Auto Accident Demand Letter - New York

DEMAND FOR SETTLEMENT — MOTOR VEHICLE COLLISION

STATE OF NEW YORK

[________________________________]
Attorneys at Law
[________________________________]
[________________________________], New York [____]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[________________________________]
[________________________________]
[________________________________], [____] [____]

RE: SETTLEMENT DEMAND — MOTOR VEHICLE COLLISION
Our Client: [________________________________]
Date of Loss: [__/__/____]
Your Insured: [________________________________]
Policy Number: [________________________________]
Claim Number: [________________________________]

Dear [________________________________]:

This firm represents [________________________________] ("Claimant") in connection with the motor vehicle collision that occurred on [__/__/____] in [________________________________] County, New York. This letter constitutes a formal demand for settlement of all claims arising from this incident.

I. NEW YORK-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under CPLR 214(5), the statute of limitations for personal injury actions is three (3) years from the date of injury.

The limitations period in this matter expires on [__/__/____].

B. Pure Comparative Negligence

New York follows pure comparative negligence under CPLR 1411. A plaintiff may recover damages even if the plaintiff is more at fault than the defendant. Damages are simply reduced by the plaintiff's percentage of fault. This is the most plaintiff-favorable negligence standard available.

Our client bears no fault whatsoever for this collision.

C. No-Fault State — Serious Injury Threshold

New York is a mandatory no-fault state. Under Insurance Law Article 51, every motor vehicle insurance policy must provide Personal Injury Protection (PIP) / no-fault benefits. To pursue a tort claim for non-economic damages (pain and suffering), the plaintiff must demonstrate a "serious injury" as defined in Insurance Law § 5102(d).

D. Serious Injury Categories — Insurance Law § 5102(d)

A "serious injury" is a personal injury that results in one or more of the following:

☐ Death
☐ Dismemberment
☐ Significant disfigurement
☐ Fracture
☐ Loss of a fetus
☐ Permanent loss of use of a body organ, member, function, or system
☐ Permanent consequential limitation of use of a body organ or member
☐ Significant limitation of use of a body function or system
☐ A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury (the "90/180-day rule")

E. Our Client's Serious Injury Category

Our client meets the serious injury threshold under the following categories:

☐ Category: [________________________________]
☐ Category: [________________________________]

[See detailed analysis in Section II below]

F. No-Fault PIP Benefits

Under Insurance Law § 5103, New York no-fault benefits provide:

• Up to $50,000 in basic economic loss benefits per person
• Medical expenses (reasonable and necessary)
• 80% of lost earnings (up to $2,000/month for up to 3 years)
• Other reasonable and necessary expenses (up to $25/day)

G. No Damage Caps

New York does not impose statutory caps on compensatory damages in automobile accident personal injury cases.

H. Owner Liability

Under VTL § 388, the owner of a motor vehicle is vicariously liable for injuries caused by any person operating the vehicle with the owner's permission, express or implied.

I. Minimum Insurance Requirements

New York requires minimum liability coverage of $25,000 per person / $50,000 per accident for bodily injury and $10,000 for property damage, plus $50,000 no-fault (PIP) under VTL § 310 and Insurance Law § 5103.

II. SERIOUS INJURY THRESHOLD ANALYSIS

A. Threshold Categories Satisfied

Our client satisfies the serious injury threshold under Insurance Law § 5102(d) as follows:

Category 1: [________________________________]

[________________________________]
[Provide detailed description of how this category is met, with specific medical evidence]

Category 2 (if applicable): [________________________________]

[________________________________]

B. Medical Evidence Supporting Threshold

Objective Clinical Evidence:

Range of Motion Deficits (with percentages):

Permanency Opinions:

• Treating Physician: [________________________________] — Opinion: [________________________________]
• Specialist: [________________________________] — Opinion: [________________________________]

C. 90/180-Day Rule Analysis (If Applicable)

If relying on the 90/180-day category:

• Date of accident: [__/__/____]
• 180-day period: [__/__/____] to [__/__/____]
• Days of disability within 180-day period: [____] days (must be ≥ 90)
• Activities curtailed: [________________________________]
• Medical documentation of disability: [________________________________]
• Employer verification of absence: [________________________________]

Supporting Case Law:

The evidence meets the standards established by:

• Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002)
• Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005)
• [Additional relevant case law: ________________________________]

III. PRESERVATION OF EVIDENCE DEMAND

☐ Complete claims file, including all adjuster notes and evaluations
☐ All photographs, videos, and surveillance footage
☐ All recorded or written statements
☐ Vehicle inspection reports, repair estimates, and salvage records
☐ Event Data Recorder (EDR) / "black box" data
☐ Cell phone records of the insured driver
☐ All insurance policy documents

IV. STATEMENT OF FACTS

On [__/__/____], at approximately [____] [a.m./p.m.], our client was [________________________________] on [________________________________] in [________________________________] County, New York. At that time, your insured, [________________________________], was operating a [____] [________________________________] (VIN: [________________________________]).

[________________________________]
[Describe the collision in detail]
[________________________________]

The [________________________________] [NYPD / New York State Police / County Sheriff / Municipal Police] responded to the scene and prepared Accident Report No. [________________________________]. The report [________________________________].

V. LIABILITY ANALYSIS

A. Defendant's Negligence

Your insured breached the duty of care by:

☐ Failing to maintain a proper lookout — VTL § 1146
☐ Following too closely — VTL § 1129(a)
☐ Failing to yield the right of way — VTL § 1140 et seq.
☐ Speeding or exceeding safe speed — VTL § 1180
☐ Running a red light or stop sign — VTL § 1111, § 1172
☐ Improper lane change — VTL § 1128
☐ Distracted driving / cell phone — VTL § 1225-c, § 1225-d
☐ Driving while intoxicated — VTL § 1192
☐ Failure to exercise due care to avoid pedestrian/cyclist — VTL § 1146
☐ Other: [________________________________]

B. Owner Liability

Under VTL § 388, the vehicle owner [________________________________] is vicariously liable for the negligence of [________________________________] who was operating the vehicle with the owner's express or implied consent.

