are injured and win at arbitration, then the defendant or his or her insurance carrier usually pays within 21 days after they get the closing documents.  In a court case, even after the jury reaches a verdict, post-trial motions and appeals can take another year to play out. If legal errors are found, you may have to try the case again to a new jury.  So a jury verdict may not be the final decision, unlike in an arbitration.

  1. Arbitration costs less

Personal injury court cases are expensive.  In the Albany, New York area where I practice, your orthopedic surgeon may charge $7,500 to $10,000 to testify at trial about your medical treatment. Economists, accident reconstructionists, liability experts, and life care planners charge from $2500 to $10,000 for trial appearances.  Of course, not every case needs these experts; many don’t.  But you get the picture.

In a personal injury arbitration, unlike in a court case with a jury trial, experts often don’t testify in person.  Instead, they may submit a sworn statement of their opinions to the arbitrator.  Their charges for this are substantially lower than their trial appearance charges. This can translate to a larger net recovery for you at the end of the day.  This is particularly true if you have been injured, for example, in an automobile crash where the careless driver has limited insurance and no assets.  In that case, going to trial and paying for experts could swallow up a big chunk of your net recovery.   That doesn’t make sense.

Like anything else, arbitration has potential downsides. Traditionally, many attorneys believed that jury verdicts tended to be higher than arbitration awards.   Further, on a complex legal case your attorney might not want to stake everything on a single arbitrator getting it right.   And sometimes, we need the full tools of a court case to discover facts to prove your case.

Each personal injury case is different.  If you have questions, call us at 518-489-1098 x 17 or contact us by email here. [email protected]

What Do You Need to Know About a Deposition in a New York Personal Injury Case?

When our clients suffer injury because of a car accident or medical or other negligence, they are plunged into a world they’ve only seen on TV. Words that they usually hear from famous actors in suits walking through dramatic courtroom sets become commonplace. Clients tell us it is often easy to get swept up in the legal jargon. Fortunately, real life is not as dramatic as what you see on TV, but it can be just as confusing. We’re here to help you understand the legal process you’ll be undertaking, starting with one of the most important parts of any case – the deposition.

So, what is a deposition in a New York personal injury case? It is sworn testimony that the injured party and the defendant give under oath during the case to help parties learn facts about the case and prepare for trial.

Depositions are critical in every personal injury case. It is the only chance for each side to size up the opposing party, learn the facts that will come out at trial, and to nail down those facts through sworn testimony to prevent surprise at trial. It also allows each side to evaluate the case for settlement.

The deposition usually takes place in an attorney’s conference room. We like to have our clients appear in our offices, as do most attorneys for their clients. When our clients walk into the conference room with us, they see the defense attorney, occasionally the defendant, and the court reporter (aka stenographer).  If there is more than one defendant then there will be more than one defense attorney.  (Each defendant will have an attorney that can ask questions.)

If you are the injured party, you will sit on one side of the table and the defense attorneys will sit on the other side. The stenographer will swear you in.  Then you will answer questions about many things, including the events in dispute, your injuries and/or damages, your personal background, and how the injuries have impacted your life.  It is important that you answer these questions honestly, but with as little unnecessary information or guesswork as possible. If you don’t recall certain information, it is more than okay to say so.

It’s perfectly natural to feel nervous about a deposition. After all, it’s not often that everything you say is put under a microscope.  You naturally want everything to go well with so much at stake. We will be with you at the deposition to make sure your rights aren’t being infringed upon and that you aren’t being asked inappropriate or irrelevant questions. You can take a break if you choose, speak to me if necessary, and have the question read back or rephrased if you don’t understand it.

Though it can sometimes be a long process, it is a good thing when you testify at deposition. It means that the case is moving, and you are getting closer to resolution by trial or settlement.

We understand you will be nervous walking into a conference room with an opposing attorney. It would be strange if you weren’t.  So, we will be with you every step of the way.  We will prepare you before the deposition so that you will feel – and be – ready to testify.  When it is over, most likely you will tell us that it wasn’t that big a deal, and there was really nothing to worry about.  So how do you go from being nervous and apprehensive to feeling like you are ready for the deposition?

How to Get Ready for Your Deposition in a New York Personal Injury Case

You must first understand what a deposition is – and what it is not.  We set forth below some of the important lessons that we share with our clients before depositions.  These are some but not all the items that we cover in deposition preparation with our clients.  The biggest lesson – too obvious for its own section – is to be honest and accurate in your testimony.  Without this, everything else fails.

