The Late Notice Of Claim
THE “LATE” NOTICE OF CLAIM
While this subject was already touched upon in our (now archived) blog post of November 20, 2009, the significant number of calls received which include expressions of fear that a belatedly recognized Notice of Claim filing requirement may have been missed, prompts this additional posting.
The major technical standard that courts will evaluate in determining whether to grant a “motion to file a late notice of claim” is, as previously noted, whether the municipality or the quasi-municipal entity will be prejudiced by the court granting the motion. (As to what constitutes “prejudice,” refer back to the 11/20/09 posting). Lack of prejudice alone is, of course, not enough, and having been ignorant of the requirement to file the Notice of Claim will carry virtually no weight with the court.
We presented before conditions of infancy, and physical or mental incapacity (with accompanying documentation), as grounds for court leniency.
To these we can add death, where statutory law will operate to grant time for probate procedures to take place.
There may be instances where the court will find that a Notice of Claim was actually filed but, through error, it was filed utilizing the incorrect name of the public agency. This is NOT the same as serving the wrong agency (and experienced attorneys will fully recognize that extreme caution must be used in this regard).
If an injured party can show that the public agency, or its insurance company representative, engaged the injured party in settlement negotiations and, in a reasonable reliance on those negotiations, a Notice of Claim was not filed, the courts have been known to be lenient.
It has also happened that courts will exercise some leniency where prejudice to the public entity does not exist, since an investigation even within the ninety day period would have been futile–as where the injury, it is alleged, was caused by a snow and/or ice condition.
To anyone who was injured, and believes they have lost the opportunity to receive compensation for the effects of that injury because they missed the deadline for filing a Notice of Claim, do NOT make that assumption! Consult an experienced Personal Injury attorney who may well be in a position to “revive” a case you may have decided was moribund. The impact on your life, financial and otherwise, could be very significant!
Why Personal Injury Cases Take So Long: Part IV – Discovery | NYC Personal Injury Attorney
WHY PERSONAL INJURY CASES TAKE SO LONG PART IV: DISCOVERY :
Once a case begins, there is a “pipeline” of events through which the case must pass. This pipeline is meant to insure that the case moves along as expeditiously as possible and that the parties to the lawsuit, and in particular their attorneys, take the necessary measures in a timely fashion so that the case will reach a conclusion within a somewhat reasonable time. What “reasonable” consists of is undoubtedly measured differently by the client, and those used to working in the court system.
There are requirements for the submission of certain documents triggered by the initiation of the lawsuit. After the service of the “Complaint” upon the Defendant, the Defendant must serve an “Answer” upon the Plaintiff. The Answer virtually always contains a “Demand for a Bill of Particulars” from the Plaintiff .. The “Bill of Particulars”, provided to the Defendant by the Plaintiff, is then given in response to the Defendant’s Demand. The Bill of Particulars sets forth answers to questions posed by the Defendant in the Defendant’s Demand, and usually covers many items, including the way the accident occurred and the specific injuries sustained by the Plaintiff as a result of the accident.
This “pipeline” also consists of certain required conferences where the attorneys set dates for the exchange of information between the parties, and set the dates for depositions, (commonly known as Examinations Before Trial) of the parties–opportunities for all parties to question each other about the facts of the case. The information to be exchanged consists of such items as medical records, repair and maintenance records, employment information, school records and other items that may bear directly on the issues being raised in the particular case.
There is a target date set for when ALL discovery must be completed–often a year or more in advance of the first conference depending on the county where the case is brought–which is influenced by the case load in that court. At that point a Note of Issue must be filed, which places the case on the trial calendar of the court. Your case is then “on line” waiting for a trial. Again, depending on the county, this wait can be anywhere from several months to more than a year–depending on how crowded the trial calendar is in that county !
Delays often occur when one party or the other, for a variety of reasons, fails to provide the demanded information to the opposing party. In that event the recourse is for the party seeking the information to make a “motion” in court asking the court to intercede and force the recalcitrant party to produce the information sought. The aim is to attempt to complete all “Discovery” by the time set by the court for filing the “Note of Issue”. Contact one of our New York Personal Injury Attorneys today.
