Legal Question in Personal Injury in New York

hi,
I contacted you before and you did respond. You told me if I feel that my case is not being handled properly to contact you again. here is my dilemma. I was hit by a car and injured my knee in 2007 of April. The case is has dragged on since then. I had surgery for the injury and 9 months of surgery. Now my lawyer wrote me and told me that i don't meet the New York State law known as "threshold".and my instant case can/will be dismissed if I wasn't out of commission for 90 days out of the first 180 days. I must have missed time from work, and have been treated for at least this period.
I have to list all activities that I can no longer perform. Revisit my surgeon and doctor. I already had a hearing about the case and saw their doctor. They are basing this decision on a pre-existing injury that I had in 2005. When I got hit in the leg with a chair on the job. The same leg as the one the car hit. Is this fair? The injury I received in 2005 was treated with therapy. I was diagnosed with bruising.

Asked on 10/21/11, 3:56 pm

2 Answers from Attorneys

Michael Krigsfeld William Schwitzer & Associates, P.C.

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Well thank you for writing back. The first thing I want to know is if the case has formally been filed in court? You have 3 years from the date of the incident to file suit or else the statute of limitations has run and you will be unable to recover for your injuries. Assuming that the case has been filed in court, even though you have a prior existing injury to the same leg does not mean that you are precluded for recovering for your current injury. A pre-existing condition can be made worse from another accident. So if you had bruising before and not a more serious injury that required surgery then you ought to be compensated for the additional injury sustained. That being said, the 90/180 rule your attorney is referencing usually is used for soft tissue injuries. Serious injuries, such as a fracture or torn ligaments, are enough to breach the serious injury threshold of the NYS Ins. Law. The surgery, coupled with your other injuries and treatment can be used to satisfy this requirement. Missing work, if any, is only one factor looked at in determining whether you suffered a serious injury. Did your surgeon state the the injury to the leg was caused by your accident? This is something else that needs to be assessed.

I would be glad to discuss your case with you some more. Feel free to email me any questions you may have during the weekend. My email is [email protected]. If you can get copies of your police report, MRI reports and surgeons report I can take a brief look at them. I may not be able to give you a definite opinion but I would have a much better idea about your case. If you feel that your current attorney is not properly representing your case and do not wish to accept what is currently being offered by the insurance company then I would be glad to take over your case. Of course, I'd like to be able to properly evaluate it to make sure you have a better case than what your attorney is telling you. If I happen to agree with him after my evaluation then I will advise you as much.

I look forward to hearing from you and being able to help you out however I can.

Michael Krigsfeld, Esq.

Answered on 10/21/11, 4:29 pm

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