Lesson 1 – A deposition is not a conversation

In everyday conversations we interrupt, anticipate, free associate, go off topic, segue, and joke. These conversational habits have no place at deposition. At deposition you answer questions under oath – and only those questions. There is nothing else – no unnecessary explanations, no volunteering of information, no thinking out loud, no unrelated topics.  There is only a specific answer to a specific question. This is a critical fact that our clients learn before deposition. Would you like a simple example?  Try this:

Conversation:

Q:  Do you know what time it is?

A:  Yes its six o’clock and thanks for reminding me, I am late for dinner with my husband, we are going to the corner restaurant for a quiet dinner…. we have been having some issues with our youngest child and we needed some time to discuss…. how have you been?

Deposition:

Q: Do you know what time it is?

A:  Yes.

This example sums up this lesson. Once you internalize this fact, everything else makes sense. So how does this work in practice?

Answer any question with a “Yes” or “No” if you can. The defense attorney may try a variety of tactics, from joking to intimidating to downright boring you to draw you into a “conversation” with her. Once you fall back into that mode, you will be volunteering information, and running on about things that are not responsive to the question, but which can provide information that can hurt you. Remember — a deposition is not a conversation. Keep your answers short and directly responsive to the question, stop talking as soon as you have answered the question, and you will do well.

Lesson # 2 – Silence is your friend at Deposition

 When you first meet and talk with someone, you may encounter the awkward pause.  There is nothing to say, so you frantically try to come up with anything to fill that silence. Or if you are in a social gathering and you are nervous, you will make conversation to feel more at ease. Both habits are socially ingrained. You must leave both at the door of the deposition. Because like your other normal habits discussed above, they will only hurt you at deposition.

Remember, you are at a deposition only to answer specific questions, and nothing else. Defense attorneys know about socially ingrained habits, and they will provide nonverbal cues and prompts to get you to keep talking after you have finished your answer. They may be friendly, and you may be tempted to let your guard down and keep talking after you answer the question. You may want to fill in the silence that hangs over the room with five people just looking at each other. Don’t do it. Instead, embrace the silence. Take a minute to take a deep breath. Silence is your friend. Your brain is thinking of gaps in conversations, but you are not in a conversation. You are at a deposition, and in this arena, you should appreciate silence and use it to your advantage. This also means keeping silent during breaks. There is no small talk or banter.

Lesson # 3 – A deposition is not the place to explain your case

Our clients often feel that if they just explain what happened to the defense attorney then the defense attorney will understand, agree, and the case will resolve. This is a perfectly normal feeling to have. You want to be heard and understood. But here is the hard truth. The defense attorney and the defendant’s insurance carrier have already assessed the case. They likely know that their client is responsible, and that you are due substantial damages in compensation under the law. It doesn’t make a bit of difference.

The defense attorney will still use the deposition to minimize her client’s liability and your damages – in every case and no matter what the facts. Don’t take it personally. That’s just the way it is. Trying to explain what happened to the defense attorney will only backfire and work against you. Trust us on this. Just answer the questions you are asked – and leave the room. You will explain what happened at trial to the jury.

Lesson # 4 – The Zen of deposition – slow and steady carries the day

We live in a time starved culture. Everyone hurries. We talk quickly. When we get nervous many of us talk even more quickly. And when we know the answer to a question, we jump in on the question before it finishes to answer it. All these ingrained habits work against you at a deposition.

In a deposition things are different. Although it may seem counterintuitive – and it is – the slower you speak and the longer you take before you start answering a question – the quicker and easier the deposition goes. Why? Remember the stenographer. He or she is most important person in the room. As you jump in on a question before it ends, or answer with no pause, or talk quickly, you are stressing the stenographer. At a certain point, the stenographer will stop the deposition, throw up the hands, and say, “stop let’s start over again.” Then you must start the question answer process again, or have the question read back again. If this happens enough times, you will have a disjointed record and you will be at the deposition much longer than you or we want you there.

So, wait three seconds after the question ends to form your answer and then say your answer. This also gives your brain time to frame and consider what you are about to say and weigh in and tamp down the emotion. This is a crucial skill that we will help you learn.

