There are two main requirements that an injured plaintiff must prove with admissible evidence to be entitled to recover damages in a New York personal injury action: (1) the defendant(s)' liability, which is usually based on the a finding that the defendant(s) was negligent in causing the plaintiff's injury; (2) the damages caused by the defendants' negligent conduct. This post aims to provide a basic guide of the types of damages that may be available, and the proof typically required to recover them.
The two most common categories of damages that are sought are considered "compensatory damages." These are intended to have the wrongdoer make the victim whole, so as to assure that the victim receives fair and just compensation commensurate with the injuries sustained.
1. Economic (Special) Damages
Economic damages compensate for provable monetary losses caused by the injury. Common categories include:
- Past and future medical expenses: hospital bills, surgeries, emergency care, diagnostic testing, medications, physical therapy, assistive devices, home health aides, and anticipated future treatment. In New York, damages for past and future medical expenses must be supported by competent evidence that establishes the need for, and the cost of, medical care. This may come in the form of past medical bills, but future medical expenses generally require competent medical expert testimony.
- Lost wages and lost earning capacity: compensation for time missed from work and for diminished ability to earn in the future. Past pay stubs, tax returns and employer records are often used to establish earnings prior to the incident, and vocational or economic experts are often employed to testify as to future projected losses.
Documentation is critical: medical records and bills, wage records, receipts, and expert reports make economic damages persuasive and quantifiable.
2. Non-Economic (General) Damages in NY
This is compensation for more intangible harm. Unlike economic damages, non-economic damages are subjective. In New York, juries and judges weigh the severity, duration, and permanence of injuries, supported by medical testimony, lay testimony, and evidence showing how life has changed. They attempt to provide fair compensation for injuries that do not have a direct monetary invoice, including:
- Pain and suffering: physical pain and discomfort caused by the injury.
- Emotional distress and mental anguish: anxiety, depression, PTSD, or humiliation stemming from the incident.
- Loss of enjoyment of life: inability to participate in hobbies, activities, or social roles previously enjoyed.
3. Loss of Consortium or Services
Unlike the damages listed above that are recoverable by the injured plaintiff, a loss of consortium claim is a derivative claim asserted by the injured person's spouse. These damages not only can consider the impact of the plaintiff's injuries on marital relationships, companionship, and household assistance.
Where a jury awards the plaintiff a particularly large non-economic or economic damages award, the defendant may move to set aside the award as excessive in the original, lower, Supreme Court. If that motion is unsuccessful, the defendant may appeal to the higher, intermediate Court, the Appellate Division. Conversely, a plaintiff that may also move and appeal on the basis that the jury's award was too low to properly compensate for the plaintiff's injuries as established by the evidence.
Generally, a jury award for damages like past and future pain and suffering will not be set aside unless the Court finds that the award "deviates materially from what would be reasonable compensation." When assessing the reasonableness of the compensation, the Court will often measure the award against awards that were sustained in cases with comparable injuries, although the awards in those comparable cases are not binding upon the Court.
Punitive (Exemplary) Damages in New York
These damages are rarely awarded in New York.
Unlike compensatory damages, punitive damages are intended to punish the wrongdoer and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future.
Punitive damages are infrequently awarded in New York and require proof of intentional wrongdoing, recklessness, or a conscious disregard for safety beyond ordinary negligence. The bar for recovery is high and depends on clear and convincing evidence.
Survival and Wrongful Death Claims: When an Injury Causes Death
If an injured person dies, New York law allows two distinct claims:
- Survival action: preserves the decedent's (the person who died) pre-death claims (medical expenses, pain and suffering experienced before death, etc.) and is brought by the estate of the deceased. For example, if a pedestrian is struck by a truck and suffers serious physical injuries that ultimately cause the pedestrian's death a week later, and there is objective medical evidence that the pedestrian was conscious and experienced pain and suffering during that week, the decedent's estate may assert this type of claim.
- Wrongful death action: compensates survivors for losses resulting from the death, such as loss of financial support, loss of parental guidance, funeral expenses, and loss of companionship. Statutory rules determine who may sue and what damages are recoverable.
Interest, Costs, and Attorney's Fees
Pre- and post-judgment interest may be awarded and increases the real value of a verdict over time.
Court costs and litigation expenses (filing fees, certain expert fees) can be part of a final judgment.
Attorney's fees: Because New York follows the "American Rule," where each side generally pays its own fees unless a statute or contract provides otherwise, these are not recoverable as a separate category of damages.
Other Considerations: Comparative Fault and Multiple Defendants
New York applies comparative negligence: a plaintiff can recover even if partly at fault, but the award is reduced by the plaintiff's percentage of fault as determined by the jury. In cases where multiple defendants are found to be at fault for the plaintiff's injuries, the jury will have to determine the percentage of each defendant's fault.
Practical Steps to Maximize Recovery
Seek prompt medical attention and follow through with recommended treatment.
Keep all medical records, bills, receipts, pay stubs, and documentation of daily limitations.
Photograph injuries, accident scenes, and property damage; preserve evidence.
Report the incident to appropriate authorities (police, employer, property owner). Note that statements given by the plaintiff and documented in a report may be used against the plaintiff in a subsequent litigation, particularly if that statement is construed as against the plaintiff's interest.
Consult an experienced New York personal injury attorney early to preserve claims, collect evidence, and handle insurance and lien issues.
The longer an injured person waits to preserve evidence and consult with an attorney, the higher the likelihood that potentially important information may be permanently lost. For example, many surveillance camera systems automatically delete footage after a certain amount of time if actions are not taken to preserve a particular video. In addition, over time, it may be more difficult to identify or track down witnesses, and the witnesses' ability to accurately recall the circumstances surrounding the incident diminish over time.
In addition, New York has statutes of limitations that provide firm limitations on how long a claim may be asserted following the injury-producing incident. In most actions against a municipal corporation or agency — such as the City of New York or the Metropolitan Transportation Authority — a Notice of Claim must be filed within 90 days of the incident.
Conclusion and How We Can Help
Recoverable damages in New York personal injury cases include both economic losses you can document and non-economic harms that require careful proof. The successful recovery of full damages often depends on timely evidence-gathering, expert testimony for future losses, and strategic negotiation to resolve liens and insurance claims.
If you or a loved one were injured, our firm can evaluate your case, identify all available damages, handle negotiations with insurers and lienholders, and pursue maximum compensation. Contact Grandelli & Eskenasi for a free consultation: we handle personal injury matters on a contingency-fee basis, so you pay nothing unless we recover for you.