Why Personal Injury Cases Take So Long: Part II – Intake | New York Personal Injury Attorney
THE PERSONAL INJURY CASE – WHY PERSONAL INJURY CASES TAKE SO LONG, PART II : “THE INTAKE”
Having determined that a case should be accepted into their office, attorneys will be eager to begin acting upon certain crucial matters as soon as possible. The most important of all these crucial matters are those that involve time limits. There are many “time limits” that, if overlooked, could doom a case virtually before it gets off the ground. Other time limits, if missed, might not doom the case completely but could amount to a financially costly error.
“Notices of Claim,” that must be timely filed in all cases involving governmental or quasi-governmental authorities or agencies, are a top priority. Failure to file a properly completed “Notice of Claim”, within the proper time limit, upon the proper agent, and in the proper office designated specifically for that purpose will, in most instances, doom the case . (See this BLOG’s ARCHIVE for more on “NOTICES OF CLAIM”). In motor vehicle accidents, claims for “No-Fault “ benefits must be timely filed as well as notices to “MVAIC”, the State established agency, that will be available to pay an injured vehicle occupant in the event other vehicle insurance is, for whatever reason, not available. Failure to file appropriate documents in the prescribed fashion is a failure that can only bring gloom and doom to both an attorney and his client. For this reason alone, the experience of the attorney you choose is an invaluable commodity!
The basis of an attorney’s relationship with a client is the “Retainer Agreement”.
This sets forth the rules governing the relationship between the attorney and the client. It should be written in simple language, so that every client should be able to understand it. The client should feel absolutely free to read it carefully and ask any questions that may come up. And a client should ask for a copy of the agreement, if one is not offered by the attorney, to take with them for later review. An attorney is also obligated to send a “Retainer Statement”, which sets forth the identity of the client, the nature of the fee arrangement, and how the client was referred to this particular attorney, to the Office of Court Administration, which is then filed and kept until an eventual “Closing Statement” is sent at the end of the case, describing how the case concluded.
The work immediately following intake does not stop there. Investigations necessary to the eventual success of a case often begin at once. Scenes of accidents examined and photographed, witnesses interviewed while the incident is still fresh, clients advised NOT TO SPEAK AT ALL WITH INSURANCE COMPANY AGENTS, hospital records ordered, and a myriad of other items, each specific to the needs of the individual case before the attorney, are tackled at this early stage. There will be plenty to do later on as the case develops to make it worthwhile to see these important preliminary steps are attended to now. At The Orlow Firm our New York City Personal Injury Attorneys can help you with your case. Call us today.
Why Do Personal Injury Cases Take So Long? Introduction
THE PERSONAL INJURY CASE: WHY PERSONAL INJURY CASES TAKE SO LONG: Introduction
One of the inevitable questions a new, or potentially new, client will ask is how long can he or she anticipate it will take until their case is finished. The honest answer is seldom welcome: though cases have been known to finish in a matter of months, these are the very rare exceptions. The client should realistically expect the case to last two to four years, with two and a half to three years being average!
It is fair for the client to wonder why a case should take so long.
The purpose of the articles in this series is to make an attempt to explain why such a seemingly long time is needed to complete this task. At The Orlow Firm we want our clients to understand every aspect of their case. While the explanation may not alleviate the distress at the long haul involved, it will, hopefully, clarify the reasons and thereby give the client a basis for seeing at least some benefit to this lengthy time factor.
Our New York City Personal Injury Attorney series will begin with the “Pre-Intake” phase, followed by “The Intake”, “Beginning Litigation”, “Discovery” and then “Settlement or Trial”.
Stunning Conclusion by a US Federal District Court Judge | False Arrest | NYC Personal Injury Attorney
FALSE ARREST | STUNNING CONCLUSION BY A UNITED STATES FEDERAL DISTRICT COURT JUDGE
One of the most erudite, intellectually gifted and respected judges on the federal bench, long time Eastern District Court Judge Jack Weinstein, stunningly admonished the New York City Police Department for “widespread falsification by arresting officers.”
What was particularly astonishing is that, in deciding against a motion by the New York City attorneys to have a federal case thrown out, on the basis that no evidence was presented to the court that police lying is tolerated by the NYPD, the judge relied not on evidence in the case before him. Rather, the judge stated that his decision that police lying may well be construed as an official policy of the NYPD, rests on “Informal inquiry…” among the judges of the Eastern District and other “…anecdotal evidence of repeated, widespread falsification by arresting officers…” of the NYPD.