The steady part of this lesson means your demeanor, or how you are presenting to, and interacting with the questioner at the deposition. We prepare our witnesses to show up with a calm, measured, non combative demeanor. This means that they don’t take offense to a question, or to a questioner. They don’t argue with the questioner. They don’t roll their eyes or get frustrated or angry. We also prepare you also not go the other way, by joking around with the defense attorney, or making small talk. All these things are normal to varying degrees. None of them help you at deposition. So, we prepare you to be calm, polite, and focused, and to stay that way until you are in your car in the parking lot. Then you can call us and vent.

Lesson 5 – Don’t assume or guess anything

In our everyday life, we assume things and state them as fact – quite frequently. You cannot assume anything at deposition. You can testify to what you saw, said, heard, wrote, received, smelled, or remember about an event. But not to what you assumed. And certainly not to what you are guessing occurred. These are not facts and they have no place at a deposition.

Lesson # 6 – Don’t keep us in the dark when preparing for deposition

It is normal to feel uncomfortable discussing with us things in your past that you would prefer to forget. Maybe you failed to file taxes, had an affair, or were convicted of a DWI. Maybe a reckless driver t-boned your car and smashed up your knee. Why bring up that old high school knee injury to the same knee that happened so long ago? We understand that you don’t want to tell us about these types of things. But you need to get past that when you are preparing with us for a deposition. Here is why.

The defense attorney most likely already knows about them. Not to freak you out, but it is very easy now to learn just about anything about anybody. You should assume that the defense attorney will possess all your prior employment, medical, criminal, prior claim, and insurance records. This information can be used against you at the deposition, particularly if you deny facts that the jury later learns are true. This is also true for social media.

We have seen this unnecessary damage to our clients at depositions many times.

You can prevent this in your case by sharing this information with us before the deposition. We can then evaluate the information and prepare you for how to answer these questions. Additionally, if these topics are off limits for a deposition, we can research applicable cases and be prepared with such case law at the deposition. You need not bear the added stress of not preparing for these types of questions, worrying that they will come up, and how you will answer them, without our help and guidance. So, share the skeletons in the closet with us and feel that weight lift off your shoulders. Let us help you on this.

Lesson # 7 – Dress for success

We know that people should not judge a book by its cover. But everyone does. And this is particularly true at depositions. The defense attorney will be viewing you through the eyes of the jury and will be advising her carrier about whether you make a good appearance. Your dress is a big part of this. The important thing is that you are comfortable in what you are wearing at the deposition, and that it presents a neat, clean, and positive impression of the person that you are.

We used to leave it at that, but quickly realized that everyone has a different view of what this means. So, we now will tell you as our client that you should dress like you are going to a house of worship or a semi-formal event. For men this means a collared shirt, slacks, dress shoes, and a clean well shaven face (unless you have a beard.) For women, a dress is fine, as are dress pants and shirt. We suggest that all tattoos be covered, to the extent possible, and that facial rings and piercings be removed.

If you are not sure what to wear, don’t worry, we will cover this with you during our deposition preparation session. If you want to read more about why proper attire is important, please see our FAQ entitled “How Should I dress when I go to Court?”

So now that you know how to be well prepared for your deposition, it’s as simple as answering questions about your accident or injury so we can get you one step closer to your final resolution.

What Questions Will They Ask at My Deposition in a New York Personal Injury Case?

If you’ve read this far, you’ve probably got a good idea of what kinds of questions to expect at your deposition. As we outlined earlier, the deposition serves as a way for both parties to learn the facts about the case under sworn testimony to develop a trial strategy. So, before a deposition you should expect to answer questions regarding everything the defense feels are relevant  to your injury or accident.

The three main topics the questions will cover are your background, your experience of the events in question, and the physical and financial ways in which the events have impacted your life. All these topics pertain to your own experience, so apart from the preparations we’ve already discussed, all you need to do is answer these questions honestly.

The questions about your background will cover much of what you might expect, namely, where you live and work, your family, your income, etc., but you may also be asked about prior medical conditions and injuries before your accident. From here you will usually be asked about the disputed events and the medical treatment you received after said events took place. This may include questions about how a car crash occurred, your time of arrival at the hospital, your symptoms upon arrival, and any discussion you may have had with your doctor. We know that your injury was most likely a hectic and traumatic experience for you, so again, if you don’t remember specifics about the incident it is okay to say so. Finally, you’ll be asked about your injuries and the financial impact/loss of income caused by the events.

