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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.

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Attorney answers 6

Posted

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 Eric@RothsteinLawNY.com. 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.

Asker

Posted

They told me over the phone I was following too close to the vehicle in front of me and I was partially responsible for the total loss of my car. Fact is the i didn't even touch the car in the front until the 3rd driver rear-ended me caused me to collide with 1st vehicle.

Posted

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.

Asker

Posted

The photos only show damages from my front (engine/radiator). My back looks totally fine. The one who hit me has Country Wide.

Anthony A. Ferrante

Anthony A. Ferrante

Posted

The photos certainly do not help then. Countrywide is consistently rated one of the worst insurance companies in the state. They will always fight these situations and honestly, without a lawyer on your side you will be hard pressed to force them to pay. Do you have Collison coverage?

Asker

Posted

Yeah I know, what luck right? At the wrong place at the wrong time with the wrong driver having the worse insurance company in the state...what luck. No I do not have Collision coverage with my insurance company. They told me they can't do anything to help...am I screwed? Maybe I can subpoena my insurance company to give me the statements they took from the most front driver that stated i was rear-ended and pushed into his car? Maybe I can get a notarized letter from the most front driver stating that also? Don't want to subpoena the front driver since I went to the court once (his lawyer delayed another court date) and the hearing was so fast people went in and out quickly.

Asker

Posted

His lawyer* I meant the 3rd driver, the one I'm suing. Not the front driver.

Posted

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

Only 29% Contingency Fee! Phone: 215-510-6755 www.InjuryLawyerPhiladelphia.com

Asker

Posted

I only have liability, no collision, no comprehensive. Will they still help me fight it?

Posted

let your insurance know. when is the court date?

Asker

Posted

My insurance told me I don't have collision or comprehensive therefore they will not do anything for me.

Asker

Posted

Is that true?

Posted

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 www.mynewyorkcitylawyer.com.

Asker

Posted

No lawyer wants to take my case because it's very little amount $2xxx.xx Can I subpoena a witness in small claims if it's judged by a arbitrator?

Posted

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."

Asker

Posted

Wouldn't the lawyer say that I am also negligently causing the accident because I followed too close to the car in front of me? I'm afraid that he would blame me and say if I didn't follow too close to the car in front of me than my front would not have been damaged/totaled even if their defendant rear-ended.

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