The judge noted that while the vast majority of police officers are honest,
and in spite of the fact that training for recruits has improved and disciplinary action, when taken, is tough, there is evidence that an attitude, which condones lying among police officers, is sufficiently widespread to suggest that it amounts to a “custom or policy” by the City of New York. This, in turn, amounts to approval of illegal conduct by the City and the Police Department.
In practical terms, this decision certainly boosts the position of parties in their attempts to substantiate the grounds that must be demonstrated to succeed in Federal Courts, in cases based on violation of the Federal Civil Rights statute, usually relied upon in false arrest cases. For the lawyers representing clients falsely arrested, this decision will reverberate in a manner that should bring greater relief to those unjustly charged. If you have ever been unjustly charged of a crime you should call one of our NYC Personal Injury Attorneys at The Orlow Firm.
Sports Injuries | Assumption of Risk | New York Personal Injury Attorney
Very few venues in our society can top the sports arena as sites of accidents resulting often in serious injuries.
The subject of the injury may be either a participant in the sport, or an observer of a sporting event : The race car driver, the wide receiver, the baseball player sliding into third base, going for the lay up; or being hit by a foul ball in the bleachers, injured by an out of control race car, slammed by a wild hockey puck into the stands. More disturbing, the little leaguer injured in any of a wide variety of sports engaged in by youngsters, and supervised by well meaning volunteer adults. Add to this the myriad sports engaged in by school teams at all levels of age and proficiency, and what emerges is a plethora of sources for voluminous potential litigation. Just imagine, a lawsuit for every injury incurred in the sporting arena !
Enter the doctrine of “Assumption of Risk”!
What this doctrine essentially means is that a person may not recover for any injury which that person sustains, when that person voluntarily exposes him or herself to a known dangerous activity, event or possible consequence of such activity or event. Being tackled, flying pucks, speeding baseballs, outfield collisions, race car crashes–all known and anticipated possibilities to anyone participating in, or watching the event.. Injured by one of these or literally scores of other “every day” sporting mishaps, and you want to sue–“fuggedaboudit”!! “Assumption of Risk” – you knew, or darn well should have known, about the risks before you started. The courts will not be sympathetic.
Of course, the doctrine of “Assumption of Risk” does not, by any means, eliminate each and every injury incurred during the course of a sporting event from being litigated. Especially in the case of younger athletes and school age children, the courts will look to factors that may well overshadow the “Assumption of Risk” doctrine.
The child injured when sliding into third base? Was the coaching “negligent”? Was the child properly taught how to slide, minimizing potential injury to him/herself or the opposing team’s player? Did all the equipment used meet the required safety standards? Was the base movable and detachable? And of course, these issues can, and are, raised by experienced attorneys, in every situation where a child in particular, but adults as well, are seriously injured in a sports accident. While the doctrine of “Assumption of Risk” looms very large indeed, in the field of sports injuries, a close examination of legitimate additional reasons for the injury having occurred should be pursued in all such potential cases. If you feel that this includes you please contact one of our experienced New York City Personal Injury Attorneys to assess your situation.
Orlow, Orlow, and Orlow Fall 2009: UPDATE about our firm
The firm of ORLOW, ORLOW & ORLOW, PC has been practicing NEW YORK PERSONAL INJURY law since 1981. While currently composed of a father and two sons, the firm is about to expand by merging with the firm of ORLOW & ORLOW, PC, a PERSONAL INJURY law firm since 1966. ORLOW & ORLOW, PC consisted of the father and daughter team of Alexander and Jodi Orlow.
Congratulations to Jodi Orlow, New York Civil Court Judge
As of January, 2010, Jodi Orlow will ascend to the bench as a judge in the Civil Court in Queens County. At that time Alexander Orlow will join the firm of ORLOW, ORLOW & ORLOW, PC in an “Of Counsel” capacity, adding his wealth and years of experience to the team of attorneys working on behalf of our firm’s clients.
Orlow, Orlow and Orlow to become the Orlow Law Firm
The firm will become known as THE ORLOW FIRM, and can be contacted at all current telephone numbers. The staff of the firm will also expand to meet the increased volume of the firm so that the service to which the clients of both firms were accustomed to can be maintained.
We look forward to continuing to serve our New York clients with the same energy, respect and devotion as they have come to expect.