What Do I Need to Do After the Deposition to Complete the Deposition Process?

When the deposition is over, you’ll speak to us, head to your car, and go home. Probably you will head for the couch, ice cream, and a comforting TV show. You’ll be relieved and tired. Hopefully, you will feel that you’ve done well at deposition and helped move the case forward. But this isn’t where the deposition process, and your  role in it, ends.

After you leave, the court reporter will take all of your testimony and compile that into a book, which is called a deposition transcript or in New York practice terms, an “EBT” or  “Examination Before Trial” transcript. The court reporter will send this transcript to the defense attorney, who will in turn send it to us. You will then have 60 days to read the transcript and look for any errors the court reporter may have taken down before returning it to us so we can return it to the defense. Before you return it, you have to execute it before a notary public.

What kind of errors are we looking for, and what can we do with those errors if we find them? Basically, we are looking for clear errors in your transcribed testimony. For instance, if the court reporter has taken down the word “yes” when you said “no” then of course this is something that must be changed. We’ll also look to see if the court reporter took down or misspelled words. However, if you would simply like to change the way you said something because you think you could do a better job, that’s not an “error” we will recommend you go back and change. If there are valid errors, we’ll have you execute what is called an errata sheet which is attached to the transcript to make those changes. That errata sheet also has to be executed before a notary public. (If there are no changes, you don’t do anything with the errata sheet). You send the executed deposition transcript back us with the executed errata sheet if any changes and we send it to the defense attorney.

Why Is My Deposition Testimony So Important in a New York Personal Injury Case?

The deposition is used in many ways, most importantly at trial.  For example, if you at trial testify that the light was red, and in your deposition you testified that the light was green, then the opposing attorney can produce your executed copy of the deposition transcript and confront you with it. We can also use a deposition of the defendant in the same way. Both sides can also introduce deposition testimony directly into the record by reading it to the jury. For example, if the defendant in a car accident case testifies that he ran the red light and smashed into your car, then we can read that deposition testimony directly to the jury on our case, and we don’t have to call the defendant to get this testimony in. This is a major benefit for us at trial.

The deposition is critically important in a New York personal injury case. We will be there with you to help prepare you for your deposition. This will further your case at trial, and move you forward to final resolution, and to get on with your life. A well delivered deposition is one of the hallmarks of a successful client attorney team. At the Law Offices of Patrick J Higgins PLLC, we pride ourselves on this process, and we will work our hardest to ensure that this key part of your case goes smoothly.

What does it feel like to get hurt in a New York car accident and bring a legal claim?

The day when our clients’ lives change forever by car accident starts out like any other day. The clients are doing what they always do – driving to work, going to the grocery store, returning from a trip, or taking their kids to school. Nothing tells them that they are spending the last hours of their pre-accident life. It is just another day.

Until it isn’t.

A car accident is over in less than five seconds. Our clients usually do not know what hit them. Then come the paramedics, the emergency room, the operations, and the hospital and rehabilitation facilities. The clients see the long road ahead. Their first emotions are usually shock and disorientation. How could their entire life change so quickly and permanently, because of one driver’s bad choices? They think – is this me now? How can I work again? Am I ever going back to my pre-crash life? Why me?

As the days stretch into weeks, and then months, clients often feel sadness and grief. They reflect on their former life and compare that to their post-accident life. They often struggle with this difficult process. But in the end, we often see acceptance, followed by strength and determination. We see perseverance, humility, and courage. Clients move forward to create a new normal. They regain the essence of who they are – and who they want to be.

That is a good thing – because the legal claim process to regain what has been lost is not easy. And there is no time to delay. There are medical bills to pay. It is hard living without a paycheck.

Most of our clients do not know anything about the legal claim process. They think that the insurance company for the offending driver will quickly compensate them. After all, usually there is no dispute that such driver caused the clients’ injuries.

We really wish it worked that way.

We tell our clients – we are sorry. It does not work that way. The insurance company exists for its shareholders. It is in no hurry to pay full compensation for its offending driver. Then, to add insult to injury, the insurance company starts asking questions about prior accidents. It wants the clients’ entire life history. It asks the clients to submit to multiple examinations. Then it sends a lowball settlement offer.

What do our clients feel at this point? Bewilderment. Anger. Frustration.  They are learning to walk again, and the insurance company is offering pennies on the dollar? Clients ask us – “Can they do this?” We say, “regretfully yes.” We explain that it is not personal. It is about the money.  No, it is not right, but there it is.

