Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 24, 2020

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New York auto accident law is a bit different than other states’ laws when it comes to issues of fault, vicarious liability and pain & suffering. These can be complicated issues, so we asked an expert to provide us with an overview of each.

The two parts of no-fault insurance

According to Ira Slavit, a New York attorney in practice for over 20 years whose firm concentrates its practice in personal injury matters and medical malpractice litigation, no-fault insurance law in New York essentially divides cases into two parts. He explained:

The first part concerns first-party benefits, where hospital bills, doctor bills and lost wages are paid. The second part concerns pain and suffering. So generally, the first thing to do is make sure that the no-fault insurance company is identified and that an application is submitted timely. At the same time, it is important that the injured party is receiving the proper medical treatment that’s required for the injuries that they have sustained in the accident.

Vicarious liability: A rebuttable presumption

New York State has what’s called vicarious liability, which means that an owner of the vehicle is responsible for the negligence of the individual who is operating the vehicle with the owner’s permission and consent, according to Slavit. He told us that while some states require that the driver be operating the vehicle in furtherance of the business of the owner or some other more restrictive limitation, New York is different. “In New York, as long as the driver is operating with the permission and consent of the owner, the owner is also legally responsible for any negligence. There’s actually a presumption of permissive use in New York. It’s a rebuttable presumption. What that means is that it’s presumed that the driver has permission and the burden falls to the owner to prove otherwise.”

New York’s limitations on pain & suffering

New York’s no-fault law, while intended to make it easier for people to have their medical bills and lost earnings paid without having to prove negligence on the part of the driver, actually makes it harder to sue and recover for pain and suffering, according to Slavit. He explained:

The New York no-fault motor vehicle insurance law requires that in order for there to be a recovery for pain and suffering, the injury sustained has to qualify as a serious injury as defined by the no-fault law. There are nine categories of serious injury, ranging from death, to loss of a fetus, to disfigurement, to permanent injury, permanent consequential limitation of use or a total disability of a non-permanent nature that encompasses at least 90 out of the first 180 days following the accident. If the injuries don’t qualify as a serious injury, then the lawsuit will get dismissed.

If you’ve been injured in an automobile accident in New York, contact an experienced New York auto accident attorney to discuss your situation confidentially.