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How do I fight comparative negligence law in auto accident small claims court?

New York, NY |

I was rear - ended and pushed into the car in front of me . My car was totaled and the insurance of the driver that rear - ended me sent me a letter saying " This offer represents a compromise figure based on State Comparative Negligence Law which means that if our insured is only partially responsible for this loss , your claim for damages will be only partially reimbursed . If the offer represents 1990s no reduction based on comparative negligence has been taken . 1990s PD settlement offer for the rear damage only . " How is he PARTIALLY responsible ? He rear - ended me and pushed me into another car and because of that it totaled my car . Please help me fight this case .

I don't know why it is showing 1990s, it should be 100 percent.

Attorney Answers 6

  1. Under NY law, the car that stuck you in the rear is presumed negligent and will have to give a non-negligent explanation for why the accident took place. The most often given is the car in front made a short or sudden stop. Judges usually reject that defense. Another popular (and more successful) one is that the lead car suddenly changed lanes directly in front of the car causing it to rear-end the lead car.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.

  2. You can fight this by securing the affidavit of the person in the first car. If that person backs up your story and agrees to give you a notarized statement where they swear to tell the truth under penalties of perjury, that would go a long way. Also photos of the damage, if they show that the majority of your damage was in the rear portion of your vehicle, would help your case.

    Most likely the driver of car three is saying that you struck the car in front of you first. The more cynical view is that this drivers insurance company is forcing him to tell that story, which allows them to pay less. If be interested in knowing who the carrier is, as this is standard operating procedure with many NY insurance carriers.

    If you are injured you can seek medical treatment under your own no fault auto policy and then may be able to enlist the help of a local qualified attorney. Good luck!

    The aforementioned opinion does not constitute legal advice and is for general educational purposes only. See an attorney licensed in your jurisdiction for competent legal advice. No attorney-client relationship has been formed through the within legal question and answer session.

  3. Let your insurance company resolve this. That's why we all have insurance.

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  4. let your insurance know. when is the court date?

  5. You need to present your witnesses in court to testify about how the accident occurred. Bring along the police report, photos of both vehicles and two written estimates or one paid bill showing the damage to your vehicle. If you want , then you can have a lawyer represent you in small claims court. good luck.

    If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or

  6. I do not see that the case is defensible by the other vehicle and its insurer. Under New York Law comparative negligence applies only if both operators of the two vehicles negligently caused or contributed to the collision. That is how I would argue the case along the New York vehicle and traffice law section which prohibits a motor vehicle operator from "following too closely."

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