The clients feel betrayed and attacked – as if they did something wrong. They say, “I feel like I have been hit again.” They ask us, “don’t they know that I was sitting at a red light?” or “don’t they know that I hate not working?” We know. We tell them that they did nothing wrong. Sometimes it helps, sometimes it does not.

Our clients often feel anger towards the offending driver. They see themselves confined to a hospital bed or wheelchair while the offending driver posts on social media about his weekend parties.

But the clients go on. They work hard on getting back as much as they can. They work hard to return to work. We work hard for them. We sue the case. We move the case as quickly as we can. Time passes. We keep pushing. There is push back. Sometimes the defense attempts to stonewall the case. We keep pushing. The clients keep working and making gains.

Another emotion from clients is surprise, and frustration, as to how long the process can take. We understand these emotions. We tell the clients that we can only prevail by pushing the case as fast as possible. We work with the client on that. But we get that it seems like a long time even with a fast-moving case.

At a certain point, we get a trial date. Most clients do not want to go to trial. They also did not want to undergo multiple operations or learn to use a body part again through painful physical therapy. But they did. Because that was what was necessary to move forward. So trial is just one more thing they must do. They will be ready. With the clients’ help, we bring the case home by settlement or verdict.

Once it is over, we see the clients’ surprise and relief. They feel a weight lift off their shoulders that they did not realize they were carrying. The case is behind them. They can move on with life. They are often grateful to us for working with them to reach this point. Then the clients leave our office, hopefully with forward looking optimism, steeled by the hardships of the car accident and its effects.

There is nothing easy about any of this. Getting hurt in a car accident is not a good thing. Ultimately, however, our clients recognize that they are not victims. They are fighters. At the end of the process they have come through the fire and returned to their life – albeit different – but with increased resilience and strength. It is our privilege to walk with them through this journey, and we are better for it.

Who Are The Different Insurance Adjusters That Will Call You After A New York Car Accident?

It is bad enough getting hurt in a car accident from a negligent driver.  If you are lucky enough to come home from the hospital and take phone calls, you will find some new best friends – adjusters from insurance companies covering different losses from your car accident.  

Knowing why these adjusters are calling, and their differing roles, can help you get the benefits you need, while preserving your interests in a personal injury action.   Here are the most common adjusters that you may encounter after your car accident. 

The No-Fault Adjuster

New York state no-fault coverage provides medical care and a percentage of lost wages for injuries suffered in a covered car accident in New York.  Usually, the no-fault carrier for the car that you are driving or riding in provides no-fault coverage.   Its adjuster will communicate with you about your injuries, medical treatment, lost wages, and billing or documentation.  It is in your interest to return these phone calls and provide the information requested, and to timely fill out the necessary documents.   

Video: Why you should consider getting New York OBEL and APIP extra no-fault benefits

 

The SUM Adjuster

New York SUM/UIM coverage (“SUM”) is insurance coverage that you buy from your automobile insurance carrier that may cover certain of your losses if the negligent driver is underinsured or uninsured. If you are not represented by an attorney, you are likely to get calls from the SUM carrier adjuster seeking to take a statement, and asking for medical records and authorizations.   The SUM carrier is potentially at odds with you over the value of your injuries, and whether it should pay you from its policy.  Therefore, we direct the SUM carrier for our clients to only deal with us.    

Video: What is New York SUM coverage and why is it so important that you have it before a car crash?

 

The Property Damage (PD) Adjuster

Hopefully, you have New York collision coverage on your automobile.  If so, generally you will submit your car damage claim to your automobile insurance company under such coverage.  It will assign a property damage (PD) adjuster.   You will communicate with the PD adjuster about having your car inspected for repair or to be declared a total loss. The PD adjuster may also contact you about any rental car coverage, handling the existing debt on the car if it is a total loss, where and how the car will be repaired or inspected, and the timing of same.     

The Negligent Driver’s Bodily Injury (BI) Adjuster

This is the adjuster for the automobile liability insurance company that covers the negligent driver that hit you.  It is the insurance carrier that will pay for your injuries and loss for which the negligent driver in legally responsible, up to the level of that policy. In multi-car accident cases, there may be multiple BI carriers, and therefore multiple BI adjusters.  In our view, these adjusters usually do not act in your best interests.  They protect their insured driver and the assets of the insurance company for which they work.  Their job is to pay as little as possible for any personal injuries or other damages that you have suffered.   The BI adjuster will attempt to get a written or recorded statement from you.  We do not believe that these statements help anyone but the negligent driver’s liability insurance company. Therefore, once we represent an injured person, we immediately stop all contact between the BI adjuster and our client. 