C. Negligence Per Se

Violation of the VTL constitutes negligence per se. Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920) (Cardozo, J.).

VI. MEDICAL TREATMENT SUMMARY

A. Emergency / Immediate Treatment

B. Ongoing Treatment

C. Diagnosis Summary

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

D. Prognosis

[________________________________]

VII. ITEMIZED MEDICAL EXPENSES

Estimated Future Medical Expenses

VIII. LOST WAGES AND EARNING CAPACITY

Note: No-fault covers 80% of lost earnings up to $2,000/month for up to 3 years. The third-party claim includes the remaining 20% and amounts above the no-fault cap.

Employer: [________________________________]
Position: [________________________________]
Rate of Pay: $[________] per [hour/week/month/year]

IX. PROPERTY DAMAGE

X. PAIN AND SUFFERING / NON-ECONOMIC DAMAGES

☐ Physical pain and suffering (past and ongoing)
☐ Mental anguish and emotional distress
☐ Loss of enjoyment of life
☐ Inconvenience and disruption of daily activities
☐ Scarring and/or disfigurement
☐ Fear and anxiety
☐ Sleep disruption
☐ Loss of quality of life

New York does not cap non-economic damages. Full compensation is available.

Non-Economic Damages Claimed: $[________]

XI. LOSS OF CONSORTIUM

[If applicable:]

Claimant's spouse, [________________________________], has suffered a loss of consortium. New York recognizes loss of consortium as a derivative cause of action. The consortium claim is not subject to the serious injury threshold. Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746 (1980).

Loss of Consortium Claimed: $[________]

XII. TOTAL DAMAGES SUMMARY

XIII. SETTLEMENT DEMAND

Based upon the foregoing, we hereby demand the sum of:

$[________________________________]

This demand is open for thirty (30) days from the date of this letter, expiring on [__/__/____].

XIV. BAD FAITH WARNING

Insurance Law § 2601 — Unfair Claims Settlement Practices

Under Insurance Law § 2601, no insurer shall engage in unfair claim settlement practices. The Insurance Department Regulation 64 (11 NYCRR § 216) sets forth specific standards for prompt, fair, and equitable settlements.

Common-Law Bad Faith

New York courts recognize a cause of action for bad faith failure to settle within policy limits. Pavia & Harcourt v. Nationwide Mut. Ins. Co., 82 N.Y.2d 613, 606 N.Y.S.2d 869 (1994). An insurer must give equal consideration to the insured's interests as its own in deciding whether to settle.

If your insured's damages exceed policy limits and you fail to settle this claim within policy limits when you could and should have, you may face liability for the entire judgment, including amounts in excess of policy limits.

XV. NOTICE OF CLAIM — GOVERNMENT ENTITIES

[If applicable:]

If a government entity is involved (municipal bus, city vehicle, state vehicle, etc.), a Notice of Claim must be served within ninety (90) days under General Municipal Law § 50-e. The statute of limitations is reduced to one year and ninety days under General Municipal Law § 50-i.

[________________________________]

XVI. ENCLOSED DOCUMENTS

☐ Medical records and bills from all treating providers
☐ No-fault payment records and EOBs
☐ Police/accident report
☐ Photographs of vehicle damage and injuries
☐ Employer verification of lost wages
☐ Insurance declarations page
☐ ROM measurements and permanency reports
☐ [________________________________]

XVII. RESPONSE REQUESTED

Please confirm receipt and provide a substantive response within thirty (30) days.

Respectfully submitted,

[________________________________]
Attorneys for [________________________________]

By: _________________________________
[________________________________]
New York Bar Registration No. [________________________________]
[________________________________]
[________________________________], New York [____]
Telephone: [________________________________]
Email: [________________________________]

NEW YORK PRACTICE NOTES AND CHECKLIST

☐ Serious Injury Threshold: Critical — must be established with objective medical evidence under Insurance Law § 5102(d)
☐ Pure Comparative Negligence: Recovery allowed regardless of fault percentage (CPLR 1411); damages reduced proportionally
☐ No Damage Caps: Full compensation available
☐ Owner Liability: VTL § 388 — owner vicariously liable for permissive use
☐ No-Fault Benefits: $50,000 basic economic loss; 80% wage loss up to $2,000/month; unlimited medical (subject to utilization review)
☐ 90/180-Day Rule: Document disability carefully within the 180-day window
☐ ROM Measurements: Quantified range of motion deficits essential for threshold; compare to norms
☐ Permanency: Treating physician's permanency opinion critical for non-fracture/non-dismemberment categories
☐ Notice of Claim: 90 days for government entities (General Municipal Law § 50-e)
☐ Grave Injury: N.Y. Workers' Compensation Law § 11 — workers' comp exclusivity exception for grave injuries
☐ Minimum Insurance: $25,000/$50,000/$10,000 plus $50,000 no-fault (VTL § 310)

SOURCES AND REFERENCES

• CPLR 214(5) (Statute of limitations)
• CPLR 1411 (Pure comparative negligence)
• Insurance Law § 5102(d) (Serious injury definition)
• Insurance Law § 5103, § 5104 (No-fault benefits; causes of action)
• Insurance Law § 2601 (Unfair claims practices)
• Vehicle and Traffic Law (VTL) §§ 388, 310, 1111 et seq.
• New York State Legislature: https://www.nysenate.gov/legislation