The Workers Compensation Adjuster

If you suffer injury in car accident while you are working, workers compensation should cover that injury.  In such case, the workers compensation carrier adjuster will communicate with you about your medical bills, lost wages, approvals for medical treatment, and medical examinations.  This is like the role of the no-fault adjuster, although there are differences.   

The Private Investigator

Drivers working for large corporations sometimes hit and hurt our clients in car accidents.  These corporations are extremely sophisticated — and quick to act.   In one of our cases, a private investigator from the driver’s corporate employer arrived at a crash site within 40 minutes of the crash.  He also attempted to see our injured client in her hospital room on the same evening as the crash.  We stop that contact immediately.  Usually, the private investigator is seeking information to use against our client.  

We suggest that you compile a list of all the adjusters involved with your car accident.  Keep your list handy so you will know who you are talking to and can respond accordingly.    If you have questions about this or other car accident related issues, contact me at 518-489-1098 x17 or check out the FAQs and blog posts on this website.  

How Do Lawyers Get Paid in New York Personal Injury Cases?

You may have suffered injury in a car accident or worksite accident. Now you can’t work. The medical bills are piling up. You are thinking about calling a personal injury lawyer. But you don’t know anything about the legal system – such as how lawyers get paid in personal injury cases. You need to learn how this works – and quickly.

So how do you pay a personal injury lawyer to represent you for injuries you suffered in a car or worksite accident?

Usually through a contingency fee agreement.1 The attorney receives a percentage of any recovery as a legal fee, with reimbursement of the case costs. The client pays the attorney at the end of the case from the recovery. If the case fails, the client does not owe the attorney a legal fee, or unless the client chooses otherwise, case costs.

Note two key terms – legal fees and case costs. Legal fees are what attorneys charge for their services. Case costs are expenses that the attorney lays out in the personal injury case. These are for court filings, experts, exhibits, medical records, and depositions, among others.

In New York state contingency fee agreements, the legal fee is usually one third of the recovery in a personal injury case. (See 22 NYCRR § 806.27). Medical malpractice cases have lower fee percentages. (See Judiciary Law § 474-a). Other states have different percentages and rules.

New York clients possess choices on fees and costs. This includes who pays the case costs if the case fails. For example, the attorney lays out $15,000 for case costs. The jury finds against the injured client. There is no recovery.

Does the client pay the $15,000 in costs?

Well, it depends. The injured client may not possess the financial resources to pay these costs if the case fails. In that case, the contingency fee agreement would provide that the attorney lay out the $15,000 in costs, and take full responsibility for them. Therefore, the attorney – not the client — takes the financial risk of losing that amount if the case fails. In return for this risk, the attorney’s one third legal fee is calculated on the gross recovery.  This is usually called Option 2 in New York personal injury contingency fee agreements.2 Many clients choose this option. They do not want to be responsible for the case costs.

There is also an Option 1. Under it, the client must pay all case costs if the case fails.

Why do some clients choose this option?

Because under New York state court regulations, under Option 1, the attorney’s one third legal fee is calculated from the net recovery. (See 22 NYCRR § 806.27 (c)(1)).

To see how these options work, consider the following example. The attorney works on a case intensively for two years. It settles favorably for the injured client shortly before trial for $300,000.00. The attorney’s firm has laid out $10,000 for case costs. The client has chosen Option 2, so the client is not responsible for case costs. The legal fees under Option 2 are one third of $300,000 (the gross amount) or $100,000.  The attorney also receives back the $10,000 in case costs from the recovery.

What if the injured client selected Option 1?

The client is responsible for the $10,000 in case costs if the case fails. From the $300,000 recovery, the $10,000 in costs are deducted before calculating the legal fee. That legal fee would be one third of $290,000 or $96,657.00. The costs would be paid from the recovery.

So which option is better? It depends on the client. The client under Option 1 received $3,343.00 more from the settlement. But the client also risked paying back the case costs if the case failed. Under Option 2 the client received $3,343.00 less from the settlement. However, she was never responsible for paying the case costs if the case failed.

In our experience, as indicated, many clients chose Option 2 because of the case costs. Some do not, however. Our contingency fee agreements lay out both options. We are pleased to answer questions about these options and our contingency fee agreements. Please call us at 518-489-1098 or contact us online with questions.

1 Clients can hire an attorney on an hourly basis. The client pays for legal fees and costs on a monthly basis, whether or not the case succeeds of fails. In 35 years, no personal injury client has hired us on an hourly basis.

2 This option is not available in medical malpractice actions.

A Negligent Driver Just Injured A Member Of My Family In A New York Car Crash. What Happens Next?

You get that call that no one wants to get. It is the hospital. A family member has suffered significant injuries in a car crash caused by a negligent driver. The news is grim: multiple fractures, a closed head injury, an uncertain future. Sleeping at the hospital during the first few days, you are overwhelmed by shock, fear, and disbelief.

As personal injury attorneys, we have unfortunately seen this tragedy play out many times. During this difficult time, we need to do our job without adding to the family’s burden. We therefore hold off on our questions or requests for information that can wait to a less trying time.

But other things can’t wait. Evidence is like fresh snow. It doesn’t last long. So we may hire an investigator to photograph and examine the crash site and vehicles, interview witnesses, and run title, registration and other searches on the offending driver. We may also interview the responding police officers while they still remember the crash, and we will pull the police accident report as soon as it is ready. We will also find out if the negligent driver owned the vehicle that caused the crash. If she didn’t, there may be additional liability coverage for the losses at issue from the owner’s liability carrier.

Once we have identified the liability carriers for the offending driver and/or owner, we place those carriers on notice of the claim. We also request pursuant to New York Ins. Law § 3420(f)(2)(A) that the carriers confirm the liability policy limits in writing within 45 days, including all excess or umbrella policies.

If within the scope of our retention, we also ensure that a no-fault claim is submitted for mandatory no-fault coverage. This coverage pays for, among other things, the medical bills incurred as a result of the crash, and a percentage of lost wages, up to $50,000. We also will identify and place on notice further levels of no-fault coverage called in New York Additional Personal Injury Protection (APIP) and Optional Basic Economic Loss (OBEL).

We also determine whether the injured family member or the members of her household have in their automobile policies Supplemental Uninsured/Underinsured Coverage (SUM). This SUM coverage, if higher than the available limits of the offending driver and/or operator’s policy, may provide additional coverage to the injured family member for the crash related injuries and losses.

Another important issue is whether any health insurance carrier, government agency (think Medicaid or Medicare) or APIP no fault carrier will seek to be repaid for the medical bills that it paid for crash related treatment. Without getting into the weeds here, this may depend on the applicability of state versus federal law, New York state laws such as GOL § 5-335, and the terms of the health insurance policies.

In the first few weeks, if the family is up to it, we may also discuss how law suits work, how long it will take, the type of losses and harms that can be recovered, the costs of bringing the case to trial, and whether there is enough liability insurance coverage for the injuries suffered. If there is limited coverage disclosed, then we explain what we will do to search for additional coverage and assets. Often the family just wants to know that we are doing what is needed, and will defer these details for later.

That generally gets us through the first two weeks. During this time we will meet with the family and the injured family member at the hospital, or at home, as often as needed on whatever schedule works for them.

The first two weeks is only the start of our job, but it is a critical phase in a personal injury car crash case in New York. In upcoming posts, we will discuss how we take the injured family member’s case from this immediate post crash phase through trial.

How much time do I have to bring a lawsuit if I am hurt in a New York car crash ?

Well, we are glad you asked. First, our obligatory lawyer stuff. We are not giving you legal advice. This is just a general discussion not specific to you or anyone else. If you need advice about a specific case, then see a lawyer.

Okay, so here are the basics. If you are a competent adult, and you suffer injury in a car crash in New York, you have three years from the date of the car crash to bring the lawsuit by filing it. If you are interested, search New York CPLR 214(5).

The time to bring a lawsuit for a car crash will differ if the driver that hit you was working for a town, city, county, or municipal agency, or the state, and you want to bring a case against those entities. It also will differ if you are suing for a minor under the age of 18, or if the person that hit you leaves New York State after the crash for four months or more. That is why we suggest you consult with a lawyer. If you are interested, search New York General Municipal Law Section 50-e, New York CPLR 207,  New York CPLR 208, or New York CPLR 217-a.